Credit Account Standard Terms & Conditions of Business
The Buyer’s attention is in particular drawn to Clause 8.
Provision of Goods and Services
Subject to the Company’s express written agreement to the contrary, these Terms together with the Buyer’s Order comprise the terms of this Agreement between the Buyer and the Company for the Order.
The Company will supply to the Buyer the Goods and/or Services set out in the Order in accordance with these Terms.
Unless expressly agreed otherwise in writing, the Company does not provide advice regarding the Buyer’s Order and the Buyer must satisfy itself that its Order and (where relevant) the software ordered is appropriate for its purpose(s);
If any advice and/or service is provided by the Company free of charge, such advice and/or service is not a “Service” within the meaning of these Terms and is provided without any warranty of any kind from the Company who, subject to clause 8, shall have no liability in relation thereto.
The Buyer acknowledges that the Company may require the Buyer to enter into further agreements which are specific to the Goods and/or Services on the Order; where the Buyer goes on to accept such specific terms it shall be deemed to accept these Terms also.
Some Goods and/or Services may require additional legal documentation (which the Company may provide to the Buyer) such documentation will have been prepared in accordance with the Company’s view of current best practice but the Buyer acknowledges that the Company is not qualified or insured to give advice on tax or legal matters.
The Buyer acknowledges that the Company uses third parties for the provision of training services, the training provider’s terms and conditions will apply to any provision of training services. Such terms are available on request.
The Buyer shall provide, in a timely manner, such information as the Company may request and ensure that it is complete and accurate in all respects.
Ordering and Cancellation
All Orders shall be deemed to be an offer by the Buyer to purchase Goods and/or Services pursuant to these Terms from the Company and the Company shall not accept an Order unless all details requested on the order form have been entered correctly.
Prior to the provision of the Goods and/or Services the Buyer shall provide “Information” to the Company including all relevant details relating to the Order which will at all times, be complete and accurate in all respects.
The Company shall be entitled to rely upon any information and advice given by the Buyer (its employees, directors, agents and sub-contractors) in relation to the fulfilment of the Order.
No Order submitted by the Buyer shall be deemed to be accepted by the Company unless and/or until the Company confirms acceptance of the Order in writing (for the purposes of this clause writing may include email).
If the Buyer wants to i) amend the Information/Order; and/or ii) cancel the Order or any part thereof; the Company will provide reasonable assistance to the Buyer in trying to achieve the same. The Buyer acknowledges that third parties may have been instructed in the provision of the Goods and/or Services and that a change to the Order may not be possible without incurring a charge. Subject to the Buyer paying the Company’s invoices when due, the Company may try to put in place agreements between the Buyer and the relevant third party, under which the third party may agree to such alteration/cancellation of the Order; the Company cannot guarantee that the third party will agree to the same and the Company shall not be obliged to resolve the matter.
The Price for the Goods and/or the Services shall be as set out in the Company’s invoice; the Company reserves the right to charge the buyer the amount of any mistake, error or omission in the Price by the Company or any supplier; for the avoidance of doubt, such Price may, in part, be based on the Information provided by the Buyer.
The Buyer agrees that the Company has the right at any time before delivery of the Goods and/or Services to withdraw any discount and/or to revise any Price quoted if there is a change in the cost to the Company of supplying the Services whether by reason of exchange rate fluctuations, third party charges or otherwise.
The Company tries to ensure that all prices on its website, in its marketing materials and its price lists are accurate, but errors may occur. If the Company discovers an error in the price of Goods and/or Services on the Order it will inform the Buyer as soon as possible and give the Buyer the option of reconfirming the Order at the correct price or cancelling.
Unless otherwise specified VAT and any other duties or taxes payable, and all costs and charges in relation to carriage, insurance or similar shall be payable in addition to the Price.
If any withholding or other taxes are required to be deducted from any money to be remitted to the Company pursuant to the Agreement the Buyer must ensure that no improper deductions are made and the Buyer shall (at the Buyer’s cost and expense) provide the Company with all necessary receipts, certificates and other documents and such information as the Company may require to enable the Company to claim any tax credit or other tax advantage.
Payment is due in full in pounds sterling without deduction or set-off within 30 days of the date of invoice (unless otherwise agreed). Time for payment is of the essence.
If any payment is not made when due the Company may charge, and the Buyer shall pay on demand, statutory interest on the amount from time to time outstanding from the due date until payment.
The Company may suspend or cancel deliveries or modify credit terms if payment is late or if the Company considers the Buyer’s financial circumstances or standards of operation have changed.
Should any invoice not be paid by its due date, then all invoices (whether otherwise due for payment or not) and all other sums (whether invoiced or not) shall become immediately due and payable by the Buyer to the Company.
Delivery and Risk
The Goods and/or Services will be provided or delivered to the Buyer delivery charges will be based on the Company’s standard charges in force from time to time. Risk in the Goods will pass to the Buyer on delivery.
Any dates specified by the Company for delivery in relation to the Agreement are an estimate only and in relation to the same, time shall not be of the essence nor shall time be made of the essence against the Company by notice. If no delivery dates are specified, delivery will be within a reasonable time.
While the Company will make every reasonable effort to meet the Order, all orders are accepted conditionally upon availability and the Company shall not be liable if prevented from meeting the Order because the Goods and/or Services (or any part thereof) are not readily available by reason of any circumstances outside the control of the Company.
Passing of Property
Property in any part of the Goods and/or Services shall not pass to the Buyer until the Company has received in full (in cash or cleared funds): (a) all sums due to it in respect of the Goods and/or Services; and (b) all other sums which are or which become due to the Company from the Buyer on any account. All ownership, title and intellectual property rights in and to the software and software licences (if any), including any associated media and any documentation or printed materials are owned by either the Company or the software provider. Any implied or actual licence shall be revocable upon non-payment.
In the event of late payment, the Buyer shall do and execute all such lawful and necessary acts, deeds, documents and things within its power as the Company may reasonably require in order for the Company to minimise its losses resulting from such late payment.
Until such time as any property in the Goods passes to the Buyer, the Buyer shall hold such Goods on trust for the Company and shall properly store and insure the same. During such time the Buyer shall be entitled to use the Goods in the ordinary course of its business notwithstanding the Company shall be entitled at any time to require the Buyer to deliver up the Goods to the Company and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored or are believed to be stored and repossess the same.
Subject to the Company’s advance written consent, the Buyer may resell the Goods in the ordinary course of its business. In any re-sale of the Goods before property has passed the Buyer shall, as regards the Buyer’s purchaser, act as principal but shall hold in trust for the Company so much of the resale proceeds as is necessary to discharge the Buyer’s indebtedness to the Company.
The Buyer acknowledges and agrees that the Company may at any time serve notice upon the Buyer requiring the Buyer to novate the Order to a third party and the Buyer will enter into such further documents as is reasonably required to legally effect such novation.
The Buyer understands and agrees that where the Company purchases goods and/or services for the Buyer from a third party the Company shall purchase such goods and/or services as agent for the Buyer and it shall be the Buyer's responsibility to ensure that such goods and/or services are suitable for its requirements and, subject to clause 8, the Company shall have no responsibility or liability for such goods and/or services (whether for their suitability, performance or otherwise).
The Company shall not be liable for defects in Goods and/or Services caused by fair wear and tear, abnormal conditions of storage, of use or any act, neglect or default of the Buyer or any third party.
Any manufacturer’s terms or conditions of sale or general application endorsed on Goods and/or Services supplied by the Company shall be observed and complied with by the Buyer. If there is any inconsistency between the manufacturer’s terms and conditions and these Terms, these Terms shall prevail.
The Company shall be entitled, as soon as it is reasonably able, to investigate any alleged material defect the Goods and/or Services and in the event of such defect being proved, shall remedy the same in accordance with its returns policy (such policy is available on request). The Buyer shall at the Company’s election indemnify the Company against costs incurred by the Company where Goods and/or Services prove not to have been materially defective.
Limitation of Liability
The Buyer shall promptly notify the Company in writing of any issues it has with the Goods and/or the Services (including, without limitation, non-delivery, damage to, shortages or defects in the Goods and/or Services); if the Buyer does not report any issues with the Goods and/or Services within five (5) working days of delivery of the same, the Goods and/or Services shall be deemed to have been accepted by the Buyer. The Buyer shall not reject any of the Goods and/or Services in the event of non-delivery, shortages, or claims made by the Buyer against the Company.
Subject to clauses 8C and 8D: (a) even if such loss was reasonably foreseeable or if the Company has been advised of the other party incurring the same the Company shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for: (i) loss of profits; or (ii) loss of anticipated profits; or (iii) loss of revenues; (iv) loss of anticipated savings; (v) depletion of goodwill or similar losses; or (vi) loss of business opportunity; or (vii) loss or corruption of data or information; or (viii) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; (b) the Company's aggregate liability to the Buyer in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, in respect of all matters arising in connection with the performance or contemplated performance of the Agreement shall be limited to £250,000; and (c) the Company shall not be liable for any defects in, or any delays or failures to provide, any Goods and/or Services or any issue caused by any such defect and/or delay and/or failure which has arisen as a result of any action of any third party.
Nothing in these conditions excludes the liability of the Company for: (a) death or personal injury resulting from its own or its employees’, agents’ or sub-contractors’ negligence; and/or (b) any fraudulent misrepresentation or fraudulent acts of its employees; and/or (c) any breach of its obligations implied by the Sale of Goods Act 1979 and/or the Supply of Goods and Services Act 1982.
All other warranties, conditions and other terms implied by statute or common law that have not been expressly referred to within this Agreement are, to the fullest permitted by law, excluded from the Agreement.
The Company shall have the right at any time and for any reason to terminate the Agreement in whole or in part by giving the Buyer written notice whereupon all work shall be discontinued.
On termination, the Buyer shall pay to the Company all liabilities (including work in progress) and all outstanding payments due under the Agreement and without limitation the Company shall be entitled to charge the Buyer for those parts of the Order already provided and/or ordered.
The Buyer shall keep in strict confidence all confidential information concerning the Company’s business disclosed to the Buyer or its agents by the Company and the Buyer shall restrict disclosure of such information to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Buyer’s obligations to the Company and shall ensure that the same are subject to like obligations of confidentiality.
The Company will use its reasonable endeavours to only use the Buyer’s information, or disclose it, in order to comply with its obligations under this Agreement, the Buyer acknowledges and agrees that the Company employs other companies to assist in the provision of some of the Goods and/or Services and these companies have access to the information needed to perform their functions.
Nothing in these Terms shall assign, transfer to or vest in the Buyer any intellectual property rights owned by or licensed to the Company. Each party to this Agreement agrees not to use any trademark name or trademark owned by or licensed to the other party or any company in the same group of companies as such other party, without the prior written consent of the owner.
The Company shall have no liability under or be deemed to be in breach of this Agreement for any loss or damage which may be suffered by the Buyer as a direct or indirect result of delays of failures in the performance of this Agreement by the Company which result from circumstances beyond its reasonable control or other circumstances affecting the supply of the Goods and/or Services from the Company’s normal source of supply or the delivery of the Goods and/or Services by the Company’s normal route or means of delivery.
The following expressions shall have the following meanings: the “Agreement” means the Order and the Company’s acceptance of the Order; the “Company” means Bytes Software Services Limited; “the Buyer” means the person, firm or company offering to buy Goods and/or Services from the Company; “Order” means the items that the Buyer is buying or offering to buy from the Company; “Price” means the price to be paid by the Buyer for the Goods and/or Services; “Goods and/or Services” means the goods and/or services specified in the Order to be bought by the Buyer from the Company (including any parts therein and, without limitation, shall include software).
The Company reserves the right to vary these Terms by not less than seven days’ notice in writing to the Buyer.
It is acknowledged and agreed that this Agreement (including the documents and instruments referred to herein) (“the Documents”) shall supersede all prior representations arrangements understandings and agreements between the parties relating to the subject matter hereof and shall constitute the entire complete and exclusive agreement and understanding between the parties hereto.
The parties irrevocably and unconditionally waive any right they may have to claim damages for any misrepresentation arrangement understanding or agreement not contained in the Documents or for any breach of any representation not contained in the Documents (unless such misrepresentation or representation was made fraudulently);
It is further acknowledged and agreed that no representations arrangements understandings or agreements (whether written or oral) made by or on behalf of any of the other parties have been relied upon other than those expressly set out or referred to in the Documents.
The Company may at any time assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it, or sub-contract any or all of its obligations under it. The Buyer may not any time assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it without the Company’s prior written consent.
Subject to any variation under Clause 13B and/or any express written agreement to the contrary between the parties, these Terms are the only terms upon which the Company is prepared to deal with the Buyer and they shall prevail over and exclude any other terms or conditions stipulated or incorporated or referred to by the Buyer or his agent or any third party.
No informal variation or relaxation of these Terms shall in any way be treated as a waiver of the Company’s strict legal rights.
The Agreement shall be governed by English Law and subject to the exclusive jurisdiction of the English Courts.
Each of the Terms is separate and distinct and any part held to be unenforceable by a court shall be considered removed and shall not affect the validity of the remainder. No particular Term shall be taken as limiting, prejudicing or affecting in any way any other Term or any right, remedy or entitlement of the Company.
The parties to the Agreement do not intend that any term of the Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.