Definitions
Seller MiTAD Limited (a company incorporated in England and Wales with registered number 14244259) of Vantage House Euxton Lane, Euxton, Chorley, Lancashire, England, PR7 6TB.
Buyer The person who buys or agrees to buy the goods and or services from the Seller in accordance with the SoW.
Conditions The terms and conditions of sale as set out in this document and any special terms and conditions agreed in writing by the Seller.
Price The price for the goods and/or services, excluding VAT and any carriage, packaging and insurance costs.
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 SoW or otherwise acknowledged by the Seller.
SoW The statement of work provided by the Seller to the Buyer
2. Conditions
2.1 These Conditions shall form the basis of the contract between the Seller and the Buyer in relation to the sale of goods and/or services, to the exclusion of all other terms and conditions including the Buyer’s standard conditions of purchase or any other conditions which the Buyer may purport to apply under any purchase order or confirmation of order or any other document.
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 Seller 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 Seller.
2.5 These Conditions represent the whole of the agreement between the Seller and the Buyer alongside the SoW. They supersede any other conditions previously issued. To the extent there is any conflict between these Conditions and the SoW, the SoW shall prevail.
3. Price
The Price shall be the price as confirmed by the Seller to the Buyer.
4. Payment and Interest
4.1 Payment of the Price and VAT (if applicable) shall be in accordance with the SoW.
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 8% 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 shall pay all accounts in full and not exercise any rights of set-off or counterclaim against invoices submitted by the Seller.
5. Goods and/or Services
5.1 The goods and/or services, including the Seller’s obligations and deliverables are as described in the SoW.
5.2 The Seller reserves the right to amend or change the specification of the goods and/or services if required by any applicable statutory or regulatory requirements.
7. Delivery of Goods
7.1 Time of delivery of any of the deliverables as set out in the SoW shall not be of the essence of the contract.
7.3 The Seller shall not be liable to the Buyer for any loss or damage whether arising directly or indirectly from the late delivery or short delivery of the goods. If short delivery does take place, the Buyer may not reject the goods but shall accept the goods delivered as part performance of the contract, and a pro-rata adjustment to the Price shall be made.
7.4 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 Seller shall be entitled to store and insure the goods and to charge the Buyer the reasonable costs of so doing.
8. Acceptance
8.1 The Buyer shall be deemed to have accepted the goods 1 day after delivery to the Buyer.
8.2 The Buyer shall carry out a thorough inspection of the goods within 7 days and give notice in writing to the Seller after discovering that some or all of the goods do not comply with the warranty above, the Buyer must return the goods to the Seller at the Buyer’s cost and the Seller shall, at its option, repair or replace any goods that are defective, or refund the price of such defective goods.
8.3 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.
9. Title and risk
9.1 Risk shall pass on delivery of the goods to the Buyer’s address.
9.2 Notwithstanding the earlier passing of risk, title in the goods shall remain with the Seller and shall not pass to the Buyer until the amount due under the invoice for them (including interest and costs) has been paid in full.
9.3 Until title passes the Buyer shall hold the goods as bailee for the Seller and shall store or mark them so that they can at all times be identified as the property of the Seller.
9.4 The Seller may at any time before title passes and without any liability to the Buyer:
9.4.1 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
9.4.2 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.
9.5 The Seller may maintain an action for the price of any goods notwithstanding that title in them has not passed to the Buyer.
10. Carriage of Goods
Carriage will be chargeable on all sales order, unless pre-agreed by a director of the Seller.
11. Supply of Services
The Seller agrees to:
11.1 undertake and provide the services in accordance with any brief and deadline agreed with the Buyer (including the SoW); and
11.2 manage and carry out the services in accordance with the SoW.
The Buyer agrees that:
11.3 the Seller is free to undertake and accept other engagements, except those which lead or might lead to any conflict of interest between the Seller and the Buyer during its appointment; and
11.4 the Seller has the right to supply a substitute of equivalent knowledge and expertise and acknowledges that the Buyer has the right to refuse the replacement if, in the reasonable view of the Buyer, the replacement is not sufficiently qualified to undertake the work.
12. Buyer’s obligations
12.1 The Buyer shall:
12.1.1 ensure that the terms of the Order are complete and accurate;
12.1.2 co-operate with the Seller in all matters relating to the SoW;
12.1.3 provide the Seller, its employees, agents, consultants and subcontractors, with access to the Buyer’s premises as reasonably and necessarily be required by the Seller;
12.1.4 provide the Seller promptly with all such information and materials as the Seller may reasonably require, and ensure that such information is accurate in all material respects;
12.1.5 keep and maintain all materials, equipment, documents and other property of the Seller (“Seller Materials”) as ever may be at the Buyer’s premises in safe custody at its own risk, maintain the Seller Materials in good condition until returned to the Seller, and not dispose of or use the Seller Materials other than in accordance with the Seller’s written instructions or authorisation.
12.2 If the Seller’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation (“Buyer Default”):
12.2.1 the Seller 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 Seller’s performance of any of its obligations; and
12.2.2 the Seller shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Seller’s failure or delay to perform any of its obligations as set out in this clause 12.2.
13. Intellectual Property Rights
13.1 All Intellectual Property Rights in or arising out of or in connection with the services shall be owned by the Seller.
13.2 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 Seller obtaining a written licence from the relevant licensor on such terms as will entitle the Seller to license such rights to the Buyer.
13.3 All Seller Materials are the exclusive property of the Seller.
14. Limitation of Liability: THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
14.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for:
14.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
14.1.2 fraud or fraudulent misrepresentation;
14.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
14.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
14.1.5 defective products under the Consumer Protection Act 1987.
14.2 Subject to clause 14.1:
14.2.1 the Seller 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; and
14.2.2 the Seller’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 Price.
15. Notices/Communications
15.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.
15.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address stated in this Agreement or to such other address (being in Great Britain) as the addressee may from time to time have notified for the purpose of this clause; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
15.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
16. Entire Agreement
16.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.
16.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
17. Force Majeure
17.1 If either party to this Agreement is prevented or delayed in the performance of any of its respective obligations under this Agreement by “force majeure”, then such party shall be excused the performance for so long as such cause of prevention or delay shall continue.
17.2 For the purpose of this Agreement ‘force majeure’ shall be deemed to be any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of such party and inter alia including, but not limited to the following:
17.2.1 strikes, lockouts or other industrial action;
17.2.2 terrorism, civil commotion, riot, invasion, war threat or preparation for war;
17.2.3 fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, bad weather or other natural physical disaster;
17.2.4 impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; and
17.2.5 political interference with the normal operations.
18. Assignment and Other Dealings
18.1 The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent.
18.2 The Buyer shall not, without the prior written consent of the Seller, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement.
19. Severability
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Agreement shall continue in full force and effect as if this Agreement had been executed with the illegal or unenforceable provision eliminated.
20. 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.
21. Variation
21.1 No variation of this Agreement shall be effective unless it is in writing and signed by both parties (or their authorised representatives).
21.2 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
22. Law and Jurisdiction
22.1 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.
22.2 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 Agreement or its subject matter or formation (including non-contractual disputes or claims).