Acceptance of the Equipment. The Supplier shall permit the Customer or authorised representatives to make any inspections or tests which may reasonably be required and the Supplier shall afford all reasonable facilities and assistance free of charge at the Supplier’s premises. No failure to make complaint at the time of such inspection or tests and no approval given during or after such tests of the Equipment or inspections shall constitute a waiver by the Customer of any rights or remedies in respect of the Equipment and, in particular, the Customer retains the right to reject the Equipment Unless formal acceptance testing in accordance with clauses 5.6, 5.7, 5.8, 5.9, 5.10, 5.11 and 5.12 is identified as a requirement on the Order then in respect of Equipment supplied the Customer may by written notice to the Supplier reject any of the Equipment which fails to conform to the approved sample or fails to meet the Specification. Such notice shall be given within a reasonable time after delivery to the Customer of the Equipment concerned. If the Customer shall reject any of the Equipment pursuant to this clause the Customer shall be entitled (without prejudice to other rights and remedies) either: to have the Equipment concerned as quickly as possible and in any event within 5 Working Days either repaired by the Supplier or (as the Customer shall elect) replaced by the Supplier with Equipment which conform in all respects with the approved sample or with the Specification and due delivery shall not be deemed to have taken place until such repair or replacement has occurred; or to treat the Agreement as discharged by the Supplier’s breach and require a refund from the Supplier in respect of the Equipment concerned together with payment of any additional expenditure over and above the price incurred by the Customer in obtaining replacement goods in replacement provided that the Customer uses its reasonable endeavours to mitigate any additional expenditure in obtaining replacement equipment. The issue by the Customer of a receipt note for the Equipment shall not constitute any acknowledgement of the condition, quantity or nature of that Equipment. Unless otherwise required in the Customer’s Order, the Supplier shall guarantee the Equipment for the period quoted in the Supplier’s tender submission, after installation. If the Customer shall within such guarantee period or within 25 Working Days thereafter give notice in writing to the Supplier of any defect in any of the Equipment as may have arisen during such guarantee period under proper and normal use, the Supplier shall (without prejudice to any other rights and remedies which the Authority may have) as quickly as possible remedy such defects (whether by repair or replacement as the Customer shall elect) without cost to the Customer. Any Equipment rejected or returned by the Customer as described in clause 5.2 shall be returned to the Supplier at the Supplier’s risk and expense. Where the Order identifies that formal acceptance testing is required and in any event in respect of Equipment supplied the Supplier shall, carry out formal acceptance in accordance with clauses 5.6, 5.7, 5.8, 5.9, 5.10., 5.11 and 5.12 during the Acceptance Procedures Period, make available the Equipment for the Acceptance Procedures to be performed. The Customer shall accept the Equipment in accordance with the Acceptance Procedures. The Acceptance Procedures shall be recorded as successful and the Supplier notified accordingly where all the relevant Acceptance Criteria are met. The Acceptance Procedures shall be recorded as unsuccessful and the Supplier notified accordingly where any of the relevant Acceptance Criteria are not met. If the Acceptance Procedures, in respect of any Equipment have not been recorded as successful pursuant to Clause 5.3 by the end of the Acceptance Procedure Period, the Customer shall have the right either: to accept such part of the Equipment as the Customer may decide and pay a pro‑rated Charge therefore or such other charge, as may be agreed between the parties; without prejudice to its other rights and remedies, to extend the Acceptance Procedures Period for a period or periods, specified by the Customer, during which the Supplier shall correct the fault which caused the Acceptance Procedure to be recorded as unsuccessful; or to terminate the Order (such termination to be without prejudice to the other rights and remedies of the Customer and the other obligations hereunder of the Customer and the Supplier). In the event that the Customer extends the Acceptance Procedures Period for a period pursuant to Clause 10.2 and the Acceptance Procedures have not been recorded as successful by the end of that period, the Customer shall have the right either: to accept such of the Equipment as the Customer may decide and pay a pro‑rated Charge therefore or such other charge, as may be agreed between the parties; to extend the Acceptance Procedures Period for a further period in accordance with Clause 5.10.2; to terminate the Order (such termination to be without prejudice to the other rights and remedies of Customer and the other obligations hereunder of the Customer and the Supplier). Without prejudice to any other rights (including the right to recover damages) that may accrue to the benefit of the Customer under the Order or otherwise, in the event that the Customer elects to terminate the Order pursuant to Clause 5.10.3 or Clause 5.11.3, the Customer shall be entitled to return any or all of the Equipment which has previously been accepted by the Customer for the Order and receive a full refund of any monies paid in connection therewith. Notwithstanding the provisions of this Clause 5 in the event the Customer uses the Equipment other than for the purpose of testing it or with the agreement of the supplier, the Customer shall be deemed to have accepted the Equipment. Where liquidated damages apply then without prejudice to any other remedies available to the Customer: if there is delay in delivery such that the Equipment is not delivered in accordance with the period identified in the Specification or such other period as may be agreed between the Customer and the Supplier then the Supplier shall pay to the Customer as liquidated damages for each day of delay the amount specified in the Order or if none is specified then a sum equal to one percent of the value of the Equipment ordered up to the end of the Liquidated Damages Period. Such payment shall be in full and final settlement of the Supplier’s financial liability for any loss or damage incurred by the Customer during the Liquidated Damages Period, and if the Equipment has not been delivered by the end of the Liquidated Damages Period, the Customer shall be entitled to claim any remedy available to it for loss or damage incurred by it thereafter. if the Acceptance Procedures have not been recorded successful in accordance with clause 5.3 by the end of the Acceptance Procedures Period then the Supplier shall pay to the Customer as liquidated damages for each day of delay the amount specified in the Order or if none is specified then a sum equal to one percent of the value of the Equipment ordered up to the end of the Liquidated Damages Period. Such payment shall be in full and final settlement of the Supplier’s financial liability for any loss or damage incurred by the Customer during the Liquidated Damages Period, and if the Acceptance Procedures have not been recorded as successful by the end of the Liquidated Damages Period, the Customer shall be entitled to claim any remedy available to it for loss or damage incurred by it thereafter. The Supplier shall provide the Associated Services identified on the Order in respect of the Equipment as appropriate and in accordance with the Service Level Agreement in Schedule 2, Appendix 4. The Charges in respect of such Services shall be as detailed in Schedule 4 of the Framework Agreement or the current pricing schedule issued by the relevant Member Authority. The Maintenance service shall commence on the day after the Equipment has successfully passed the Acceptance tests. Without prejudice to any other remedies available, if the Supplier fails to provide the Maintenance Services in accordance with the Specification and the Service levels are not met then the Customer shall be entitled to Service Credits calculated in accordance with Schedule 2, Appendix 4. Title to and risk in the purchased Equipment shall vest in the Customer upon acceptance of the said Equipment in accordance with Clause 5.
Appears in 3 contracts
Samples: Supply & Installation Contract, Contract for Supply & Installation of Voltage Optimisation, End User Agreement
Acceptance of the Equipment. 6.1 The Supplier shall permit the Customer Customer/End User or authorised representatives to make any inspections or tests tests, which may reasonably be required required, and the Supplier shall afford all reasonable facilities and assistance free of charge at the Supplier’s premises. No failure to make complaint at the time of such inspection or tests and no approval given during or after such tests of the Equipment or inspections shall constitute a waiver by the Customer Customer/End User of any rights or remedies in respect of the Equipment and, in particular, the Customer Customer/End User retains the right to reject the Equipment Equipment
6.2 Unless formal acceptance testing in accordance with clauses 5.66.6, 5.76.7, 5.86.8, 5.96.9, 5.106.10, 5.11 6.11 and 5.12 6.12 is identified as a requirement on the Order then in respect of Equipment supplied in Lots 1,2,3,4 and 5 the Customer Customer/End User may by written notice to the Supplier reject any of the Equipment which fails to conform to the approved sample or fails to meet the Specification. Such notice shall be given within a reasonable time after delivery to the Customer Customer/End User of the Equipment concerned. If the Customer Customer/End User shall reject any of the Equipment pursuant to this clause the Customer shall be entitled (without prejudice to other rights and remedies) either: :
6.2.1 to have the Equipment concerned as quickly as possible and in any event within 5 Working Days either repaired by the Supplier or (as the Customer Customer/End User shall elect) replaced by the Supplier with Equipment which conform in all respects with the approved sample or with the Specification and due delivery shall not be deemed to have taken place until such repair or replacement has occurred; or or
6.2.3 to treat the Agreement as discharged by the Supplier’s breach and require a refund from the Supplier in respect of the Equipment concerned together with payment of any additional expenditure over and above the price incurred by the Customer Customer/End User in obtaining replacement goods in replacement provided that the Customer Customer/End User uses its reasonable endeavours to mitigate any additional expenditure in obtaining replacement equipment. .
6.3 The issue by the Customer Customer/End User of a receipt note for the Equipment shall not constitute any acknowledgement of the condition, quantity or nature of that Equipment. .
6.4 Unless otherwise required in the Customer’s Customer’s/End User Order, the Supplier shall guarantee the Equipment for the period quoted in the Supplier’s tender submission, after installation12 Months from delivery. If the Customer Customer/End User shall within such guarantee period or within 25 Working Days thereafter give notice in writing to the Supplier of any defect in any of the Equipment as may have arisen during such guarantee period under proper and normal use, the Supplier shall (without prejudice to any other rights and remedies which the Authority may have) as quickly as possible remedy such defects (whether by repair or replacement as the Customer Customer/End User shall elect) without cost to the Customer. /End User.
6.5 Any Equipment rejected or returned by the Customer Customer/End User as described in clause 5.2 6.2 shall be returned to the Supplier at the Supplier’s risk and expense. .
6.6 Where the Order identifies that formal acceptance testing is required and in any event in respect of Equipment supplied in Lots 1,2,3,4 and 5, the Supplier shall, carry out formal acceptance in accordance with clauses 5.66.6, 5.76.7, 5.86.8, 5.96.9, 5.10.6.10, 5.11 6.11 and 5.12 6.12 during the Acceptance Procedures Period, make available the Equipment for the Acceptance Procedures to be performed. .
6.7 The Customer Customer/End User shall accept the Equipment in accordance with the Acceptance Procedures. .
6.8 The Acceptance Procedures shall be recorded as successful and the Supplier notified accordingly where all the relevant Acceptance Criteria are met. .
6.9 The Acceptance Procedures shall be recorded as unsuccessful and the Supplier notified accordingly where any of the relevant Acceptance Criteria are not met. .
6.10 If the Acceptance Procedures, in respect of any Equipment have not been recorded as successful pursuant to Clause 5.3 6.3 by the end of the Acceptance Procedure Period, the Customer Customer/End User shall have the right either: :
6.10.1 to accept such part of the Equipment as the Customer Customer/End User may decide and pay a pro‑rated pro-rata Charge therefore thereof or such other charge, as may be agreed between the parties; or
6.10.2 without prejudice to its other rights and remedies, to extend the Acceptance Procedures Period for a period or periods, specified by the Customer/End User, during which the Supplier shall correct the fault which caused the Acceptance Procedure to be recorded as unsuccessful; or or
6.10.3 to terminate the Order (such termination to be without prejudice to the other rights and remedies of the Customer Customer/End User and the other obligations hereunder of the Customer Customer/End User and the Supplier). .
6.11 In the event that the Customer Customer/End User extends the Acceptance Procedures Period for a period pursuant to Clause 10.2 6.10.2 and the Acceptance Procedures have not been recorded as successful by the end of that period, the Customer Customer/End User shall have the right either: :
6.11.1 to accept such of the Equipment as the Customer Customer/End User may decide and pay a pro‑rated pro-rated Charge therefore thereof or such other charge, as may be agreed between the parties; ;
6.11.2 to extend the Acceptance Procedures Period for a further period in accordance with Clause 5.10.2; 6.10.2;
6.11.3 to terminate the Order (such termination to be without prejudice to the other rights and remedies of Customer the Customer/End User and the other obligations hereunder of the Customer Customer/End User and the Supplier). .
6.12 Without prejudice to any other rights (including the right to recover damages) that may accrue to the benefit of the Customer Customer/End User under the Order or otherwise, in the event that the Customer Customer/End User elects to terminate the Order pursuant to Clause 5.10.3 6.10.3 or Clause 5.11.36.11.3, the Customer Customer/End User shall be entitled to return any or all of the Equipment which has previously been accepted by the Customer Customer/End User for the Order and receive a full refund of any monies paid in connection therewith. .
6.13 Notwithstanding the provisions of this Clause 5 clause 6 in the event the Customer Customer/End User uses the Equipment other than for the purpose of testing it or with the agreement of the supplier, the Customer Customer/End User shall be deemed to have accepted the Equipment. Where liquidated damages apply then without prejudice to Equipment and service provided under LOT 1-5.
6.14 All consumables will be supplied by the Supplier, however any other remedies available to media i.e. paper will be supplied by the Customer: if there is delay in delivery such that the Equipment is not delivered in accordance with the period identified in the Specification or such other period as may be agreed between the Customer and the Supplier then the Supplier shall pay to the Customer as liquidated damages for each day of delay the amount specified in the Order or if none is specified then a sum equal to one percent of the value of the Equipment ordered up to the end of the Liquidated Damages Period. Such payment shall be in full and final settlement of the Supplier’s financial liability for any loss or damage incurred by the Customer during the Liquidated Damages Period, and if the Equipment has not been delivered by the end of the Liquidated Damages Period, the Customer shall be entitled to claim any remedy available to it for loss or damage incurred by it thereafter. if the Acceptance Procedures have not been recorded successful in accordance with clause 5.3 by the end of the Acceptance Procedures Period then the Supplier shall pay to the Customer as liquidated damages for each day of delay the amount specified in the Order or if none is specified then a sum equal to one percent of the value of the Equipment ordered up to the end of the Liquidated Damages Period. Such payment shall be in full and final settlement of the Supplier’s financial liability for any loss or damage incurred by the Customer during the Liquidated Damages Period, and if the Acceptance Procedures have not been recorded as successful by the end of the Liquidated Damages Period, the Customer shall be entitled to claim any remedy available to it for loss or damage incurred by it thereafter. The Supplier shall provide the Associated Services identified on the Order in respect of the Equipment as appropriate and in accordance with the Service Level Agreement in Schedule 2, Appendix 4. The Charges in respect of such Services shall be as detailed in Schedule 4 of the Framework Agreement or the current pricing schedule issued by the relevant Member Authority. The Maintenance service shall commence on the day after the Equipment has successfully passed the Acceptance tests. Without prejudice to any other remedies available, if the Supplier fails to provide the Maintenance Services in accordance with the Specification and the Service levels are not met then the Customer shall be entitled to Service Credits calculated in accordance with Schedule 2, Appendix 4. Title to and risk in the purchased Equipment shall vest in the Customer upon acceptance of the said Equipment in accordance with Clause 5/End User.
Appears in 1 contract
Samples: Conditions of Contract
Acceptance of the Equipment. The Supplier shall permit the Customer or authorised representatives to make any inspections or tests which may reasonably be required and the Supplier shall afford all reasonable facilities and assistance free of charge at the Supplier’s premises. No failure to make complaint at the time of such inspection or tests and no approval given during or after such tests of the Equipment or inspections shall constitute a waiver by the Customer of any rights or remedies in respect of the Equipment and, in particular, the Customer retains the right to reject the Equipment Unless formal acceptance testing in accordance with clauses 5.6, 5.7, 5.8, 5.9, 5.10, 5.11 and 5.12 is identified as a requirement on the Order then in respect of Equipment supplied the Customer may by written notice to the Supplier reject any of the Equipment which fails to conform to the approved sample or fails to meet the Specification. Such notice shall be given within a reasonable time after delivery to the Customer of the Equipment concerned. If the Customer shall reject any of the Equipment pursuant to this clause the Customer shall be entitled (without prejudice to other rights and remedies) either: to have the Equipment concerned as quickly as possible and in any event within 5 Working Days either repaired by the Supplier or (as the Customer shall elect) replaced by the Supplier with Equipment which conform in all respects with the approved sample or with the Specification and due delivery shall not be deemed to have taken place until such repair or replacement has occurred; or to treat the Agreement as discharged by the Supplier’s breach and require a refund from the Supplier in respect of the Equipment concerned together with payment of any additional expenditure over and above the price incurred by the Customer in obtaining replacement goods in replacement provided that the Customer uses its reasonable endeavours to mitigate any additional expenditure in obtaining replacement equipment. The issue by the Customer of a receipt note for the Equipment shall not constitute any acknowledgement of the condition, quantity or nature of that Equipment. Unless otherwise required in the Customer’s Order, the Supplier shall guarantee the Equipment for the period quoted in the Supplier’s tender submission, after installation. If the Customer shall within such guarantee period or within 25 Working Days thereafter give notice in writing to the Supplier of any defect in any of the Equipment as may have arisen during such guarantee period under proper and normal use, the Supplier shall (without prejudice to any other rights and remedies which the Authority may have) as quickly as possible remedy such defects (whether by repair or replacement as the Customer shall elect) without cost to the Customer. Any Equipment rejected or returned by the Customer as described in clause 5.2 shall be returned to the Supplier at the Supplier’s risk and expense. Where the Order identifies that formal acceptance testing is required and in any event in respect of Equipment supplied the Supplier shall, carry out formal acceptance in accordance with clauses 5.6, 5.7, 5.8, 5.9, 5.10., 5.11 and 5.12 during the Acceptance Procedures Period, make available the Equipment for the Acceptance Procedures to be performed. The Customer shall accept the Equipment in accordance with the Acceptance Procedures. The Acceptance Procedures shall be recorded as successful and the Supplier notified accordingly where all the relevant Acceptance Criteria are met. The Acceptance Procedures shall be recorded as unsuccessful and the Supplier notified accordingly where any of the relevant Acceptance Criteria are not met. If the Acceptance Procedures, in respect of any Equipment have not been recorded as successful pursuant to Clause 5.3 by the end of the Acceptance Procedure Period, the Customer shall have the right either: to accept such part of the Equipment as the Customer may decide and pay a pro‑rated Charge therefore or such other charge, as may be agreed between the parties; without prejudice to its other rights and remedies, to extend the Acceptance Procedures Period for a period or periods, specified by the Customer, during which the Supplier shall correct the fault which caused the Acceptance Procedure to be recorded as unsuccessful; or to terminate the Order (such termination to be without prejudice to the other rights and remedies of the Customer and the other obligations hereunder of the Customer and the Supplier). In the event that the Customer extends the Acceptance Procedures Period for a period pursuant to Clause 10.2 and the Acceptance Procedures have not been recorded as successful by the end of that period, the Customer shall have the right either: to accept such of the Equipment as the Customer may decide and pay a pro‑rated Charge therefore or such other charge, as may be agreed between the parties; to extend the Acceptance Procedures Period for a further period in accordance with Clause 5.10.2; to terminate the Order (such termination to be without prejudice to the other rights and remedies of Customer and the other obligations hereunder of the Customer and the Supplier). Without prejudice to any other rights (including the right to recover damages) that may accrue to the benefit of the Customer under the Order or otherwise, in the event that the Customer elects to terminate the Order pursuant to Clause 5.10.3 or Clause 5.11.3, the Customer shall be entitled to return any or all of the Equipment which has previously been accepted by the Customer for the Order and receive a full refund of any monies paid in connection therewith. Notwithstanding the provisions of this Clause 5 in the event the Customer uses the Equipment other than for the purpose of testing it or with the agreement of the supplier, the Customer shall be deemed to have accepted the Equipment. Where liquidated damages apply then without prejudice to any other remedies available to the Customer: if there is delay in delivery such that the Equipment is not delivered in accordance with the period identified in the Specification or such other period as may be agreed between the Customer and the Supplier then the Supplier shall pay to the Customer as liquidated damages for each day of delay the amount specified in the Order or if none is specified then a sum equal to one percent of the value of the Equipment ordered up to the end of the Liquidated Damages Period. Such payment shall be in full and final settlement of the Supplier’s financial liability for any loss or damage incurred by the Customer during the Liquidated Damages Period, and if the Equipment has not been delivered by the end of the Liquidated Damages Period, the Customer shall be entitled to claim any remedy available to it for loss or damage incurred by it thereafter. if the Acceptance Procedures have not been recorded successful in accordance with clause 5.3 by the end of the Acceptance Procedures Period then the Supplier shall pay to the Customer as liquidated damages for each day of delay the amount specified in the Order or if none is specified then a sum equal to one percent of the value of the Equipment ordered up to the end of the Liquidated Damages Period. Such payment shall be in full and final settlement of the Supplier’s financial liability for any loss or damage incurred by the Customer during the Liquidated Damages Period, and if the Acceptance Procedures have not been recorded as successful by the end of the Liquidated Damages Period, the Customer shall be entitled to claim any remedy available to it for loss or damage incurred by it thereafter. The Supplier shall provide the Associated Services identified on the Order in respect of the Equipment as appropriate and in accordance with the Service Level Agreement in Schedule 2, Appendix 4. The Charges in respect of such Services shall be as detailed in Schedule 4 of the Framework Agreement or the current pricing schedule issued by the relevant Member Authority. The Maintenance service shall commence on the day after the Equipment has successfully passed the Acceptance tests. Without prejudice to any other remedies available, if the Supplier fails to provide the Maintenance Services in accordance with the Specification and the Service levels are not met then the Customer shall be entitled to Service Credits calculated in accordance with Schedule 2, Appendix 4. Title to and risk in the purchased Equipment shall vest in the Customer upon acceptance of the said Equipment in accordance with Clause 5.
Appears in 1 contract
Samples: Supply & Installation Contract
Acceptance of the Equipment. The Supplier shall permit the Customer or authorised representatives to make any inspections or tests which may reasonably be required and the Supplier shall afford all reasonable facilities and assistance free of charge at the Supplier’s premises. No failure to make complaint at the time of such inspection or tests and no approval given during or after such tests of the Equipment or inspections shall constitute a waiver by the Customer of any rights or remedies in respect of the Equipment and, in particular, the Customer retains the right to reject the Equipment Unless formal acceptance testing in accordance with clauses 5.6, 5.7, 5.8, 5.9, 5.10, 5.11 and 5.12 is identified as a requirement on the Order then in respect of Equipment supplied the Customer may by written notice to the Supplier reject any of the Equipment which fails to conform to the approved sample or fails to meet the Specification. Such notice shall be given within a reasonable time after delivery to the Customer of the Equipment concerned. If the Customer shall reject any of the Equipment pursuant to this clause the Customer shall be entitled (without prejudice to other rights and remedies) either: to have the Equipment concerned as quickly as possible and in any event within 5 Working Days either repaired by the Supplier or (as the Customer shall elect) replaced by the Supplier with Equipment which conform in all respects with the approved sample or with the Specification and due delivery Software shall not be unreasonably withheld and shall be deemed to have taken place until such repair or replacement has occurred; or on the earliest to treat the Agreement as discharged by the Supplier’s breach and require a refund from the Supplier in respect occur of: (a) thirty (30) days, plus an additional four (4) days for shipment of the Equipment concerned together with payment or Software to Customer, have elapsed since the date of any additional expenditure over and above the price incurred by the Customer in obtaining replacement goods in replacement provided that the Customer uses its reasonable endeavours to mitigate any additional expenditure in obtaining replacement equipment. The issue by the Customer of a receipt note for the Equipment shall not constitute any acknowledgement of the condition, quantity or nature of that Equipment. Unless otherwise required in the Customer’s Order, the Supplier shall guarantee the Equipment for the period quoted in the Supplier’s tender submission, after installation. If the Customer shall within such guarantee period or within 25 Working Days thereafter give notice in writing to the Supplier of any defect in any delivery of the Equipment as may and Software pursuant to Article 3, without Customer having given to GEI a written notice of a defect, or (b) Customer notifies GEI in writing that Customer accepts the Software, or (c) immediately upon Customer's commercial use of the Software and Equipment in a fashion whereby Customer is or would be entitled to receive any revenue from such use. If Customer rejects the Software during the thirty (30) day period after delivery of the Equipment and Software, it shall provide written notice to GEI of the Defect in sufficient detail to permit GEI to replicate the Defect, whereupon GEI shall have arisen during such guarantee period under proper thirty (30) days within which to remedy the Defect and normal use, resubmit the Supplier shall (without prejudice to any other rights Equipment and remedies which the Authority may have) as quickly as possible remedy such defects (whether by repair or replacement as the Software. Customer shall electhave a fifteen (15) without cost day period commencing on the date of such resubmission within which to accept or reject the Customer. Any Equipment rejected or returned by the Customer as described in clause 5.2 shall be returned to the Supplier at the Supplier’s risk and expense. Where the Order identifies that formal acceptance testing is required and in any event in respect of Equipment supplied the Supplier shall, carry out formal acceptance in accordance with clauses 5.6, 5.7, 5.8, 5.9, 5.10., 5.11 and 5.12 during the Acceptance Procedures Period, make available the Equipment for the Acceptance Procedures to be performed. The Customer shall accept the Equipment Software in accordance with the Acceptance Proceduresprocedures set forth above. The Acceptance Procedures If GEI cannot resubmit the equipment or software within a reasonable time, or if GEI cannot remedy the Defect after repeated efforts over a period of at least sixty (60) days after the Equipment or Software is resubmitted to Customer, then either party may terminate that purchase order and the Equipment and Software shall be recorded as successful and the Supplier notified accordingly where all the relevant Acceptance Criteria are met. The Acceptance Procedures shall be recorded as unsuccessful and the Supplier notified accordingly where any of the relevant Acceptance Criteria are not met. If the Acceptance Proceduresreturned; provided, in respect of any Equipment have not been recorded as successful pursuant to Clause 5.3 by the end of the Acceptance Procedure Periodhowever, the Customer shall have the right either: to accept such part of the Equipment as the Customer may decide and pay a pro‑rated Charge therefore or such other charge, as may be agreed between the parties; without prejudice to its other rights and remedies, to extend the Acceptance Procedures Period for a period or periods, specified by the Customer, during which the Supplier shall correct the fault which caused the Acceptance Procedure to be recorded as unsuccessful; or to terminate the Order (such termination to be without prejudice to the other rights and remedies of the Customer and the other obligations hereunder of the Customer and the Supplier). In the event that the Customer extends the Acceptance Procedures Period for a period pursuant to Clause 10.2 and the Acceptance Procedures have not been recorded as successful by the end of that period, the Customer shall have the right either: to accept such of the Equipment as the Customer may decide and pay a pro‑rated Charge therefore or such other charge, as may be agreed between the parties; to extend the Acceptance Procedures Period for a further period in accordance with Clause 5.10.2; to terminate the Order (such termination to be without prejudice to the other rights and remedies of Customer and the other obligations hereunder of the Customer and the Supplier). Without prejudice to any other rights (including the right to recover damages) that may accrue to the benefit of the Customer under the Order or otherwise, in the event that the Customer elects to terminate the Order pursuant to Clause 5.10.3 or Clause 5.11.3, the Customer shall be entitled to return any or all of the Equipment which has previously been accepted by the Customer for the Order and receive a full refund of any monies paid in connection therewith. Notwithstanding the provisions of this Clause 5 in the event the Customer uses the Equipment other than for the purpose of testing it or with the agreement of the supplier, the Customer shall be deemed to have accepted the Equipmentpurchased such Equipment and Software for purposes of calculating Customer's volume commitment in Section 5.1. Where liquidated damages apply then without prejudice to any other remedies available to the Customer: if there is delay in delivery such that GEI shall, within sixty (60) days upon return of the Equipment is not delivered or Software, (1) credit Customer's account, in the amount of any purchase price actually paid, previously to GEI by Customer, if Customer has any amounts owed to GEI; and, (2) if no outstanding amounts are owed, then reimburse Customer for any purchase price paid with respect to such Equipment or Software rejected by Customer in accordance with the period identified in the Specification or such other period as may be agreed between the Customer and the Supplier then the Supplier shall pay to the Customer as liquidated damages for each day terms of delay the amount specified in the Order or if none is specified then a sum equal to one percent of the value this Section 3.3. Upon return of the Equipment ordered up to the end or Software and payment of the Liquidated Damages Periodany related reimbursement, neither party shall bear any further liability or obligation for such Equipment or Software. Such payment shall be in full and final settlement of the Supplier’s financial liability for any loss or damage incurred by the Customer during the Liquidated Damages Period, and if the Equipment has not been delivered by the end of the Liquidated Damages Period, the Customer shall be entitled to claim any remedy available to it for loss or damage incurred by it thereafter. if the Acceptance Procedures have not been recorded successful in accordance with clause 5.3 by the end of the Acceptance Procedures Period then the Supplier shall pay to the Customer as liquidated damages for each day of delay the amount specified in the Order or if none is specified then a sum equal to one percent of the value of the Equipment ordered up to the end of the Liquidated Damages Period. Such payment shall be in full and final settlement of the Supplier’s financial liability for any loss or damage incurred by the Customer during the Liquidated Damages Period, and if the Acceptance Procedures have not been recorded as successful by the end of the Liquidated Damages Period, the Customer shall be entitled to claim any remedy available to it for loss or damage incurred by it thereafter. The Supplier shall provide the Associated Services identified on the Order in respect of the Equipment as appropriate and in accordance with the Service Level Agreement in Schedule 2, Appendix 4. The Charges in respect of such Services shall be as detailed in Schedule 4 of the Framework Agreement or the current pricing schedule issued by the relevant Member Authority. The Maintenance service shall commence on the day after the Equipment has successfully passed the Acceptance tests. Without prejudice to any other remedies available, if the Supplier fails to provide the Maintenance Services in accordance with the Specification and the Service levels are not met then the Customer shall be entitled to Service Credits calculated in accordance with Schedule 2, Appendix 4. Title to and risk in the purchased Equipment shall vest in the Customer upon acceptance of the said Equipment in accordance with Clause 5.****** ASTERISK REPRESENTS CONFIDENTIAL INFORMATION THAT HAS BEEN REDACTED
Appears in 1 contract
