Upon execution by both the Buyer and the Seller of the Agreement the Agreement shall come into force and this document together with all specifications and attachments referred to herein including but not limited to the invoice shall constitute a binding legal contract between the Buyer and the Seller upon the terms set out herein.
1.1 – In these terms and conditions: “Agreement” means these terms and conditions and any and all specifications and/or schedules attached. “Buyer” means the person firm or company as specified in the invoice who wishes to purchase the Goods as principal from the Seller upon the terms of this Agreement who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller. “Contract” means the contract for the purchase and sale of the Goods where the Buyer is contracting as principal only and not as agent. “Delivery” means the Seller shall deliver the Goods to the Buyer at the Buyer’s place of business or such other place as is agreed in Writing between the parties. “Delivery Date” means the date as agreed between the parties to this Agreement on which Delivery of the Goods shall take place. “Goods” means such hardware and/or software components and/or other computer parts as specified in the Quotation and/or the Specification including any installment of the Goods or any parts of them which the Seller is to supply to the Buyer. “On-site IT Services and Support” means such services supplied by the Seller to the Buyer for the purposes of this Agreement for the support and maintenance of the Goods as detailed from time to time in the attached document named “On-site IT Services and Support”. “Order” means the acceptance of the Quotation by the Buyer as indicated to the Seller by faxing confirmation of the Goods detailed in the Quotation and any special requirements detailed in the Specification to the Seller. “Price” means the sum specified as the consideration for the provision of the Goods by the Seller as detailed in the invoice. “Price List” means the Seller’s list of prices for the Goods from time to time which do not form part of a Specification. “Quotation” means an estimate of the Price for the Goods as specified on the quotation sheet and such quotations are based on current costs and shall automatically lapse after seven (7) days from the date of the Quotation. “Repair Services” means such services supplied by the Seller to the Buyer for the purposes of this Agreement for the repair of the Goods as detailed from time to time in the attached document named “Repair Service Agreement”. “Seller” means Microtek Services Limited (CRN: 5094128) whose registered office is situated at 11 Park Place, Leeds, LS1 2RX. “Specification” means a specific order for specific Goods and/or requirements notified to the Seller by the Buyer as additional information to the information contained in the Order comprised from component parts as indicated by the Buyer further detailed in the attached document. “Writing” includes but is not limited to telex cable facsimile transmission electronic mail and comparable means of communication.
1.2 – Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time.
1.3 – The headings in this Agreement are for convenience only and shall not affect their interpretation.
02. Basis of the Sale
2.1 – The Seller shall sell and the Buyer shall purchase the Goods in accordance with this Agreement and/or the Specification and/or the Quotation.
2.2 – Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.3 – Any typographical clerical or other error or omission in any sales literature Quotation Price List acceptance of Offer invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
03. Orders and Specifications
3.1 – The acceptance of the Quotation by the Buyer shall not constitute a binding legal contract between the Seller and the Buyer but will be deemed to be a firm offer placed with the Seller by the Buyer upon the terms of the Quotation.
3.2 – The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable Specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to produce the Goods.
3.3 – The quantity quality and description of and any Specification for the Goods shall be those set out in the Seller’s Quotation (if accepted by the Buyer) or the Buyer’s Order (if accepted by the Seller).
3.4 – If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with the Specification submitted by the Buyer the Buyer shall indemnify the Seller against any and all loss damages costs and expenses whether direct or indirect or consequential awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent copyright design trade mark or other industrial or intellectual property rights of any third party which results from the Seller’s use of the Buyer’s Specification.
3.5 – The Seller reserves the right to make any changes in the Specification of the Goods which are required to conform with any applicable statutory or EC requirements or where the Goods are to be supplied to the Seller’s Specification which do not materially affect their quality or performance.
3.6 – No Order and/or Specification which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller made at least twelve (12) hours before dispatch of the Goods and on terms that the Buyer shall indemnify the Seller in full against any and all loss whether direct indirect or consequential (including but not limited to loss of profit) costs (including but not limited to the cost of all labour and materials used) damages charges and expenses incurred by the Seller as a result of cancellation.
3.7 – The Buyer shall notify the Seller of any of requirements for On-site IT Services and/or Repair Services as detailed further in the attached documents and such requirements shall form part of the terms of this Agreement.
3.8 – The Seller reserves the right to alter the terms of the On-site IT Services and/or Repair Services from time to time in its discretion. The Seller shall notify the Buyer in writing of any such alterations to the On-site IT Services and/or Repair Services within fourteen (14) days prior to the implementation of any amendments to these services.
04. Intellectual Property
4.1 – The Buyer acknowledges that all copyright and other intellectual property rights in any software program sold by the Seller remain the property of the licensors or suppliers of the software program and that neither the Buyer nor any third party to whom the Buyer supplies or transfers the software program has any rights therein except as expressly licensed by the licensor or supplier of that software program.
4.2 – The Buyer agrees to ensure that all software programs supplied by the Seller are used by any third party to whom the Buyer transfers the software program only as expressly licensed by the licensor or supplier of the software program.
4.3 – The Buyer’s right to use the Goods to which a license is applicable is revoked if an administrative receiver is appointed to the Buyer.
05. Price of the Goods
5.1 – The Price of the Goods shall be the Seller’s Quotation or where no Price has been quoted (or the Quotation is no longer valid) the Price listed in the Seller’s published Price List current at the date of acceptance of the Order. All Prices are valid for seven (7) days only or until earlier acceptance by the Buyer after which time they may be altered by the Seller without giving notice to the Buyer.
5.2 – The Seller reserves the right by giving notice to the Buyer at any time before Delivery to increase the Price to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as without limitation any foreign exchange fluctuation currency regulation alteration of duties significant increase in the costs of labour materials or other costs of manufacture) any change in Delivery Dates quantities or Specifications for the Goods which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
5.3 – Except as otherwise stated under the terms of any Quotation or in any Price List of the Seller and unless otherwise agreed in Writing between the Buyer and the Seller all prices are given by the Seller on an ex works basis and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises the Buyer shall be liable to pay the Seller’s charges for transport packaging and insurance.
5.4 – The Price is exclusive of any applicable value added tax taxes or any other applicable levies which the Buyer shall be additionally liable to pay to the Seller.
5.5 – The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.
06. Terms of Payment
6.1 – Subject to any special terms agreed in Writing between the Buyer and the Seller the Seller shall be entitled to invoice the Buyer for the Price of the Goods on or at any time after Delivery of the Goods unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take Delivery of the Goods in which event the Seller shall be entitled to invoice the Buyer for the Price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered Delivery of the Goods.
6.2 – The Buyer shall pay the Price of the Goods (less any discount to which the Buyer is entitled but without any other deduction) within thirty (30) days of the date of the Seller’s invoice and the Seller shall be entitled to recover the Price notwithstanding that Delivery may not have taken place and the legal and beneficial title and property in the Goods has not passed to the Buyer. The time of payment of the Price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.3 – The Seller reserves the right to levy an administration charge in respect of the Buyer returning the Goods and rotation of the Goods.
6.4 – Returns of the Goods must be made subject to the following:
- 6.4.1 – Prior authority having been obtained from the Seller which may be given at the Seller’s sole discretion,
- 6.4.2 – Within seven (7) days of the date of the invoice,
- 6.4.3 – The Goods must be properly packed,
- 6.4.4 – The Goods must be in a saleable condition, and
- 6.4.5 – The Goods must be accompanied by a detailed packing list.
6.5 – The Seller in its sole discretion reserves the right to reject any Goods which do not comply with the conditions as set out in clause 6.4 above.
6.6 – If the Seller agrees to accept any Goods returned in a non-saleable condition the Seller reserves the right to charge the cost to the Buyer of rectifying the Goods to a saleable condition.
6.7 – If the Buyer fails to make any payment on the due date then without prejudice to any other rights or remedy available to the Seller the Seller shall be entitled to:
- 6.7.1 – Cancel the Goods and/or Delivery of the Goods or suspend any further deliveries to the Buyer,
- 6.7.2 – Appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer) and,
- 6.7.3 – Charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of four per cent (4%) per annum above the base rate of Yorkshire Bank Plc from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
7.1 – Delivery of the Goods shall be made by the Seller delivering to the Buyer at the Buyer’s place of business or such other place as is agreed in Writing between the parties.
7.2 – Any dates quoted for Delivery of the Goods are approximate only and the Seller shall not be liable for any delay in Delivery of the Goods howsoever caused. Time for Delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted Delivery Date upon giving reasonable notice to the Buyer.
7.3 – Where the Goods are to be delivered in installments each Delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with this Agreement or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7.4 – The Delivery Date may only be rescheduled on twelve (12) hours’ notice to the Seller and at the Seller’s sole discretion. Any reschedule of the Delivery Date shall be subject to a reasonable administration charge by the Seller. The Buyer agrees to indemnify the Seller against all loss costs (including the costs of labour materials used and overheads incurred) damages charges and expenses arising out of the Order and its rescheduling.
7.5 – If the Seller fails to deliver the Goods (or any installment) for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault and the Seller is accordingly liable to the Buyer the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the Price of the Goods.
7.6 – If the Buyer fails to take Delivery of the Goods or fails to give the Seller adequate Delivery instructions at the time stated for Delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then without prejudice to any other right or remedy available to the Seller the Seller may:
- 7.6.1 – Store the Goods until actual Delivery and charge the Buyer for the reasonable costs (including insurance) of storage or,
- 7.6.2 – Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the Price or charge the Buyer for any shortfall below the Price.
08. Risk and Property
8.1 – Risk of damage to or loss of the Goods shall pass to the Buyer:
- 8.1.1 – In the case of Goods to be delivered at the Seller’s premises at the time when the Seller notifies the Buyer that the Goods are available for collection or,
- 8.1.2 – In the case of Goods to be delivered otherwise than at the Seller’s premises at the time of Delivery or if the Buyer wrongfully fails to take Delivery of the Goods the time when the Seller has tendered Delivery of the Goods.
8.2 – Notwithstanding Delivery and the passing of risk in the Goods or any other provision of these Conditions the legal and beneficial title and property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
8.3 – Until such time as the legal and beneficial title to the Goods passes to the Buyer the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored protected and insured and identified as the Seller’s property but the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business.
8.4 – Until such time as the legal and beneficial title to the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
8.5 – The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8.6 – If in the normal course of business, the Buyer shall sell the Goods the property in which remains (prior to such sale) in the Seller:
- 8.6.1 – The Buyer shall hold on trust for the Seller absolutely all the benefit of and/or rights arising under any such contract for sale,
- 8.6.2 – The Buyer shall hold on trust for the Seller absolutely all proceeds of any such contract of sale and shall pay the same into a separate identified bank account (which shall at no time have paid into it monies other than monies held on trust for the Seller and shall at no time be overdrawn) as trustee for the Seller.
- 8.6.3 – If as a result of or the exercise of the rights under clause 8.6.1 and/or 8.6.2 above the Seller receives any monies the same will not in whole or in part discharge:
- 126.96.36.199 – Any of the Buyer’s liability to pay the purchase price under this or any other contract between the Seller and the Buyer or,
- 188.8.131.52 – Any other debts owed by the Buyer to the Seller.
09. Warranties and Liability
9.1 – Subject to clause 9.2 below the Seller warrants that the Goods will reasonably correspond with the Order and/or Specification at the time of Delivery and will (unless otherwise stated on the Seller’s Quotation or otherwise agreed in writing) be free from defects in material and workmanship for a period of twelve (12) months from the date of their initial use or twelve (12) months from Delivery whichever is the first to expire
9.2 – The above warranty is given by the Seller subject to the following conditions:
- 9.2.1 – The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing design or Specification supplied by the Buyer
- 9.2.2 – The Seller shall be under no liability in respect of any defect arising from fair wear and tear willful damage negligence abnormal working conditions failure to follow the Seller’s instructions (whether oral or in Writing) misuse or alteration or repair of the Goods without the Seller’s approval
- 9.2.3 – The Seller shall be under no liability under the above warranty (or any other warranty condition or guarantee) if the total Price for the Goods has not been paid by the due date for payment
- 9.2.4 – The above warranty does not extend to parts materials or equipment not manufactured by the Seller in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller
- 9.2.5 – If there is any ambiguity or conflict arising between the terms herein and the Seller’s Quotation in relation to the warranty terms set out in 9.1 above the Seller’s Quotation will prevail
9.3 – Subject as expressly provided in these Conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law
9.4 – If under this Agreement the Goods are to be exported out of England and/or Wales by the Seller to the Buyer on the Buyer’s instructions clause above shall not apply to the extent permitted by law. The Goods are sold with the manufacturer’s warranty (if any is provided) only
9.5 – Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with the Order and/or the Specification shall (whether or not Delivery is refused by the Buyer) be notified to the Seller within seven (7) days from Delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If Delivery is not refused and the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure and the Buyer shall be bound to pay the Price as if the Goods had been delivered in accordance with this Agreement
9.6 – Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet the Order and/or Specification is notified to the Seller in accordance with this Agreement the Seller shall be entitled to replace the Goods (or the part in question) free of charge or at the Seller’s sole discretion refund to the Buyer the Price (or a proportionate part of the Price) but the Seller shall have no further liability to the Buyer
9.7 – Except in respect of death or personal injury caused by the Seller’s negligence the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent) or any implied warranty condition or other term or any duty at common law or under the express terms of the Contract for any indirect special or consequential loss or damage (whether for loss of profit or otherwise) costs expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer and the entire liability of the Seller under or in connection with the Contract shall not exceed the Price of the Goods except as expressly provided in this Agreement
9.8 – The Seller shall not be liable to the Buyer or be deemed to be in breach of this Agreement by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing the following without being an exhaustive list shall be regarded as causes beyond the Seller’s reasonable control:
- 9.8.1 – Act of God explosion flood tempest fire or accident,
- 9.8.2 – War or threat of war sabotage insurrection civil disturbance or requisition,
- 9.8.3 – Acts restrictions regulations bye-laws prohibitions or measures of any kind on the part of any governmental parliamentary or local authority,
- 9.8.4 – Import or export regulations or embargoes,
- 9.8.5 – Strikes lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party),
- 9.8.6 – Difficulties in obtaining raw materials labour fuel parts or machinery,
- 9.8.7 – Power failure or breakdown in machinery.
10.1 – If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent copyright design trade mark or other industrial or intellectual property rights of any other person then unless the claim arises from the use of any drawing design or Specification supplied by the Buyer the Seller shall indemnify the Buyer against all loss damages costs and expenses awarded against or incurred by the Buyer in connection with the claim or paid or agreed to be paid by the Buyer in settlement of the claim.
10.2 – The Seller will indemnify the Buyer for direct personal injury or death caused solely by the defects in any of the Goods or caused solely by the negligence of its assigned employees acting within the course of their employment and the scope of their authority.
10.3 – The Seller will indemnify the Buyer for the purposes of clause 10.1 above provided that:
- 10.3.1 – The Seller is given full control of any proceedings or negotiations in connection with any such claim,
- 10.3.2 – The Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations,
- 10.3.3 – Except pursuant to a final award the Buyer shall not pay or accept any such claim or compromise any such proceedings without the consent of the Seller (such consent shall not be unreasonably withheld),
- 10.3.4 – The Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavors to do),
- 10.3.5 – The Seller shall be entitled to the benefit of and the Buyer shall accordingly account to the Seller for all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim and,
- 10.3.6 – Without prejudice to any duty of the Buyer at common law the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss damages costs or expenses for which the Seller is liable to indemnify the Buyer under this clause 10.
10.4 – The Buyer shall indemnify and defend the Seller and its employees in respect of any claims by third parties which are occasioned by or arise from any performance or non-performance of the Seller pursuant to the instructions of the Buyer or its authorised representatives.
10.5 – If as a result of any non-payment or any other breach of this Agreement by the Buyer the Seller takes any action or proceedings howsoever to obtain or to enforce its rights hereunder the Buyer shall be obliged to fully indemnify the Seller in respect of costs (which if proceedings are issued shall be paid by the Buyer on the indemnity basis) and/or expenses and/or liabilities suffered or incurred by the Seller
11.1 – Save as set out in clause 9 except in respect of death or personal injury caused by the Seller’s negligence the liability of the Seller for the purposes of clause 10.1 above shall be limited to £50,000 for any one event or series of connected events.
12.1 – The Seller shall be entitled to terminate this Agreement without prejudice to any other remedies with immediate effect by giving written notice to the Buyer upon the happening of any of the following events:
- 12.1.1 – If the Buyer is in breach of any of its obligations under this Agreement and if the breach is capable of remedy it is continued and not remedied for a period of twenty-eight (28) days following written notice by the Seller,
- 12.1.2 – If the Buyer is wound up or ceases to trade or is unable to pay its debts as and when they fall due under section 123 Insolvency Act 1986 or because the Buyer becomes the subject of a bankruptcy petition under the Insolvency Act 1986,
- 12.1.3 – A receiver or administrative receiver is appointed over the whole or any part of the property or assets of the Buyer,
- 12.1.4 – If the Buyer is in persistent and/or material breach of any of its obligations under these terms and conditions.
13.1 – Any notice required by this Agreement to be given by either party to the other shall be in Writing and shall be served by sending the notice by recorded delivery or by telex facsimile or other electronic media to the address of the other as set out in this Agreement or such other address as may be notified in accordance with the provisions of this Agreement. In proving service it is sufficient to prove that the envelope containing the notice was properly addressed and delivered into the custody office of the postal authority as a prepaid first class recorded delivery or that telex facsimile or other electronic media was transmitted.
14. Entire Agreement
14.1 – This Agreement contains the entire agreement and understanding of the parties in connection with the subject matter therein and supersedes all previous agreements and understandings between the parties.
14.2 – In the event of any ambiguity and/or conflict arising between the terms of this Agreement and those in the Seller’s Quotation the terms specified in the Seller’s Quotation shall prevail.
15.1 – No variation of this Agreement shall be valid unless it is in Writing and signed by or on behalf of each of the parties.
16.1 – If any term or provision in this Agreement shall be held to be illegal or unenforceable in whole or in part under any enactment or rule of law such term or provision or part shall to that extent be deemed not to form part of this Agreement but the validity and enforceability of the remainder of the remainder of this Agreement shall not be effected.
17. Third Party Rights
17.1 – Nothing in this Agreement shall be construed as conferring any enforceable rights on a party which is not a party to this Agreement. Accordingly the parties hereto confirm that no term of this Agreement is enforceable under the Contract (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
18.1 – In the event of any dispute between the parties arising out of this Agreement the matter shall unless otherwise agreed in Writing between the parties be referred to a single arbitrator (in default of agreement to be appointed by the President for the time being of the Law Society of England and Wales) in accordance with the Arbitration Act 1996.
19. Governing Law and Jurisdiction
19.1 – This Agreement shall be governed by English law and shall be subject to the jurisdiction of the English Courts.