Mirus IT Solutions Limited
These are the Sales Order Terms of Mirus IT Solutions Limited registered in England and Wales under company number 4569266 whose registered office is at 7 Clarendon Drive, Wymbush, Milton Keynes MK8 8ED (the Seller).
1.1 The definitions and rules of interpretation in this condition shall apply in these Terms.
Buyer: the person, firm or company who buys Equipment from the Seller subject to these Terms.
Equipment: any Equipment agreed to be sold by the Seller to the Buyer.
Intellectual Property Rights (IPR): All copyright, database rights, design rights, trade marks, trade names, utility models, patents, domain names and other intellectual property rights of a similar nature subsisting anywhere in the world or associated with the Equipment.
Order: the Buyer’s order (either written or verbal) to buy the Equipment from the Seller.
Order Acknowledgement: the Seller’s written acceptance of the Buyer’s Order in accordance with clause 3.1.
Terms: these Terms and Conditions for the sale of IT Equipment.
Warranty: the Seller’s guarantee in relation to the Equipment set out in clause 8.
1.2 Headings do not affect the interpretation of these Terms.
2. Application of Terms
2.1 These Terms shall govern and be incorporated into every Contract by the Seller with any Buyer to the exclusion of all other terms and warranties and representing the only terms upon which the Seller trades.
2.2 Acceptance by a Buyer of delivery of Equipment shall constitute unqualified acceptance of these Terms and subsequent sales of Equipment shall be deemed to be subject to these Terms.
2.3 Any waiver or variation of these Terms may only be made in writing signed by a director of the Seller.
3. Basis of the Sale
3.1 Any estimate, quotation or the Seller price lists shall constitute an invitation to treat. Any Order placed by a Buyer shall constitute an offer, which the Seller may accept or decline. The Seller will send Order Acknowledgement which shall constitute legal acceptance of the Buyer’s Order.
3.2 The Seller reserves the right to withdraw or amend a quotation at any time before receipt of an unqualified order from the Buyer and each quotation shall be deemed withdrawn unless accepted within the period for acceptance stated on the quotation, or if no such period is stated, 7 days from the date of the quotation.
3.3 The Seller’s employees or agents are not authorised to make any representation or recommendation concerning the Equipment unless confirmed by the Seller in writing. In entering into the contract the Buyer acknowledges that it does not rely on such representations or recommendations.
3.4 Any error or omission in sales literature, quotation or other document issued by the Seller shall be subject to correction without liability on the part of the Seller.
4. Order and Specifications
4.1 The Buyer shall be responsible for ensuring the accuracy of its Order and for giving all relevant information concerning the Equipment to the Seller.
4.2 Equipment supplied shall be to the standard published specification and entirely as described in the Seller’s quotation subject only to such amendments by the Buyer as are accepted in writing by the Seller.
4.3 The Seller reserves the right to make any changes in the specification of Equipment which are required to ensure conformity with any legal requirement and which do not materially affect its quality or performance.
4.4 No Order which has been accepted by the Seller may be cancelled by the Buyer unless the Buyer indemnifies the Seller against all losses incurred as a result of such cancellation. Where an Order is for bespoke Equipment indemnity will involve payment to the Seller of the entire sale price of the Equipment.
4.5 The Seller may deliver the Equipment by separate instalments. The Seller is entitled to invoice for each delivery.
5.1 Save for valid quotations supplied under clause 3, all prices will be those ruling at the date of delivery. Prices are exclusive of delivery and packaging charges.
5.2 All prices are exclusive of value added tax and any other similar taxes and duties which shall be paid by the Buyer in addition (if applicable).
5.3 The Seller reserves the right by giving written notice to the Buyer at any time before delivery to increase the price of the Equipment to reflect any increase in the cost to the Seller or to reflect any change in delivery dates, quantities or specifications for the Equipment requested by the Buyer or by the failure of the Buyer to give the Seller adequate information.
6.1 The Seller is entitled to request payment prior to delivery for any Equipment to be supplied unless the Seller has agreed credit terms with the Buyer. Where credit terms are agreed the Seller may invoice the Buyer upon delivery of all or part of the Equipment comprising in the order.
6.2 The Seller’s payment terms are strictly payment within 30 days of the date of the Seller’s invoice.
6.3 All payments must be made by the Buyer in the currency specified in the Seller’s invoice. All payments must be made by bank transfer to the bank account of the Seller specified in the Seller’s invoice. The Buyer is responsible for bank charges in making payment to the Seller and must ensure payment of the Seller’s invoice in full.
6.4 Time of payment is of the essence. The Seller reserves the right to claim interest from the date any invoice becomes overdue at the current rate prescribed under the Late Payment of Commercial Debts (Interest) Act 1998.
6.5 Non-payment by the due date will entitle the Seller to suspend further deliveries without notice.
6.6 If the Buyer fails to take delivery of Equipment which the Seller has notified the Buyer is ready for despatch, the Seller shall be entitled to invoice the Buyer at any time after the Seller has notified the Buyer that the Equipment is ready for collection or delivery.
7. Delivery and Risk
7.1 Times quoted for delivery are treated as estimates only. The Seller will make all reasonable endeavours to deliver on time but will not be responsible for any loss or damage caused to the Buyer by late delivery.
7.2 Equipment will be delivered to the Buyer at the address agreed with the Seller. The risk in the Equipment shall pass to the Buyer upon such delivery taking place.
7.3 Where items of the Equipment are delivered by instalments, each delivery shall constitute a separate contract. Failure by the Seller to deliver one or more instalments shall not entitle the Buyer to treat the contract for other instalments as repudiated.
7.4 If the Buyer fails to take delivery of the Equipment without good reason then the Seller may store the Equipment until actual delivery and charge the Buyer for the reasonable costs of storage, transport, re-delivery and other incidental costs including insurance.
7.5 The Buyer must inspect the Equipment promptly upon arrival and give written notice to the Seller within 7 days of its arrival of any shortages or defects which were apparent on reasonable inspection.
7.6 If the Buyer fails to give notice as specified in clause 7.5 then, except in respect of any defect which is not one which would be apparent on reasonable inspection, the Equipment shall be conclusively presumed to comply with the Warranty and the Buyer shall be deemed to have accepted the delivery of the Equipment in question and the Seller shall have no liability to the Buyer with respect to that delivery (except in relation to liability for any latent defects).
7.7 Return the Equipment unaltered and unrepaired to the Seller or to the manufacturer direct if required by the manufacturer of that item of the Equipment. If appropriate, the Buyer must make the Equipment available for inspection by the Seller, the manufacturer or representatives of either of them.
8.1 The Seller warrants that the Equipment will correspond with specification and be as described in the Seller’s quotation at the time of delivery (Warranty).
8.2 The Supplier will transfer to the Buyer the benefit of all manufacturers’ warranties applicable to the Equipment.
8.3 The Warranty in 8.1 and 8.2 is subject to the following conditions:
8.3.1 The Seller shall not be liable for any defect arising from failure to follow the Seller’s instructions, misuse of the Equipment or customers attempt to alter or repair the Equipment without the Seller’s written consent;
8.3.2 The Seller shall not be under Warranty liability if the total price for the Equipment has not been paid by the due date for payment.
8.3.3 Otherwise (except where the Equipment is sold to a consumer), all warranties, conditions and other terms implied by statute or law are excluded.
8.4 The Buyer must notify the Seller of any Warranty claim within 3 days of becoming aware of the facts giving rise to a warranty claim. The Seller must be given a reasonable opportunity of examining the relevant Equipment. If the Buyer does not notify the Seller the Buyer shall not be entitled to reject the Equipment.
9.1 Where the Equipment is supplied with pre-installed software (which may be operating system or standard applications software or both) (the Software) the intellectual property rights in the Software are not sold to the Buyer. The Buyer is licensed to use the Software upon the standard terms of the manufacturer supplied on a shrink wrap or click wrap basis and subject to any user limitations that may be specified in such Software or in the documents relating to it.
9.2 Where no licence terms for the Software are specified, the Buyer is granted a non-exclusive non-transferrable licence to use the Software for the Buyer’s operations but subject to the following limitations:
• The Buyer may not reproduce, adapt, vary or modify the Software.
• The Buyer may not copy the Software save for backup and archive purposes.
• The Buyer may not delete or alter any copyright notice which is displayed in the Software.
10. Property and Title
10.1 Until full payment has been received by the Seller for Equipment supplied to the Buyer, the Equipment shall remain the property of the Seller.
10.2 Where property in the Equipment remains that of the Seller, the following terms shall apply:-
10.2.1 The Buyer shall hold the Equipment on a fiduciary basis as the Supplier’s bailee. The Buyer shall store the Equipment carefully and ensure that all items of the Equipment are clearly identified as belonging to the Seller.
10.2.2 The Equipment shall not be mixed with other products or altered in any way.
10.2.3 The Buyer will insure the Equipment for its replacement value naming the Seller as the loss payee. But the Buyer may resell or use the Equipment in the Ordinary course of its business.
10.3 The Buyer grants to the Seller an irrevocable licence for the Seller, its agents and employees to enter any premises of the Buyer to ascertain whether any Equipment are stored there and to inspect, count and recover such Equipment.
11.1 In respect of any valid claim, the Seller shall be entitled to replace the Equipment free of charge or at the Seller’s discretion refund to the Buyer the price of the Equipment but the Seller shall have no further liability to the Buyer.
11.2 Notwithstanding clause 11.1 above the Seller is liable to the Buyer arising out of this Agreement such liability shall be limited to direct loss and damage only and shall not exceed 200% of the price of the Equipment in question.
11.3 The Seller shall not be liable to the Buyer for any indirect special or consequential loss or damage, including loss of profit, loss of use, loss of business or business opportunity or anticipated savings.
11.4 Nothing in these terms shall limit the Seller’s liability for:
• Death or personal injury resulting from the Seller’s negligence; or
• Fraud or fraudulent misrepresentation made by the Seller; or
• Breach of the terms related to title implied by Section 12 of the Sale of Goods Act 1979; or
• Breach of Section 2 of the Consumer Protection Act 1987.
12. Intellectual Property Rights
12.1 The Buyer acknowledges that all copyright and other Intellectual Property Rights in relation to the Equipment and Software are and remain the sole property of the Seller or of the third party owner of such rights. The rights in any developments to the Equipment or the Software will also vest in the Seller or third party owner.
12.2 The Seller or Software owner will indemnify the Buyer against claims that the Software infringes other parties intellectual property rights, except as provided by 12.3 below.
12.3 This indemnity is dependent upon the Buyer having not done or permitted anything which may have been or become an infringement of any other party’s intellectual property rights. The Buyer shall give the Seller prompt notice of any claim arising under clause 12.2 and the Seller shall have the sole right to defend such claims and make settlements of them. The Buyer shall give such assistance as the Seller may reasonably require in this respect.
12.4 In the event of any such infringement being proved the Seller may at its sole option and expense:
• Procure for the Buyer the right to continue to use the Software or infringing part of it.
• Modify or amend the Software so that it becomes non-infringing;
• Replace the Software or infringing part by other software of similar capability; or
• Repay to the Buyer that element of the price which relates to the price of the whole or the infringing part of the Software.
12.5 Where an infringement of third parties rights arises from the Seller complying in good faith with specifications or developments requested by the Buyer, the Buyer shall indemnify the Seller against all third party claims arising.
13. Confidential Information
13.1 Except to the extent set out in this clause or where disclosure is expressly permitted, each party shall treat the other party’s Confidential Information as confidential and not disclose the other party’s Confidential Information.
13.2 Clause 13.1 shall not apply to the extent that:
• The information was in the possession of the Disclosing Party without obligation of confidentiality prior to its disclosure; or
• Such information was already in the public domain at the time of disclosure; or
• Such information was independently developed without access to the other party’s Confidential Information.
13.3 The Supplier may disclose the Customer’s Confidential Information to the Supplier personnel directly involved in the provision of the Services and who need to know the information. The Supplier shall ensure that each of its personnel are aware of and comply with its confidentiality obligation.
14. Force Majeure
14.1 The Seller shall have no liability or responsibility for the failure of any obligation under this Agreement so long as, and to the extent to which, the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event.
14.2 Where the Seller claims the benefit of this provision it shall promptly after the occurrence of a Force Majeure Event:-
(a) Notify the Buyer of the nature and extent of such Force Majeure Event; and
(b) Use all reasonable endeavours to remove such causes and resume performance under this Agreement promptly.
14.3 For the purposes of this clause 14 a Force Majeure Event means an event beyond the control of the Seller which by its nature could not have been foreseen by the Seller or if it could have been foreseen was unavoidable, and includes acts of God, storms, floods, riots, fire, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war, armed hostilities or national or international calamity, acts of terrorism or failure of energy sources.
15.1 This clause applies if:
15.1.1 The Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
15.1.2 The Buyer ceases or threatens to cease to carry on business; or
15.1.3 The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
15.2 If this clause applies then the Seller shall be entitled to cancel the Order and suspend any further deliveries under the Order without any liability to the Buyer. If any Equipment has been delivered but not paid for the price shall become immediately due and payable.
16. Entire Agreement
16.1 These Terms constitute the entire agreement between the parties in connection with the sale of the Equipment and supersede any previous agreement, statement, representation or understanding given or made before the date of Order Confirmation in relation to the Equipment.
16.2 Neither party relies upon any oral or written statement made by the other (whether made carelessly or not) that is not set out in these terms unless such statement was made or given fraudulently.
17.1 Any notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to that other party at its registered office or its trading address.
17.2 No waiver by the Seller of any breach of these terms by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
17.3 If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, that provision shall be severed from the contract and the validity of the other provisions of these Terms shall not be affected.
18. Disputes and Law
18.1 All disputes arising in relation to these Terms shall be referred to senior officers of each party who shall meet and attempt to settle the dispute between themselves acting in good faith within 30 days.
18.2 If such officers fail to resolve the dispute within 30 days, either party may refer the dispute to mediation. Any reference to mediation shall be made in accordance with the procedures of the Centre for Effective Dispute Resolution (CEDR). A single mediator will be appointed by the parties but if they are unable to agree upon the identity of the mediator, the mediator will be appointed by the CEDR on the application of either party. The mediation shall be conducted in English at an agreed location in England.
18.3 The Contract shall be governed by the laws of England and the Buyer agrees to submit to the exclusive jurisdiction of the English Courts. The United Nations Convention on the International Sale of Equipment shall not apply to these terms. The International Rules for the interpretation of trade terms prepared by the International Chamber of Commerce (IncoTerms) shall apply, but where they conflict with these terms, then these terms shall prevail.
18.4 Nothing in this clause 18 shall limit the right of the Seller to take proceedings against the Buyer in any other court of competent jurisdiction.