Terms of Sale

Force Majeure Event: has the meaning set out in clause 17.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 Buyer’s order for the supply of Goods and/or Services, as set out the Buyer’s purchase order form OR the Buyer’s written acceptance of the Supplier’s quotation OR in the Buyer’s purchase order form, or the Buyer’s written acceptance of the Supplier’s quotation as the case may be.

Services: the services supplied by the Supplier to the Buyer as set out in the quote and/or order.

Specification: the description or specification of the services provided in writing by the supplier to the buyer

Supplier Materials: has the meaning set out in clause 13.1.6.

2.2 All orders for Goods and/or Services shall be deemed to be an offer by the Buyer to purchase Goods and/or Services from the Supplier pursuant to these Conditions.

2.3 Acceptance of delivery of the Goods or commencement of the Services shall be deemed to be conclusive evidence of the Buyer’s acceptance of these Conditions.

2.4 These Conditions may not be varied except by the written agreement of [a director of] the Supplier.

2.5 All pricing submitted will be valid for 30 days only from the date shown, unless expressly withdrawn by the Supplier at an earlier time

2.6 These Conditions represent the whole of the agreement between the Supplier and the Buyer. They supersede any other conditions previously issued.

3.2 If the cost of the Goods to us increases due to any factor beyond our control including, but not limited to, material costs, labour costs, alteration of exchange rates or duties, or changes to delivery rates, we can increase the Price prior to delivery.

3.3 Any increase in price under clause 3.2 will only take place after we have informed you in writing/email.

4.2 Interest on overdue invoices shall accrue from the date when payment becomes due calculated on a daily basis until the date of payment at the rate of 5% per annum above the Bank of England base rate from time to time in force. Such interest shall accrue after as well as before any judgment.

4.3 The Buyer must pay all amounts due under these Terms and Conditions in full without any deduction or withholding except
as required by law. The buyer is not entitled to assert any credit, set-off or counterclaim to justify withholding payment of any such amount in whole or in part.

4.4 The Buyer agrees to pay the amount stated on the Supplier’s quotation in advance prior to delivery of the Goods and the Supplier will be under no obligation to ensure the Goods are delivered until the Supplier holds cleared funds from the Buyer.

4.5 Credit facilities are available to customers upon application and acceptance by the Supplier.

4.6 All payments must be made in British Pounds unless otherwise agreed, in writing, by the Supplier.

5.2 The Supplier reserves the right to amend or change the specification of the Goods if required by any applicable statutory or regulatory requirements.

5.3 If the Buyer requires any further Goods which has not been stated in the Supplier’s quotation then the Supplier shall be entitled to charge for the provision of any such Goods.

6.1.1 conform with their description;

6.1.2 be of satisfactory quality with the meaning of the Sale of Goods Act 1979;

6.1.3 be fit for any purpose held out by the Supplier; and

6.1.4 be carried out in accordance with the Supply of Goods and Services Act 1982.

7.2 The Supplier undertakes to use its reasonable endeavours to despatch the Goods on an agreed delivery date but does not guarantee to do so. Time of delivery shall not be of the essence of the contract nor shall the Supplier be under any liability for any delay beyond the suppliers control.

7.3 No liability for non-delivery, late delivery, loss of or damage to the Goods occurring prior to delivery or for any claims that the goods are not in accordance with the Contract will attach to the Supplier unless claims are notified in writing by the Buyer to the Supplier within twenty-four hours of delivery for loss, damage or non-compliance with the Contract. Notification in writing is acceptable by the Supplier by facsimile/email and the Goods must be returned within three working days from the date of delivery of the Goods to the Supplier. If short delivery does take place, the Buyer may not reject he Goods but shall accept the Goods delivered as part performance of the contract.

7.4 If the Buyer shall fail to give notice in accordance with 7.3 above, the Goods shall be deemed to be in all respects in accordance with the Contract and without prejudice to earlier acceptance by the Buyer it shall be bound to accept and pay for the same accordingly.

7.5 If the Buyer fails to take delivery of the Goods on the agreed delivery date or, if no specific delivery date has been agreed, when the Goods are ready for despatch, the Supplier shall be entitled to store and insure the Goods and to charge the Buyer the reasonable costs of so doing.

7.6 If you do not take delivery of the Goods we may, at our discretion and without prejudice to any other rights:a. store or arrange for the storage of the Goods and will charge you for all associated costs and expenses including, but not limited to, transportation, storage and insurance; and / or

b. make arrangements for the redelivery of the Goods and will charge you for the costs of such redelivery; and/or

c. after 10 business days, resell or otherwise dispose of part or all of the Goods and charge you for any shortfall below the price of the Goods.

7.7 The buyer bears the risk and cost of returning the goods.

8.2 These terms and conditions of business apply to all transactions between the Supplier and the Buyer and are deemedto be accepted by the Buyer by virtue of the Buyers letter or email of confirmation that the Supplier is to provide the Goods in accordance with the Supplier’s specification.

8.3 The Buyer shall carry out a thorough inspection of the Goods within four days and give notice in writing to the Supplier after discovering that some or all of the goods do not comply with the Warranty above, the Buyer must return the Goods to the Supplier at the Buyer’s cost and the Supplier shall, at its absolute discretion, repair or replace any Goods that are defective, or refund the price of such defective Goods.

8.4 No variation of these terms of business are valid unless agreed by the Supplier in writing.

8.5 In the event of any conflict between these terms of business and any other terms of business then the provisions of these terms of business shall apply unless expressly agreed to the contrary by the Supplier in writing.

8.6 The Supplier reserves the right not to accept any order until such time that the Supplier holds cleared funds on account
from the Buyer in respect of payment for the Goods.8.7 Where the Buyer has accepted, or has been deemed to have accepted, the Goods the Buyer shall not be entitled to reject
Goods which are not in accordance with the contract.

8.8 For software purchases there will be no return policy unless clearly advised in writing prior to delivery.

9.2 Until title passes the Buyer shall hold the Goods as bailee for the Supplier and shall store or mark them so that they can at all times be identified as the property of the Supplier.

9.3 The Supplier may at any time before title passes and without any liability to the Buyer:

9.3.1 repossess and dismantle and use or sell all or any of the Goods and by doing so terminate the Buyer’s right to use, sell or otherwise deal in them; and
9.3.2 for that purpose (or determining what if any Goods are held by the Buyer and inspecting them) enter any premises of or occupied by the Buyer.

9.4 The Supplier may maintain an action for the price of any Goods notwithstanding that title in them has not passed to the Buyer.

11.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Quote and/or Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

11.3 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 the Supplier shall notify the Buyer in any such event.

12.2 The Software, including, without limitation, its object code and source code, whether or not provided to you, is strictly confidential to the supplier’s vendor. The supplier’s vendor owns exclusively and reserves all – and you may not exercise any – right, title, and interest in and to the Software, including, without limitation, all intellectual property rights in and to the Software, except to the extent of the limited Software use license granted to you.

12.3 This Agreement is not an agreement of sale, and no title, intellectual property rights, or ownership rights to the Software are transferred to you pursuant to this Agreement. You acknowledge and agree that the Software and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Software, all future Updates and Upgrades, and all other improvements, revisions, corrections, bug-fixes, hot- fixes, patches, modifications, enhancements, releases, DATs, signature sets, upgrades, and policy and database updates and other updates in, of, or to the Software, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of the supplier’s vendor.

12.4 The license is effective for a limited period of time (“Term”) in the event that such Term is set forth in the quote/order document, otherwise the licenses shall be perpetual.

12.5 If the Software has been identified by the Supplier as “Evaluation” Software, then the provisions of this section apply and shall supersede any other conflicting term of this Agreement. Your royalty-free, non-transferable, limited license to use the Evaluation Software, for evaluation purposes only, is limited to thirty (30) days unless otherwise agreed to in writing by the Supplier. The Evaluation Software may contain errors or other problems that could cause system or other failures and data loss. Consequently, Evaluation Software is provided to you “AS IS” and the Supplier disclaims any warranty or liability obligations to you of any kind.

13.2.1 the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations to the extent the Buyer Default prevents or delays the Supplier’s performance of any of its obligations;
13.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 12.2; and
13.2.3 The Buyer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Buyer Default.

14.2 The Buyer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Buyer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Buyer.

14.3 All Supplier Materials are the exclusive property of the Supplier.

15.2 Subject to clause 15.
1:15.2.1 The Supplier shall under no circumstances whatever be liable to the Buyer, 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; and15.2.2 the Supplier’s total liability to the Buyer 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 the buyers purchase price.

15.3 After the Warranty Period, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

15.4 The supplier will not be liable (whether caused by our employees, agents or otherwise) in connection with the Goods, for:

a. any indirect, special or consequential loss, damage, costs, or expenses; and/or

b. any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third party claims; and/or

c. any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; and/or

d. any losses caused directly or indirectly by any failure or breach by you in relation to your obligations; and/or

e. any loss relating to the choice of the Goods and how they will meet your purpose or the use by you of the Goods supplied.

15.5 This clause 15 shall survive termination of the Contract.

16.2 Without limiting its other rights or remedies, the supplier may terminate the Contract with immediate effect by giving written notice to the buyer if:

16.2.1 The buyer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within seven days after receipt of notice in writing to do so;

16.2.2 the buyer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or [(being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of theInsolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

16.2.3 The buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party];

16.2.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the buyer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the buyer with one or more other companies or the solvent reconstruction of the buyer;16.2.5 The buyer (being an individual) is the subject of a bankruptcy petition or order;

16.2.6 a creditor or encumbrancer of the buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within [14] days;

16.2.7 An application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the buyer (being a company);
16.2.8 The holder of a qualifying charge over the assets of the buyer (being a company) has become entitled to appoint or has appointed an administrative receiver;

16.2.9 A person becomes entitled to appoint a receiver over the assets of the buyer or a receiver is appointed over the assets of the buyer;

16.2.10 any event occurs, or proceeding is taken, with respect to the buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.2.2 to clause 16.2.9 (inclusive);
16.2.11 The buyer suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
16.2.12 The buyers financial position deteriorates to such an extent that in the Supplier’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

16.2.13 The buyer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his/her own affairs or becomes a patient under any mental health legislation.

16.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under this Contract on the due date for payment.

16.4 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Buyer and the Supplier if the Buyer fails to pay any amount due under this Contract on the due date for payment, the Buyer becomes subject to any of the events listed in clause 16.2.2 to clause 16.2.13, or the Supplier reasonably believes that the Buyer is about to become subject to any of them.

16.5 On termination of the Contract for any reason:

16.5.1 the Buyer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Buyer immediately on receipt;

16.5.2 The Buyer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Buyer fails to do so, then the Supplier may enter the Buyer’s premises and take possession of them. Until they have been returned, the Buyer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

16.5.3 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

16.5.4 Clauses which expressly or by implication have effect after termination shall continue in full force and effect.

17.2 The Supplier shall not be liable to the Buyer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

17.3 If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than two weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Buyer.

18.2 The parties agree that where such processing of personal data takes place, the Buyer shall be ‘data controller’ and the Seller shall be the ‘data processor’ as defined in the General Data Protection Regulation (GDPR) as may be amended, extended and/or re-enacted from time to time.

18.3 For the avoidance of doubt, ‘Personal Data’, ‘Processing’, ‘Data Controller’, ‘Data Processor’ and ‘Data Subject’ shall have the same meaning as in the GDPR.

18.4 The Seller shall only Process Personal Data to the extent reasonably required to enable it to provide the Goods as mentioned in these terms and conditions or as requested by and agreed with the Buyer, shall not retain any Personal Data longer than necessary for the Processing.

18.5 The Seller shall not disclose Personal Data to any third parties other than employees, directors, agents, subcontractors or advisors on a strict “need-to-know” basis and only under the same (or more extensive) conditions as set out in these terms and conditions or to the extent required by applicable legislation and/or regulations.

18.6 The Seller shall implement and maintain technical and organisational security measures as are required to protect Personal Data Processed by the Seller on behalf of the Buyer. Further information about the Seller’s approach to data protection are specified in its Data Protection Policy, which can be found on our website. For any enquiries or complaints regarding data privacy, you can contact The Data Protection Team at the following e-mail address: dataprotection@it-b.co.uk.

19.2 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 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.

19.3 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.19.4 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

19.5 This Contract contains the entire agreement and understanding of the parties relating to the subject matter of this Contract and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral.

19.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.

19.7 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 England and Wales.

19.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales 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).