(Updated 07/10/2018)
Seller means Morley IT Solutions Limited of Basepoint Business Centre, Metcalf Way, Crawley RH11 7XX.
Buyer the person who buys or agrees to buy the Services from the Seller.
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 Services, excluding VAT and any carriage, packaging and insurance costs.
Force Majeure Event has the meaning set out in clause 12.
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 Services, as set out the Buyer’s written acceptance of the Seller’s quotation, or overleaf, as the case may be.
Services the services supplied by the Seller to the Buyer as set out in the Order.
Seller Materials has the meaning set out in clause 6.1.6.
2.1 These Conditions shall form the basis of the contract between the Seller and the Buyer in relation to the supply of 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 Services shall be deemed to be an offer by the Buyer to purchase Services from the Seller pursuant to these Conditions.
2.3 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. They supersede any other conditions previously issued.
The Price shall be the price quoted on the Order.
4.1 Payment of the Price and VAT shall be due within 7 days of the date of the Seller’s invoice unless otherwise specified on the Seller’s order or invoice.
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 counter-claim against invoices submitted by the Seller.
5.1 The Seller shall provide the Services to the Buyer.
5.2 The Seller shall use its reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
5.3 The Seller 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 Seller shall notify the Buyer in any such event.
5.4 If the Seller supplies goods in the performance of the Services it will do so on behalf of the Buyer and the relevant suppliers commercial terms will apply as if the Buyer had purchased from the supplier directly.
6.1 The Buyer shall:
6.1.1 Ensure that the terms of the Order are complete and accurate;
6.1.2 Co-operate with the Seller in all matters relating to the Services;
6.1.3 Provide the Seller, its employees, agents, consultants and subcontractors, with access to the Buyer’s premises as reasonably required by the Seller to provide the Services;
6.1.4 Provide the Seller with such information and materials as the Seller may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
6.1.5 Obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
6.1.6 Keep and maintain all materials, equipment, documents and other property of the Seller (Seller Materials) 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.
6.2 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 or by any act or omission by any third party instructed by the the Buyer or failure by any third party instructed by the Buyer to perform any relevant obligation (Buyer Default):
6.2.1 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;
6.2.2 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 6.2; and
6.2.3 the Buyer shall reimburse the Seller on written demand for any costs or losses sustained or incurred by the Seller arising directly or indirectly from the Buyer Default.
7.1 Each party agrees to protect the other party's trade secrets, financial information (including, without limitation, costs, pricing, profit or margin information), employees' information (including, without limitation, personal information, skills and remuneration), customer lists, suppliers, inventions, know-how, formulas, specifications, instructions, products or devices, research and development information, testing benchmarks, marketing strategies, future business plans, methods of operation, and any other information that should reasonably be understood to be confidential or proprietary ("Confidential Information"), as well as the Confidential Information belonging to the other party's clients, to the same extent and in the same manner as each party protects its own Confidential Information, but each party agrees that (i) that in no event will less than reasonable care be used and (ii) to not use the Confidential Information of the other party except in connection with the performance of its obligations under this Agreement.
7.2 Each party will be permitted to disclose: (i) relevant aspects of such Confidential Information to its employees on a need-to-know basis, provided they have undertaken to protect the Confidential Information to the same extent as required under this Agreement, and (ii) such Confidential Information that was already known to the receiving party, was disclosed without obligation to keep the information confidential, was publicly known or became publicly known through no-fault of the receiving party, was independently developed by the receiving party without use of the other party’s Confidential Information, or required to be disclosed by a court of competent jurisdiction, in which case the non-receiving party will be granted a reasonable opportunity to obtain a protective order, if such an order is available and necessary to protect the Confidential Information from further disclosure.
7.3 Except as set out in this Agreement, neither party grants to the other any right, title or interest (including any intellectual property rights) in or to its Confidential Information. Upon termination of this Agreement or upon the written instruction of the party owning the Confidential Information, the other party will return or destroy the requesting party’s Confidential Information. For this Agreement, a party will be deemed to have destroyed electronic Confidential Information when it executes an application or operating system-level, commercially reasonable delete function on it.
8.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Seller.
8.2 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.
8.3 All Seller Materials are the exclusive property of the Seller.
9.1 During the term of this Agreement, and for twelve (12) months following its termination, the Buyer will not, without the Seller's prior approval in writing, either directly or indirectly, on their own behalf or in the service of or on behalf of others: (I) solicit, divert, or hire, or attempt to solicit, divert, or hire, any of the Seller's officers, partners, employees, contractors, or other representatives, or (II) persuade or attempt to persuade any of the Seller's officers, partners, employees, contractors, or other representatives to modify, alter, terminate, or not renew their employment or other relationship with the Seller.
10.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
10.1.2 fraud or fraudulent misrepresentation;
10.2 Subject to clause 10.1:
10.2.1 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
10.2.2 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 value of the Order.
10.3 This clause 10 shall survive termination of the Contract.
11.1 Without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than 1 months’ written notice.
11.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
11.2.1 the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 28 days after receipt of notice in writing to do so;
11.2.2 the other party 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 the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
11.2.3 the other party 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;
11.2.4 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 other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
11.2.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
11.2.6 a creditor or encumbrancer of the other party 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;
11.2.7 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 other party (being a company);
11.2.8 the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
11.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
11.2.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.2.2 to clause 11.2.9 (inclusive);
11.2.11 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;11.2.12 the other party’s financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
11.2.13 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
11.3 Without limiting its other rights or remedies, the Seller 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.
11.4 Without limiting its other rights or remedies, the Seller may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Buyer and the Seller 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 11.2.2 to clause 11.2.13, or the Seller reasonably believes that the Buyer is about to become subject to any of them.
11.5 On termination of the Contract for any reason:
11.5.1 the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt;
11.5.2 The Buyer shall return all of the Seller Materials and any Deliverables which have not been fully paid for. If the Buyer fails to do so, then the Seller 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;
11.5.3 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
11.5.4 Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Seller including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Seller or any other party), failure of a utility service or transport network, act of God, war, terrorism, riot, civil commotion, interference by civil of military authorities, national or international calamity, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, earthquake, epidemic or similar events, or default of suppliers or subcontractors.
12.2 The Seller 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.
12.3 If the Force Majeure Event prevents the Seller from providing any of the Services for more than 4 weeks, the Seller shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Buyer.
13.1 Notices.
13.1.1 Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) 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 prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.
13.1.2 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
13.2 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.
13.3 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.
13.4 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
13.5 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.
13.6 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 Seller.
13.7 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.
13.8 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).
Morley IT Solutions
Basepoint Business Centre
Metcalf Way, Crawley
RH11 7XX
01293 850520 | hello@morleyit.com
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