The “Seller” means MBA Information Technology Ltd. The “Supply” means the supply of Products or Services described overleaf. The “Buyer” means the person who offers to buy or buys or has agreed to buy the Products or has requested the supply of Services. The “Price” means the Price of Products or Services and any other charges specified overleaf. The “Contract” means the contract on the terms and conditions set out herein between the Seller and the Buyer for the sale and purchase of the Products or the supply of Services. The “Order” means an offer from the Buyer to buy the Products or Services described overleaf on the terms and condition set out herein. The “Products” means the Products or Services described overleaf. The “Services” means only those services which the Seller may be required to supply under clause 11 and is not to be interpreted as meaning services which the Seller may be required to supply under a separate contract for services.
2. INCORPORATION OF CONDITIONS A) These terms and conditions supersede any other terms and conditions and override and exclude any terms and conditions stipulated or referred to by the Buyer whether in an Order or otherwise. The Seller’s catalogue price list and other advertising matter shall not form any Contract between Buyer and Seller. B) These terms and conditions shall be deemed to be incorporated in all agreements from time to time entered into between the Buyer and the Seller which provide for the supply of any Products or Services by the Seller to the Buyer.
3. SELLER’S RIGHTS The Seller shall be entitled: A) To withdraw or cancel a quotation at any time without liability in respect of such cancellation for any loss to the Buyer including consequential loss howsoever arising. B) To refuse or delay the Supply where the Buyer’s credit or conduct of his account is unsatisfactory in the opinion of the Seller. C) To modify designs and specifications of Products without prior notification and withdraw Products replacing them with item of the equivalent specification.
4. QUOTATIONS AND ORDERS All quotations are an invitation to treat only and without obligation. No contract will come into effect until the Company has accepted an Order from the Buyer by confirmation in writing (including email). The Seller will be under no liability for any Order received until the Order is accepted by the Seller in writing.
5. PRICES A) Notwithstanding any Price specified in the Order acceptance, the Price of the Products shall be that applicable on the date of delivery. The Seller shall endeavour to maintain the Prices quoted, but the Seller reserves the right to increase quoted Prices at any time to take account of increase in costs including (without limitation) costs of labour, materials, carriage or other overheads. B) Prices for the Products do not include unless otherwise specified: i) VAT ii) Insurance iii) The cost of effecting delivery in accordance with Clause 7 hereof; and iv) Any special packaging or alteration or installation to the order required by the Buyer.
6. TERMS OF PAYMENT A) Unless otherwise stated in the relevant invoice, payment of the Price and all other sums due under the Contract must be made within 30 days from the date on which the Products and/or Services which are the subject matter of the Contract are delivered or deemed to be delivered and/or performed or deemed to be performed, as the case may be. B) The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer C) If the Buyer fails to pay the Seller any sum due pursuant to the Contract then without prejudice to any other rights or remedies it may have the Seller shall be entitled to: i) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Bank of England, accruing on a daily basis until payment is made, whether before or after any judgement. The Seller reserves the right to claim interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998; and ii) suspend any further delivery of the Products and performance of the Services with immediate effect until such time as all outstanding sums are paid or terminate the Contract.
7. DELIVERY A) Any times quoted for delivery are estimates only and although the Seller will use reasonable efforts to deliver the Products in accordance with the times specified, failure to comply with such time shall not constitute a breach of this Contract. B) Unless otherwise agreed in writing, the Seller shall be entitled to make partial deliveries by instalments and the terms and conditions herein shall apply to each partial delivery. C) The risk in the Products passes to the Buyer on delivery of the Products to the Buyer by the Seller (or the Seller’s nominated carrier) but where the Buyer nominates a carrier other than the Seller to deliver the Products, the risk shall pass to the Buyer when the Products leave the Seller’s premises. D) Where the Buyer notifies the Seller that that it is unable to take delivery of the Products in accordance with the time stated in the Order acceptance or within seven days of the Seller giving notice that the Products are ready for despatch, the Seller shall endeavour to store the Products and the Buyer shall reimburse the Seller without delay for all reasonable costs and storage charges incurred by the Seller until the time of delivery. E) Where the Products are to be delivered by instalments or against call-off and the Buyer either: i) Fails to accept any delivery when due or, in the case of call-offs, fails to accept outstanding deliveries within one month of the date of the Order acceptance; or ii) Defaults in making any payment when due. then the Seller may cancel any or all subsequent deliveries and the Buyer shall compensate the Seller in full for any loss or expense arising from such cancellation and, notwithstanding the Seller’s duty to mitigate its loss, shall compensate the Seller in full for the loss of the Price in respect of the goods ordered, but not delivered. F) The Buyer shall examine the Products on arrival and notify the Seller by facsimile or by registered post within 3 working days of delivery of any damage or short delivery of the Products specified in the Order. If such notification is not received by the Seller, the delivery shall be deemed accepted by the Buyer.
8. TITLE TO THE PRODUCTS A) Ownership of the Products shall not pass to the Buyer until the Seller has received in full all sums due to it in respect of the Products and the Services and all other sums which are or which become due to the
Seller from the Buyer on any account. B) Until ownership of the Products has passed to the Buyer, the Buyer shall: i) hold the Products on a fiduciary basis as the Seller’s bailee; ii) store the Products (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller's property; iii) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and iv) maintain the Products in satisfactory condition and keep them insured on the Seller's behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller. C) The Buyer's right to possession of the Products shall terminate immediately if the Buyer: i) has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolu tion is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or ii) suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or iii) encumbers or in any way charges any of the Products. D) The Seller shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from the Seller. E) The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them. F) On termination of the Contract, howsoever caused, the Seller's (but not the Buyer's) rights contained in this clause 8 shall remain in effect.
9. CANCELLATION OF CONTRACT A Contract cannot be cancelled except with Seller’s consent and on terms which will indemnify the Seller against all loss.
10. SELLERS LIEN The Seller shall have a general as well as a particular lien on all goods, materials, or any other property of the Buyer which shall be in the possession of the Seller in respect of any unpaid account of the Buyer (whether or note in relation to the Products, materials or other property of the Buyer).
11. WARRANTY A) The Seller will endeavour to ensure that the Buyer receives the benefit of any guarantee or warranty which may have been given to the Seller by a third party manufacturer. B) The Buyer is responsible for instructing itself on the terms of such guarantee or warranty and ensuring that any conditions are fully compiled with. C) In cases where no guarantee or warranty is offered by the manufacturer or supplier, or any act of the Seller has invalidated such guarantee or warranty. If the Buyer shall notify the Seller in writing within 30 days from the date of delivery that the Products supplied by the Seller were defective, or within 7 days in the case of software, the Seller will replace or repair at their discretion the Products proved to be defective. Defective means any defect in physical workmanship of the Product and specifically to the recording media in the case of software. However, such remedy is only available to the Buyer provided that the Product shall be brought back to the Seller’s premises at the Buyer’s expense. D) The Buyer must ensure that the Products are serviced, maintained and used properly and in accordance with the Seller’s recommendations (and any guarantee or warranty) and are not fitted or used with any parts, accessories or ancillary equipment other than those recommended by the Seller or stated by the Seller to be suitable. E) During the warranty period set out in Clause 11 C) above, no attempt must be made by the Buyer or any third party to remedy any defect or to dismantle or otherwise tamper in any way with the Products except in accordance with the specific instructions, directions and/or requests by the Seller.
12. LIMITATION OF LIABILITY & INDEMNITY A) Subject to the provision of Clause 11 A) and C) above and to Section 6 of the Unfair Contract Terms Act 1977 and with the exception of those implied by Section 12 of the Sale of Goods Act 1979 all conditions and warranties whether express or implied by Statute of Common Law and whether oral or written are (unless specifically confirmed by the Seller in writing) excluded and negated. B) With the exception of any liability on the Seller’s part in respect to death or personal injury resulting from the Seller’s negligence, the Seller’s liability shall not in any event exceed the Price of the Products in respect of which a claim is made, nor include any consequential loss or damage howsoever arising provided always that this sub-clause shall not apply to the extent that the Buyer requires to be covered by the insurance and pays the Seller the amount of the insurance premium (to be determined by the Seller) required for such cover. C) In cases where the Seller is asked to recommend Products to meet the Buyer’s requirements, the Seller does not warrant that purchase of the Products will satisfy the Buyer’s requirements. All recommendations of Products by the Seller are therefore estimates only and the Seller can accept no responsibility if any Products supplied, fail to meet the Buyer’s requirements or to achieve any particular level of performance. D) The Buyer is advised that the Seller is not liable for any losses consequent to any loss or non-retrieval of data or programs from computer disk, tape or other storage medium for any reason. E) Making duplicates of software must be strictly in accordance with the rights granted by the individual software manufacturers. The Buyer must satisfy itself that is has the right to duplicate or copy software. The Seller makes no representation thereto. F) The Buyer agrees with the Seller to indemnify the Seller and keep it indemnified against all loss, damage, liability, costs (including professional costs) and expenses arising out of any breach of the Buyer’s obligations under the Contract.
13. END USER The Products sold by the Seller under this contract or any copies or reproductions of any part of such Products made in any matter or form whatsoever are for the sole use of the Buyer and its employees and cannot be sold, hired, leased, or licensed to, or used by, any other person unless the Buyer obtains the prior written consent of the Seller.
14. PERSONNEL The Buyer agrees not to approach or employ the Seller’s personnel to work for them in any capacity for a minimum period of 6 months after such personnel leave the employment of the Seller except with the express written permission of the Seller. In the event that the Buyer engages any of the Seller’s personnel, the Buyer shall pay an introduction fee of 26 weeks, or the equivalent, of the engaged person’s remuneration.
15. FORCE MAJEURE The Seller shall be under no liability for any delay or failure of the Products to perform in the event that the manufacture, supply or delivery of the Products is prevented or delayed by an any act or circumstances beyond the Seller’s reasonable control including, but not limited to Act of God, act of terrorism, legislation, war, fire, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a trade dispute, or owing to procure materials for the performance of the Contract.
16. WAIVER AND SEVERANCE A) Any indulgence granted by the Seller to the Buyer and any failure by the Seller to insist upon strict performance of these terms and conditions shall not be deemed a waiver of any of the Seller’s rights or remedies nor be deemed a waiver of subsequent default by the Buyer. B) If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the remainder of that provision and the other provisions in these terms and conditions will not be affected thereby.
17. ASSIGNMENT The Contract is not assigned by the Buyer without the written consent of the Seller and is between the Seller and the Buyer as principal, but the Seller may without consent assign or sub-contract all or any of its rights and obligations hereunder.
18. TERMINATION If the Buyer becomes insolvent or in the opinion of the Seller is likely to go into bankruptcy, receivership or liquidation or makes default in or commits a breach of the Contract, the Seller may forthwith terminate the Contract without incurring liability to the Buyer and without prejudice to the Seller’s rights which may have accrued up the day of termination.
19. GOVERNING LAW The interpretation and application of the Contract shall be in accordance with English Law and both parties hereby agree to submit to the exclusive jurisdiction of the English Courts.
20. Data Protection. Each Party shall process personal data in accordance with the Data Protection Legislation (which includes applicable data protection legislation including the General Data Protection Regulation (EU 2016/679) (GDPR), the Data Protection Directive (95/46/EC), and any national implementing laws, regulations and secondary legislation) as amended from time to time. Terms used throughout this clause including “data controller”, “data processor”, “data subject”, “personal data” and “processing” are as defined in the Data Protection Legislation. The seller warrants and represents its compliance with the Data Protection Legislation. The seller shall, in relation to any personal data processed in connection with the performance by the seller of its obligations under these Conditions: - (a) process that personal data only on the written instructions of THE BUYER unless the seller is otherwise required by Data Protection Legislation to process personal data. Where the seller is relying on the Data Protection Legislation as the basis for processing personal data, the seller shall promptly notify THE BUYER of this before performing the processing required by the Data Protection Legislation; - (b) ensure that it has in place all appropriate technical and organizational measures as required under Data Protection Legislation, reviewed and approved by THE BUYER(where required by THE BUYER), to protect against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. Those measures will include pseudonymizing and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by Supplier. The seller shall not make any changes to security requirements, location of servers and functionality without prior written consent of THE BUYER; - (c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; - (d) assist THE BUYER, in responding to any request from a data subject or Customer and in ensuring compliance with its or Customer’s obligations under the Data Protection Legislation including but not limited to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; - (e) notify THE BUYER promptly and without undue delay, and at the latest within twenty-four (24) hours, on becoming aware of a personal data breach; - (f) at THE BUYER’s sole discretion, delete or return personal data and copies thereof to THE BUYER on termination of the Conditions ; In any event, no personal data shall be retained by the seller longer than it is necessary for the purposes for which the personal data are processed; - (g) maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by THE BUYER or THE BUYER’s designated auditor or THE BUYER’s Customers or THE BUYER’s Customers designated auditors ; and - (h) at the request of THE BUYER enter in to a data processing agreement with THE BUYER and / or THE BUYER’s Customer on such terms as may be required by THE BUYER or Customer, which the seller acknowledges may include the incorporation of approved model contract clauses. - (i) not transfer any personal data outside of the European Economic Area unless the prior written consent of THE BUYER has been obtained and the following conditions are fulfilled: o (i) the seller has provided appropriate safeguards in relation to the transfer such as (i) the terms of the EU Model Clauses incorporated into this article 25 by reference; or (ii) other binding and appropriate transfer mechanisms that provide an adequate level of protection in compliance with Data Protection Legislation;
o (ii) the data subject has enforceable rights and effective legal remedies; and o (iii) the seller complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred. The seller shall not without the prior written consent of THE BUYER appoint any third party processor of personal data. Any transfer of personal data by The seller to a third party shall be subject to a written agreement incorporating terms which are substantially the same as those set out in this clause. The seller shall ensure the compliance by its processors and third party to obligations at least as protective as the Supplier’s obligations set forth in this article 25. As between THE BUYER and the Supplier, the seller shall remain fully liable for all acts or omissions of any third-party processor appointed by the Supplier. Notwithstanding any other provision of these Conditions, the seller shall indemnify THE BUYER against all claims, liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered
or incurred by THE BUYER and THE BUYER’s Customers arising out of or in connection with the processing of the personal data under these Conditions by The seller or any The seller appointed third party processor. This includes without limitation any third party, claim demand or action, or any breach of statutory duty or non-compliance with any part of these data protection obligations by the Supplier, its employees, servants, agents or sub-suppliers (including, without limitation claims against The seller or its subcontractor, sub-the seller or other third party processor and/or THE BUYER or THE BUYER’s Customers. The provisions set forth in this clause 25 shall survive any expiration or termination of these Conditions and any Purchase Order for an indefinite period of time.
21. Compliance with Anti-Slavery and Human Trafficking Laws and Policies In performing its obligations under the agreement, the seller shall : - (a) comply with all applicable anti-slavery and human trafficking laws, statutes and regulations from time to time in force including but not limited to the Modern Slavery Act 2015; and - (b) have and maintain throughout the term of this agreement its own policies and procedures to ensure its compliance; and - (c) not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015; and - (d) ensure that each of its subcontractors and suppliers shall comply with the Anti- slavery policy and with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the Modern Slavery Act 2015.
22. HEADINGS Headings to clauses in these Terms and Conditions are included for the purpose of ease of reference only and shall not have any effect on the construction and interpretation of the Terms hereof.
23. NOTICES Any notice or document to be given under these Terms and Conditions shall be given by sending the same in a pre-paid letter or cable, telex or facsimile transmission to the address of the relevant party set out in the Contract or to such address as such party may have notified to the other for the purposes hereof. Any notices sent by post shall be deemed (in the absence of evidence of earlier receipt) to have been delivered 2 working days after dispatch and in proving the fact of dispatch it shall be sufficient to show that the envelope containing such notice was properly addressed, stamped and posted. Any notice sent by cable, telex or facsimile transmission shall be deemed to have been delivered on the next working day following its dispatch.
24. SERVICES A) If Services are supplied by the Seller outside the scope of the hours specified on the Order (at the request of the Buyer) or if work done at the request of the Buyer is not within the scope of the Services specified on the Order or if for any reason the work is necessitated by any failure on the part of the Buyer to comply with its obligations hereunder then the Buyer shall pay the Seller at the then applicable hourly rate (to be determined by the Seller) for such services. B) Without prejudice to Clause 22 A), in the addition to the Price, the Seller shall have the right to charge the Buyer at the applicable hourly rate (to be determined by the Seller) and for parts and consumables in the following circumstances: i) The Seller is unreasonably denied access to the site; ii) The Seller is obliged to carry out additional or unnecessary work as a result of incorrect or inadequate information provided by the Buyer, its employees, agents or contractors; iii) The Buyer (or any of its employees, agents or contractors) informs the Seller that there is a fault or defect with equipment or software and requests the Seller to rectify this fault or defect and the Seller establishes that no such fault or defect exists.
MBA IT Ltd is a limited company registered in England and Wales with registered number 5563866