Pavegen Manufacturer's Warranty

TERMS AND CONDITIONS

1. GENERAL

1.1 This Equipment Warranty is governed by the terms and conditions of the Master Agreement entered into by Pavegen Systems Limited and the Customer and incorporates the General Terms and Conditions located at URL (the “General Terms”). All capitalized terms used herein without definition shall have the same meaning set forth in the General Terms. Unless specifically stated in the Master Agreement Order Form (the “Order Form”) in the event of a conflict between this Equipment Warranty, the Master Agreement or the General Terms, the foregoing documents shall be interpreted in the following order of priority: (i) the Master Agreement; (ii) the General Terms; (ii) this Equipment Warranty.

 

1.2 This Equipment Warranty shall commence on the Warranty Start Date set forth in the Order Form and shall continue through the Warranty Term set forth in the Order Form unless terminated earlier (i) upon the termination of the Master Agreement; (ii) in accordance with clause 8 of this Equipment Warranty; or (iii) as otherwise agreed between the Parties.

 

2. MAINTENANCE AND WARRANTY SERVICES

 

2.1 Subject to the terms and conditions set forth in this Equipment Warranty and the Master Agreement (including the General Terms) and the payment of the Warranty Maintenance Fees set forth in the Order, from the Warranty Start Date set forth in the Warranty Order Form and for the remainder of the Warranty Term, Pavegen shall provide Customer with the Warranty Services for the equipment described in such Warranty Order Form (the “Maintained Equipment”).

 

2.2 On the Customer informing Pavegen that the Maintained Equipment is malfunctioning or has failed or is otherwise not in Good Working Order, Pavegen shall (a) acting reasonably ascertain if the issue has been caused by an Excluded Cause; and (b) provided the issue was not caused by an Excluded Cause, use reasonable endeavours to perform the Warranty Services.

 

2.3 Pavegen is not obliged to perform any Maintenance Services required to restore any malfunctioning or failed Maintained Equipment to Good Working Order where the malfunction or failure results from or is caused by any of the Excluded Causes (“Excluded Maintenance”).

 

2.4 Pavegen may agree in its absolute discretion to perform Excluded Maintenance, and in doing so will use reasonable endeavours but gives no warranty to restore the Maintained Equipment to Good Working Order by (a) making adjustments to the Maintained Equipment; and (b) replacing parts or components of the Maintained Equipment. Should Pavegen agree to perform Excluded Maintenance response and fix times will be at Pavegen’s absolute discretion.

 

2.5 Where Pavegen is performing or has performed the Warranty Services in circumstances where it is established that the Maintained Equipment was not in Good Working Order due to any of the Excluded Causes, Pavegen may charge, and the Customer shall pay, the fees and costs incurred in respect of that work.

 

2.6 Where, in Pavegen's opinion, it cannot reasonably perform Corrective Maintenance remotely, use reasonable endeavours to attend at the Location at the Customer’s cost.

 

3. REPLACEMENTS AND SPARE PARTS

 

3.1 At the beginning of the Term, Pavegen will provide the Customer with a spare kit of parts (the cost of which is to be set forth in the Order Form. The spare kit of parts must be kept by the Customer at the Warranty Location set forth in the Order Form.

 

3.2 All spare parts and/or replacements provided by Pavegen to the Customer shall become part of the Maintained Equipment. All parts and components removed from the Maintained Equipment by Pavegen, the Customer or its Representative in the course of performing the Warranty Services shall no longer constitute part of the Maintained Equipment and will be the property of Pavegen and shall be returned to Pavegen as soon as reasonably possible. The Customer will assign and transfer ownership to Pavegen, with full title guarantee and free from all third-party rights, all parts and components removed from the Maintained Equipment by Pavegen in accordance with this clause 3.2.

 

3.3 In performing the Warranty Services, Pavegen shall use reasonable endeavours to source spare parts required to restore the Maintained Equipment to operate in in Good Working Order but shall not be obligated to source replica parts and will use reasonable commercial discretion to decide the parts required to restore the Maintained Equipment to Good Working Order.

4. CONNECTION TO DATA

 

4.1 The Customer shall make a connection to Technical Data available on the Commencement Date and shall permit Pavegen to make its own direct connection to the Technical Data during the Term.

 

4.2 The Customer will use its best endeavours to ensure the continuity of the Technical Data at all times and shall ensure that it promptly complies with any minimum hardware configuration requirements specified by Pavegen for the purpose of establishing connectivity between the Pavegen System and the Technical Data.

 

4.3 Customer understands that if Customer interrupts continuity and/or availability of the Technical Data Pavegen shall be unable to provide the Warranty Services and therefore, Pavegen shall not be considered in breach of this Equipment Warranty or otherwise liable for a failure to provide the Warranty Services in the event Customer interrupts continuity and/or availability of the Technical Data.

 

4.4 In the event of any loss or damage to Technical Data, the Customer's sole and exclusive remedy against Pavegen shall be for Pavegen to use reasonable commercial endeavours to restore the lost or damaged Technical Data from the latest back-up of such Technical Data maintained by Pavegen. Pavegen shall not be responsible for any loss, destruction, alteration or disclosure of Technical Data caused by any third party.

 

4.5 Each party shall bear its own costs of establishing the connectivity required in this under this clause 4.

5. CUSTOMER’S OBLIGATIONS - The Customer Shall:

 

5.1 ensure that the Maintained Equipment is installed and kept at the Location, under suitable conditions, as specified in the Operating Manuals, and permit only trained and competent personnel to use it and follow any operating instructions as Pavegen may give from time to time;

 

5.2 notify Pavegen promptly if the Maintained Equipment is discovered to be operating incorrectly;

 

5.3 at all reasonable times permit full and free access to the Location and to the Maintained Equipment to Pavegen’s Representatives and provide them with adequate and safe working space, and any telecommunications facilities as are reasonably required to enable Pavegen to perform the Warranty Services while at the Location;

 

5.4 provide Pavegen with any information that is reasonably requested in the performance of the Warranty Services;

 

5.5 take any steps reasonably necessary to ensure the safety of Pavegen's Representatives when attending the Location;

 

5.6 at Customer’s cost, at all times make a person (an “Operative”) available to assist with any reasonable repair directed by Pavegen of the Maintained Equipment. Pavegen will provide the Operative with the requisite training and/or instructions.

 

5.7 not allow any person other than Pavegen to maintain, alter, modify or adjust the Maintained Equipment without the prior written approval of Pavegen;

 

5.8 not move the Maintained Equipment from the Location without the prior written approval of Pavegen (such approval not to be unreasonably withheld or delayed);

 

5.9 store any reserve equipment only in conditions approved by Pavegen, and make this equipment available for periodic maintenance, as with all other Maintained Equipment; and

 

5.10 only use supplies or materials supplied or approved by Pavegen (such approval not to be unreasonably withheld or delayed).

6. EXPRESS DISCLAIMER

 

6.1 Except as expressly stated in this Equipment Warranty or in the Order Form, all warranties, representations, conditions and terms, whether express or implied by statute, common law or otherwise (including satisfactory quality, fitness for purpose and suitability) are hereby excluded to the fullest extent permitted by law and the Services and the Specifications set forth in the Order Form are provided to the Customer on an "as is" basis. In particular, Pavegen makes no representations, warranties, conditions or guarantees with respect to the Products or Services covered by or furnished pursuant to the Documentation, including without limitation any implied warranty or condition of: (a) merchantability; (b) fitness for a particular purpose; (c) arising from course of performance, course of dealing, or usage of trade; and (d) non-infringement of third-party rights.

 

6.2 Except as expressly and specifically provided in this Equipment Warranty: the Customer assumes sole responsibility for results obtained from the use of the Warranty Services and the Specification by the Customer, and for conclusions drawn from such use. Pavegen shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Pavegen by the Customer in connection with the Warranty Services, or any actions taken by Pavegen at the Customer's direction.

 

6.3 Pavegen is not responsible for and expressly disclaims all liability for any third party products integrated into the Products or otherwise accessible through the Pavegen products or any services provided by Pavegen

7. LIMITATION OF LIABILITY

 

7.1 This clause 7.1 sets out Pavegen’s entire financial liability (including any liability for the acts or omissions of its Representatives for (a) any breach of this Equipment Warranty however arising; and (b) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Equipment Warranty.

 

7.2 Nothing in this Equipment Warranty shall limit or exclude Pavegen’s liability for (a) death or personal injury resulting from negligence; (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; (c) breach of section 2 of the Consumer Protection Act 1987.

 

7.3 Without prejudice to clause 7.2 , Pavegen shall not be liable to the Customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for (a) loss of profit; (b) loss of goodwill; (c) loss of business; (d) loss of business opportunity; (e) loss of anticipated saving; (f) loss or corruption of data or information; or (f) special, indirect or consequential damage suffered by the other party that arises under or in connection with this Equipment Warranty.

 

7.4 Without prejudice to clause 7.2 or 7.3 Pavegen’s total liability arising under or in connection with this Equipment Warranty, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the amount paid or payable by Customer in connection with this Equipment Warranty for the twelve months prior to the date which the claim arose.

 

8. TERMINATION

8.1 In addition to any other remedies it may have, either Party may terminate this Equipment Warranty immediately upon giving written notice to the other Party, if the other Party (i) is in material breach of this Agreement which breach is irremediable or (if such breach is remediable) the other Party fails to remedy the breach within thirty (30) days of being notified in writing to do so, or (ii) is unable to pay its debts or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.

 

8.2 On termination of this Equipment Warranty for any reason the Customer shall immediately pay any outstanding amounts owed to Pavegen pursuant to this Equipment Warranty.