1.1 In these conditions of sale the following words will (unless the context otherwise requires) have the following meanings:
“Conditions” means the conditions set out below and in the Order Acknowledgement. Where any terms below conflict with any terms in the Order Acknowledgement the terms in the Order Acknowledgement will take precedence.
“Contract” means any contract between MB TECHNOLOGY and the Customer for the sale of any Works.
“Customer” means the company, firm, body or person purchasing the Works.
“Customer’s Property” means any Goods returned by the Customer to MB TECHNOLOGY (which are found to be NDF under clause 8.8 or any specifications, drawings, designs, packaging, equipment, goods, materials, instructions, approvals or information supplied by or on behalf of the Customer to MB TECHNOLOGY in connection with the Works.
“Goods” means any goods or materials which MB TECHNOLOGY agrees to provide to the Customer.
“IPR” means all Confidential Information, patents, trade marks and service marks, rights in designs, trade or business names, copyright (including rights in computer software), database rights and topography rights (whether or not any of these is registered and including applications for registration of any such thing) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.
“Order Acknowledgement” means the written acknowledgement of and acceptance by MB TECHNOLOGY of the Customers request to purchase any Works.
“Services” means any work and/or services which MB TECHNOLOGY agrees to provide to the Customer.
“Works” means Goods and/or Services (as appropriate).
1.2 The words “agreed in writing” will mean expressly agreed in writing and signed by a director of MB TECHNOLOGY.
1.3 The headings are for reference only and will not affect the interpretation of these Conditions.
1.4 MB TECHNOLOGY reserves the right at anytime without liability to correct any clerical, typographical or other similar errors or omissions made by its employees.
2.1 Any quotation (whether written or oral) is given on the basis that no contract will come into existence other than in accordance with the provisions of clauses 3.5 and 3.6.
2.2 Unless otherwise agreed in writing any quotation is valid only for a period of 24 hours from its date of issue provided that MB TECHNOLOGY has not previously withdrawn it by written or oral notice to the Customer.
3.1 (Subject to clause 3.4) these Conditions are the only conditions on which MB TECHNOLOGY is prepared to deal with the Customer and they will govern the Contract and all of MB TECHNOLOGY’s future supplies to the Customer.
3.2 No terms, conditions or warranties endorsed upon, delivered with, referred to or stipulated or contained in any purchase order or other similar document delivered or sent by the Customer to MB TECHNOLOGY will form part of the Contract.
3.3 Any reference in the Order Acknowledgement to the Customer’s purchase order or other similar document will not be deemed to imply that any terms, conditions or warranties endorsed upon, delivered with, referred to, stipulated or contained in such purchase order or other similar document will form part of the Contract.
3.4 No employee or agent of MB TECHNOLOGY has authority to vary these Conditions orally. No variation to, waiver of or addition to these Conditions or any representation about the Works will have any effect unless it is agreed in writing and contains a specific reference to these Conditions and is signed on MB TECHNOLOGY’s behalf by a director of MB TECHNOLOGY.
3.5 Each purchase order for Works issued by the Customer will be deemed to be an offer by the Customer to purchase Works subject to these Conditions.
3.6 No purchase order placed by the Customer will be deemed to be accepted by MB TECHNOLOGY until an Order Acknowledgement is issued by MB TECHNOLOGY or (if earlier) MB TECHNOLOGY supplies the Works to the Customer.
3.7 The Customer must ensure that the content of its order and any applicable specification are complete and accurate.
3.8 Unless otherwise agreed in writing all drawings, illustrations, descriptions, specifications, technical data, advertising and other similar information issued by MB TECHNOLOGY or contained on MB TECHNOLOGY’s Website or in MB TECHNOLOGY’s catalogues, brochures, trade literature, price lists or other similar published materials are issued or published only for the purpose of giving an approximate idea of the Works described in them and will not form part of the Contract.
3.9 Any purchase order which has been accepted by MB TECHNOLOGY in accordance with clause 3.6 may only be cancelled, postponed or varied by the Customer with the prior written consent of MB TECHNOLOGY and on terms that the Customer will indemnify MB TECHNOLOGY in full against all losses (including but not limited to loss of profit), costs (including but not limited to inventory and other commitments made by MB TECHNOLOGY as a result of such purchase order), damages, charges and expenses incurred (directly or indirectly) by MB TECHNOLOGY as a result of such cancellation, postponement or variation.
4.1 Any times specified or agreed by MB TECHNOLOGY for the delivery of the Works are given in good faith but are an estimate only. MB TECHNOLOGY will use its reasonable endeavours to deliver the Works within the times specified in the Order Acknowledgement or otherwise agreed in writing and if no time is specified or agreed by MB TECHNOLOGY delivery will take place within a reasonable time. The time for the delivery of the Works will not be of the essence of the Contract.
4.2 (Subject to the provisions of clause 4.3) the Customer will collect the Works from MB TECHNOLOGY’s place of business and delivery will be deemed to take place when MB TECHNOLOGY notifies the Customer that the Works are ready for collection and unless otherwise agreed in writing the Customer will collect the Works within 3 working days of the issue of such notice.
4.3 If MB TECHNOLOGY agrees to deliver the Works then subject to clause 4.4 delivery will be deemed to take place when the Works are delivered to the Customer at the place stated in MB TECHNOLOGY’s Order Acknowledgement or such other place as the parties may agree except that delivery to a carrier for the purpose of transmission to the Customer will be deemed to be delivery to the Customer and sections 32(2) and (3) of the Sale of Goods Act 1979 will not apply.
4.4 Subject to clause 4.3 MB TECHNOLOGY will make such arrangements for the carriage and insurance of the Works as it thinks appropriate but the Customer will indemnify MB TECHNOLOGY against any costs or expenses MB TECHNOLOGY incurs as a result of such carriage and insurance (including but not limited to export and/or import duties and any costs of packing, loading and/or unloading) such costs and/or expenses to be paid by the Customer when it is due to pay for the Works.
4.5 MB TECHNOLOGY will use reasonable endeavours to ensure where necessary that the Works will be packed so as to be adequately protected against damage in normal conditions of transit of usual duration.
4.6 MB TECHNOLOGY may deliver the Works in instalments. Deliveries of further instalments may be withheld until the Works comprised in earlier instalments have been paid for in full. Default by MB TECHNOLOGY (howsoever caused) in respect of one or more instalments will not entitle the Customer to terminate the relevant Contract as a whole.
4.7 In the event of any delay in the delivery of any Goods and/or the performance of any Services which are attributable to any act or omission by the Customer:
(a) delivery of the Goods and/or performance of the Services will be deemed to have taken place at the time which but for such delay, delivery or performance it would have taken place and any extra costs (including but not limited to storage and insurance costs) incurred as a result of such delay will be added to the Contract price and paid by the Customer; and
(b) MB TECHNOLOGY may sell or otherwise dispose of such Goods (as it sees fit) 28 days after such delay and deduct any monies payable to MB TECHNOLOGY by the Customer from the sale proceeds and account to the Customer for any excess or charge the Customer for any shortfall.
4.8 Where the Works are to be supplied from stock such supply is subject to the availability of the stock at the date of delivery.
4.9 On delivery to the Customer all Works should be examined by the Customer. MB TECHNOLOGY will not be liable for any damage to or any shortages in or non-delivery of the Works (even if caused by MB TECHNOLOGY’s negligence) unless the same is notified in writing by the Customer to MB TECHNOLOGY (together with all relevant details) within 48 hours of the actual or anticipated date of delivery (as appropriate). Any damage to or any shortages in or non-delivery of part of the Works will not affect the Contract in respect of the other parts of the Works.
4.10 Subject to a notice being provided in accordance with clause 4.9 MB TECHNOLOGY will, if it is reasonably satisfied that any Works have not been delivered as a result of MB TECHNOLOGY’s fault (in its sole discretion) either arrange for delivery as soon as reasonably possible or (where the Contract price has been invoiced) give credit (at the pro rata Contract price) to the Customer for such Works. 4.11 If MB TECHNOLOGY complies with clause 4.9 it will (subject to clause 9.2) have no further liability (in contract, tort (including but not limited to negligence) or otherwise) for such shortages or non-delivery.
4.12 The Customer will (at its own expense) provide such advice, assistance and information as may be required to enable MB TECHNOLOGY to perform its obligations under this Contract.
5.1 The Customer acknowledges that before entering into this Contract it has expressly represented and warranted that it is not insolvent and has not committed any act of bankruptcy, or being a company with limited and unlimited liability, knows of no circumstances which would entitle any debenture holder or secured creditor to appoint a receiver, to petition for winding up of the Customer or exercise any other rights over or against the Customer’s assets.
5.2 (Unless otherwise agreed in writing) the Goods are at the risk of the Customer from the time of delivery or deemed delivery (as appropriate) to the Customer in accordance with these Conditions and loading and off loading (as appropriate) will be at the Customer’s risk. Section 20(2) of the Sale of Goods Act 1979 will not apply.
5.3 (Notwithstanding that risk in the Goods will pass to the Customer in accordance with the provisions of clause 5.2) ownership of the Goods (both legal and equitable) will remain with MB TECHNOLOGY (unless ownership is properly vested in some other person by the operation of any statute) until MB TECHNOLOGY has received in full (in cash or cleared funds):
(a) all sums due in respect of the Goods; and
(b) all other sums which are or which become due to MB TECHNOLOGY from the Customer on any account.
5.4 Until ownership of the Goods has passed to the Customer under clause 5.3, the Customer will:
(a) hold the Goods on a fiduciary basis as MB TECHNOLOGY’s bailee;
(b) keep the Goods free from any charge, lien or other encumbrance;
(c) store the Goods (at no cost to MB TECHNOLOGY) separately from all other goods or materials of the Customer or any third party in such a way that they remain readily identifiable as MB TECHNOLOGY’s property and easily accessible to MB TECHNOLOGY;
(d) not destroy, deface or obscure any identifying mark on the Goods or their packaging;
(e) maintain the Goods in a satisfactory condition;
(f) insure the Goods on MB TECHNOLOGY behalf for their full price or replacement value (whichever is the greater) against all usual risks and to the reasonable satisfaction of MB TECHNOLOGY and on request produce such policy of insurance to MB TECHNOLOGY;
(g) hold all proceeds of the insurance referred to in clause 5.4(f) on trust for MB TECHNOLOGY and not mix it with any other money or pay the proceeds into any overdrawn bank account; and
(h) allow MB TECHNOLOGY access at any reasonable time to enable MB TECHNOLOGY to verify that the Customer has complied with its obligations under this clause 5.4.
5.5 The Customer may resell, use or otherwise dispose of the Goods before ownership has passed to it only if any such sale, use or disposition will be effected in the ordinary course of the Customer’s business at full market value and will be a sale, use or disposition of MB TECHNOLOGY’s property on the Customers own behalf and the Customer will deal as principal when marking such sale, use or disposition.
5.6 Once payment becomes due, MB TECHNOLOGY may while the owner of the Goods (without prejudice to its other rights) demand the immediate return of the Goods at any time and the Customer must comply with (and bear the cost of) such demand immediately. If the Customer fails to return such Goods, the Customer grants to MB TECHNOLOGY or its successors in title, and their respective employees and agents, an irrevocable license to enter the Customer’s premises (with or without vehicles) to remove the Goods (the cost of which shall be borne by the Customer) and may sell or otherwise deal with the Goods.
5.7 MB TECHNOLOGY will be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from MB TECHNOLOGY.
5.8 The Goods will be deemed sold or used in the order delivered to the Customer.
6.1 The price for the Works will be the price set out in the Order Acknowledgement (or otherwise agreed in writing) between the parties.
6.2 Each price is based on the scope of the Works and the instructions and information provided by the Customer. MB TECHNOLOGY reserves the right (in its absolute discretion) to amend the price to cover any increase in cost which may arise as a result of additional Works being requested by the Customer (and agreed by MB TECHNOLOGY) or additional or incomplete instructions or information being provided by the Customer.
6.3 Quotations given in a currency other than sterling are based on the rate of exchange at the time of quoting and (unless otherwise agreed in writing between the parties) the price may be subject to revision if any different rate of exchange is ruling at the date of invoice.
6.4 (Unless otherwise agreed in writing) the price for the Works is exclusive of any value added tax (and any other tax or duty relating to the manufacture, transportation, sale or delivery of the Works) and any costs or charges in relation to export and/or import, packaging, loading, unloading, carriage and insurance. Such costs and expenses will be paid by the Customer when it is due to pay for the Works.
6.5 Where MB TECHNOLOGY agrees (in its discretion) to bring forward the date of delivery of the Works at the Customers request any additional costs reasonably incurred by MB TECHNOLOGY shall be charged to the Customer in addition to the Contract price.
6.6 MB TECHNOLOGY may invoice the Customer for the Works at any time after the delivery of the Works or the delivery of any instalment (as appropriate). If any delivery is postponed at the request or by the default of the Customer then MB TECHNOLOGY may submit its invoice at any time after the Works are ready for delivery or would have been ready but for such request or default on the part of the Customer.
6.7 (Unless otherwise agreed in writing) where the terms for payment in the Order Acknowledgement show “COD”, MB TECHNOLOGY will not be bound to deliver the Goods until the Customer has paid the price for them. Payment shall be due before the Delivery Date.
6.8 (Unless otherwise agreed in writing) where the terms for payment in the Order Acknowledgement show “Net”, payment of the price will be due on the date when the period as specified in the Order Acknowledgement expires.
6.9 Where no terms for payment are set out in the Order Acknowledgement or otherwise agreed in writing payment of the price will be made within 30 days from the date of delivery of the Works.
6.10 No payment will be deemed to have been received until MB TECHNOLOGY has received cleared funds.
6.11 Time for payment will be of the essence of the Contract and the Customer will indemnify MB TECHNOLOGY against all reasonable expenses, debt recovery fees, Court fees, solicitor’s fees and disbursements incurred by MB TECHNOLOGY in recovering overdue amounts.
6.12 All payments payable to MB TECHNOLOGY under the Contract will become due immediately on termination of this Contract notwithstanding any other provision of these Conditions.
6.13 The Customer will make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by MB TECHNOLOGY to the Customer.
6.14 MB TECHNOLOGY may (but will not be obliged) at any time or times without notice to the Customer set off any liability of the Customer to MB TECHNOLOGY against any liability of MB TECHNOLOGY to the Customer (in either case howsoever arising and whether such liability is present, future, liquidated or unliquidated). MB TECHNOLOGY and Customer agree that in exercising this right to set off, MB TECHNOLOGY shall be doing no more than discharging its own liability by the application of its own asset. Any exercise by MB TECHNOLOGY of its rights under these Conditions will be without prejudice to any other rights or remedies available to MB TECHNOLOGY under these Conditions or otherwise.
6.15 If the Customer fails to pay MB TECHNOLOGY any sum due pursuant to the Contract the Customer will, subject to clause 6.16, be liable to pay interest to MB TECHNOLOGY on such sum from the due date for payment at an annual rate of 4% above the base lending rate of Royal Bank of Scotland plc from time to time accruing on a daily basis until payment is made in full (whether before or after any judgement).
6.16 As an alternative to its remedy in clause 6.15 MB TECHNOLOGY reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
6.17 Without prejudice to the provision of clauses 6.14 and 6.15 if the Customer fails or MB TECHNOLOGY reasonably believes that the Customer will fail to pay for the Work or any other work under any other contract when due MB TECHNOLOGY may:
(a) demand payment of all outstanding balances whether due or not under this Contract or any other contract between the Customer and MB TECHNOLOGY;
(b) treat the Contract or any other contract between the Customer and MB TECHNOLOGY as repudiated by the Customer;
(c) suspend any future performance of the Contract or any other contract between the Customer and MB TECHNOLOGY until all overdue sums have been paid; or
(d) appropriate any payments made by the Customer to such of the Works (or such works supplied under any other contract between the Customer and MB TECHNOLOGY) as MB TECHNOLOGY may think fit (notwithstanding any purported appropriation by the Customer).
7.1 The Customer acknowledges that MB TECHNOLOGY is not the manufacturer of the Goods and may not itself perform any or all of the Services and that MB TECHNOLOGY’s expertise is in the sourcing of the Works only. The Customer acknowledges that as an intermediate supplier of the Goods MB TECHNOLOGY only checks the external packaging of the Goods for obvious signs of damage and does not in any way inspect the quality or condition of the Goods themselves.
7.2 The Customer acknowledges that the manufacturer of the Works typically provides warranty assurances directly for the benefit of end users of the Works.
7.3 The Customer acknowledges that MB TECHNOLOGY does not hold itself out as having any particular expertise in relation to the actual Works and the Customer agrees that it relies entirely on its own skill and judgement in evaluating the suitability and fitness of the Works for its purpose.
7.4 The Customer acknowledges that the prices charged by MB TECHNOLOGY for the Works are based strictly on the quality assurances set out in this clause 7.
7.5 Based on the acknowledgements set out in this clause 7 MB TECHNOLOGY will:
(a) use its reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given to MB TECHNOLOGY;
(b) comply with its returns policy as set out in clause 8; and
(c) (where MB TECHNOLOGY itself performs the Services rather than procuring a third party to perform the Services to the Customer on behalf of MB TECHNOLOGY) perform the Services with reasonable skill and care.
7.6 The Customer agrees that MB TECHNOLOGY will not (subject to clauses 7.5 and 9.1) be responsible for or give any warranties in relation to the quality or suitability of the Works and that provided MB TECHNOLOGY complies with the provisions of clause 7.5 MB TECHNOLOGY will (subject to clause 9.2) have no further liability (in contract, tort (including but not limited to negligence) or otherwise) for any quality or suitability claims in relation to the Works.
8.1 Any Goods to be returned by the Customer to MB TECHNOLOGY will only be dealt with by MB TECHNOLOGY in accordance with the provisions set out in this clause 8.
8.2 Where the Customer wishes to return any Goods (for any reason) the Customer should first contact its account manager at MB TECHNOLOGY. Should the problem not be resolved to the Customer’s satisfaction the Customer should contact MB TECHNOLOGY’s technician services customer returns desk (details of which are available at www.mbtechnology.co.uk or through the Customer’s usual contact at MB TECHNOLOGY) who will ask the Customer to provide the information requested in the customers returns request form (details of which are available at www.mbtechnology.co.uk or through the Customer’s usual contact at MB TECHNOLOGY) which can be sent to MB TECHNOLOGY by fax, e-mail, hard copy or online. The Customer acknowledges that delays will occur in cases where any of the requested information is not provided.
8.3 Returns Merchandise Authorisation (“RMA”). An RMA number must be obtained from the MB TECHNOLOGY technical services customer returns desk before any return will be processed in accordance with this clause 8. Goods returned without a valid RMA number are likely to be rejected by MB TECHNOLOGY. RMA numbers are valid for 10 days from the date of issue. If the Goods are not returned within 10 days the RMA will be cancelled and a new RMA number must be requested if the Customer still wishes to return the Goods. When preparing the Goods for return the Customer must ensure that the RMA number is clearly visible on a label on the outer covering.
8.4 Incorrectly Ordered Goods. Incorrectly ordered Goods are the responsibility of the Customer. The Customer acknowledges that MB TECHNOLOGY is under no obligation to accept the return of incorrectly ordered Goods.
8.5 Returns Due to Later Delivery. Returns due to late delivery must be requested by fax or e-mail within 24 hours of the due delivery date. The original purchase order must contain details of any cut-off delivery date and MB TECHNOLOGY must agree in writing that a deadline for delivery had been accepted by MB TECHNOLOGY. If MB TECHNOLOGY has accepted such deadline MB TECHNOLOGY will at its own cost arrange for the collection of goods falling into this category.
8.6 Defective On Arrival (“DOA”) Goods. DOA Goods are those found to have a fault on delivery. The fact that there is a fault must be confirmed by someone with technical knowledge and the Customer must provide as much specific technical detail as is reasonably possible. DOA Goods must be notified within 7 days of delivery of the Goods in order to qualify for credit or replacement (at MB TECHNOLOGY’s option and in MB TECHNOLOGY’s absolute discretion). The packaging of the Goods must be in pristine condition otherwise the Customer will be subject to a minimum 20% handling/restocking fee. The freight cost of returning the Goods to MB TECHNOLOGY will be the responsibility of the Customer. MB TECHNOLOGY will meet the reasonable costs of returning replacement Goods (as appropriate) to the Customer and also any carriage costs incurred in sorting the problem out.
8.7 No Defect Found (“NDF”). If Goods are returned and are found to be of NDF status a handling/restocking fee of at least 20% will be invoiced. The percentage charged will depend on amongst other things the amount of labour involved and the condition of the packaging and contents and MB TECHNOLOGY reserves the right to insist on a purchase order covering this cost and the return freight cost before returning the Goods.
8.8 Goods Returned Not In Original Condition. Goods returned where the packaging and/or contents is found not to be in its original condition are likely to be rejected on arrival. Should MB TECHNOLOGY agree to accept such Goods (in its absolute discretion) MB TECHNOLOGY reserves the right to impose a handling/re-stocking fee of at least 20% of the original sale value of the Goods. Should items be damaged in transit during its return to MB TECHNOLOGY it is the responsibility of the Customer (and not MB TECHNOLOGY) to take this matter up with the carriers.
8.9 Packaging and Labelling. Where possible, the packaging of the Goods being returned should be protected by using an outer cover. The Customer should not write on, or attach labels, to the packaging itself if this can be avoided. When preparing the Goods for return the Customer should ensure that the RMA number is easily visible on a label on the outer covering.
8.10 Overdue Accounts. No returns will be accepted from any Customer whose account is overdue.
8.11 MB TECHNOLOGY will not be obliged to comply with any of the provisions in this clause 8 unless
(a) (where the Goods are faulty and the fault is apparent on reasonable inspection) the Customer gives written notice of the fault to MB TECHNOLOGY within 7 days of the date of delivery of the Goods; and
(b) (where the Goods are faulty and fault is not apparent on reasonable inspection) the Customer gives written notice of the fault to MB TECHNOLOGY within 7 days of the date when the Customer discovers or ought reasonably to have discovered the fault.
8.12 Notwithstanding any other provision of this clause 8 if the Goods are found to be faulty but:
(a) the fault arises as a result of the Customer’s negligence;
(b) the fault arises as a result of fair wear and tear or abnormal working conditions;
(c) the fault arises as a result of any misuse, physical damage (including but not limited to dropping, spillage or foreign objects) or accident (unless MB TECHNOLOGY is directly responsible for such);
(d) the Customer makes any further use of the Goods after giving written notice of a fault;
(e) the fault arises because the Customer has failed to follow MB TECHNOLOGY’s or the manufacturers instructions (whether oral or in writing) as to the storage, assembly, use, handling or maintenance of the Goods or (if there are none) good trade practice;
(f) the fault arises as a result of any testing or commissioning of the Goods performed by the Customer or any third party;
(g) the fault arises as a result of any alteration, servicing or repair of the Goods not made by MB TECHNOLOGY; or
(h) the Customer acknowledges that the Contract states that the Goods are sold in their actual state without warranty then the Customer acknowledges that MB TECHNOLOGY is not obliged to comply with its obligations under this clause 8, that MB TECHNOLOGY reserves the right to apply a reasonable labour charge to the Customer without completing any repair and MB TECHNOLOGY reserves the right to retain the Goods until a purchase order is received covering the labour charge and the return freight cost.
9.1 All warranties, conditions and other terms implied by statute or common law (except for the conditions implied by section 12 of the Sale of Goods Act 1979 but subject always to the provisions of clause 12.2)) are, to the fullest extent permitted by law, excluded from the Contract.
9.2 Nothing in these Conditions exclude or limit the liability of MB TECHNOLOGY for fraudulent misrepresentation or for any death or personal injury caused by MB TECHNOLOGY’s negligence.
THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSES 9.3 AND 9.4
9.3 (Subject to clause 9.1 and 9.2) MB TECHNOLOGY will not be liable to the Customer in contract, tort (including but not limited to negligence), misrepresentation or otherwise for any:
(a) economic loss of any kind (including but not limited to loss of use, profit, anticipated profit, business, contracts, overhead recovery, machining costs, revenue or anticipated savings);
(b) any damage to the Customer’s reputation or goodwill;
(c) any product recall or business interruption costs: or
(d) any other special, indirect or consequential loss or damage (even if MB TECHNOLOGY has been advised of such loss or damage) arising out of or in connection with the Contract.
9.4 (Subject to the provisions of clause 9.1, 9.2 and 9.3) MB TECHNOLOGY’s total liability in contract, tort (including but not limited to negligence), misrepresentation or otherwise arising out of or in connection with this Contract will be limited to the Contract price.
9.5 The provisions of this clause 9 shall survive the termination or expiry (for whatever reason) of this Contract.
9.6 THE PRICES CHARGED FOR THE WORKS ARE BASED STRICTLY ON THE UNDERSTANDING OF ACCEPTANCE BY THE CUSTOMER OF THE PROVISIONS IN THE CONTRACT FOR THE LIMITATION OF MB TECHNOLOGY’S LIABILITY. SHOULD THE CUSTOMER REQUIRE MB TECHNOLOGY TO ACCEPT ADDITIONAL LIABILITY THIS MAY BE DISCUSSED BETWEEN THE PARTIES AND THE PRICE INCREASED ACCORDINGLY.
10.1 While MB TECHNOLOGY will take reasonable care of the Customer’s Property whilst it is in MB TECHNOLOGY’s possession, control or custody the Customer’s Property will (unless otherwise agreed in writing) remain at the Customer’s risk and responsibility.
10.2 MB TECHNOLOGY will not be liable for any loss or damage to the Customer’s Property unless such loss or damage arises as a direct result of MB TECHNOLOGY’s negligence. Where MB TECHNOLOGY is liable under this clause 10.1 MB TECHNOLOGY’s liability to the Customer will be limited to the actual cost of the replacement or repair of the loss or damage to the Customer’s Property.
10.3 The Customer will ensure that the Customer’s Property is in good condition and suitable for use by MB TECHNOLOGY in the performance of the Contract and while MB TECHNOLOGY will use reasonable endeavours to verify any relevant aspects of the Customer’s Property no responsibility is accepted by MB TECHNOLOGY for its accuracy.
10.4 Any defect in the Works which is due in whole or in part to the Customer’s Property will not entitle the Customer to terminate the Contract, reject the Works, make any deductions from the Contract price or claim damages in respect of such defect.
10.5 The Customer will keep MB TECHNOLOGY indemnified in full against all liability, loss, damage, injury, claim, action, demand, expense or proceeding awarded against or incurred by MB TECHNOLOGY as a result of or in connection with the use by MB TECHNOLOGY of the Customer’s Property.
10.6 MB TECHNOLOGY (without prejudice to any other remedy it may have) has a general lien on all of the Customer’s Property in its possession (for any reason) in respect of all sums owed to MB TECHNOLOGY by the Customer.
11.1 The Customer will keep confidential all technology, technical data, commercial information, know-how, specifications, inventions, processes, initiatives and other information which is of a confidential nature and which has been disclosed to the Customer by MB TECHNOLOGY or its agents and any other confidential information concerning MB TECHNOLOGY’s business or its products which the Customer may obtain as a result of or in connection with the Contract (“Confidential Information”).
11.2 The Customer will restrict disclosure of the Confidential Information to such of its employees, agents or subcontractors as need to know the same and will ensure that such employees, agents or subcontractors are subject to equivalent obligations of confidentiality as bind the Customer.
11.3 The Customer will not without the prior written consent of MB TECHNOLOGY publish or disclose the Confidential Information to any third party or make any use of the Confidential Information except to the extent necessary to implement the Contract. 12 IPR 12.1 The Customer will keep MB TECHNOLOGY indemnified in full against all liability, loss, damage, injury, claim, action, demand, expense or proceeding in respect of any infringement or alleged infringement of any IPR resulting from any use by MB TECHNOLOGY of the Customers Property or any compliance by MB TECHNOLOGY with the Customer’s instructions, whether express or implied.
12.2 Nothing in these Conditions will be construed as any representation or warranty by MB TECHNOLOGY that the design, manufacture, use or sale of the Works is not an infringement of any third party intellectual property rights and the Customer acknowledges that MB TECHNOLOGY only transfers such title as MB TECHNOLOGY has.
13.1 MB TECHNOLOGY may terminate the Contract immediately if:
(a) the Customer fails to pay the price on the due date;
(b) the Customer is in breach of any term of the Contract and (where remediable) has failed to remedy such breach within 28 days of receipt of written notice specifying the breach and requiring it to be remedied;
(c) there is a material change in the ownership or control of the Customer; or
(d) the Customer is wound up or becomes insolvent or has a receiver or administrative receiver appointed or suffers the appointment or the presentation of a petition for the appointment of an administration or any equivalent or analogous event occurs in any jurisdiction.
13.2 The termination of the Contract (howsoever arising) will be without prejudice to any rights and remedies which may have accrued to either party.
13.3 Any Conditions which expressly or impliedly have effect after termination or expiry will continue to be enforceable notwithstanding termination or expiry.
14.1 Where the Works are supplied for export from the United Kingdom the provisions of this clause 14 will (subject to any special terms agreed in writing between the parties) apply despite any other provision of these Conditions.
14.2 The Uniform Laws on International Sales Act 1967 will not apply.
14.3 Unless otherwise agreed in writing the currency will be pounds sterling. The Customer will where requested by MB TECHNOLOGY establish and maintain in favour of MB TECHNOLOGY an irrevocable and confirmed letter of credit in English with a UK clearing bank payable on drafts drawn at sight on presentation to the bank by MB TECHNOLOGY of a certified copy of MB TECHNOLOGY’s invoice. All bank charges and other expenses in relation to the letter of credit will be borne by the Customer.
14.4 Unless otherwise agreed in writing Works will be sold C.I.F (as defined in INCOTERMS 2000 Edition).
14.5 The Customer will be responsible for complying with any legislation or regulation governing the export of the Works from the United Kingdom and the importation of the Works into the country of destination and for payment of any relevant duties or taxes.
17.1 The Customer will not without the prior written consent of MB TECHNOLOGY assign or transfer the Contract or any part of it to any other person.
17.2 MB TECHNOLOGY may without the prior written consent of the Customer assign, transfer or subcontract the Contract or any part of it to any other person.
17.3 Each right or remedy of MB TECHNOLOGY under these Conditions is without prejudice to any other right or remedy which MB TECHNOLOGY may have under these Conditions or otherwise.
17.4 Any notice or other document to be served under the Contract must be in writing and may be delivered or sent by prepaid first class post or facsimile transmission. Any notice or document shall be deemed served, if delivered at the time of delivery, if posted, 48 hours after posting and if sent by facsimile transmission, at the time of transmission.
17.5 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, unenforceable or unreasonable it will, to the extent of such illegality, invalidity, voidness, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
17.6 Failure or delay by either party in exercising any right or remedy provided by the Contract or by law will not be construed as a waiver of such right or remedy or a waiver of any other right or remedy.
17.7 Any waiver by either party of any breach of, or any default under, any provision of the Contract by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
17.8 A person who is not a party to the Contract will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. This clause 17.8 does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
17.9 The Customer agrees that it will have no remedy in respect of any untrue statement innocently or negligently made by or on behalf of MB TECHNOLOGY prior to the Contract upon which the Customer relied in entering into the Contract whether such statement was made orally or in writing.
17.10 The Contract will be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
MB Technology Ltd, 2nd Floor, Lowry Mill, Lees Street, Swinton, Manchester, M27 6DB
(A) MB Technology wishes to offer the Customer access to its website in order for the Customer to view information and product listings and to allow the Customer to place product orders with MB Technology along with the use of a secure password.
(B) MB Technology and the Customer wish to be able to trade through the MB Technology website on the Terms and Conditions of this agreement.
These Terms and Conditions set out the basic rules and obligations required for users of MB Technology’s website. These Terms and Conditions are not intended to cover commercial and trading clauses, which are covered in the MB Technology Conditions of Sale.
“MB Technology.com” means the MB Technology Internet website, accessed solely through the address of www.mbtechnology.co.uk or www.MB Technologyweb.com
”MB Technology” means MB Technology (UK) Ltd, whose head office is at Unit 8-9, Park 17, Moss Lane, MANCHESTER, M45 8FJ.
”Customer” means the company, with whom MB Technology has an established trading account.
”User” means the person who is employed by the Customer and who accesses MB Technology.com on behalf of the Customer.
”Products” means the products listed for sale on MB Technology.com, which can be purchased by the Customer
”Conditions of Sale” means the standard MB Technology trading Conditions of Sale, which deal with the commercial and trading aspects between the Customer and MB Technology.
4.1 The Customer shall ensure that they meet all technical requirements of MB Technology.com access and that MB Technology shall not be liable for any losses which result due to technical incompatibilities or system errors.
4.2 The Customer shall take all reasonable steps to ensure that its authorised Users shall not pass any login user details to 3rd parties under any circumstances.
5.1 The User must at all times be acting on behalf of the Customer in any actions performed using MB Technology.com.
5.2 The User shall not pass any security details (such as, but not limited to usernames and passwords) to 3rd parties under any circumstances.
5.3 On ceasing to represent or be employed by the Customer, the User shall not use any supplied login information relating to the Customer for accessing MB Technology.com.
6.1 MB Technology.com login credentials comprise two elements:
6.1.1The User’s (unique within the Customer) Username (the registered email address of the User).
6.1.2 The User’s secret Password (any alpha numeric combination).
6.2 The use of the login information indicates proof that the Customer consents to orders and information placed by it or in its name.
6.3 MB Technology, the Customer and the User will use all reasonable endeavours to ensure that the login information, especially the Password, remains confidential.
7.1 The User may place orders for Products from MB Technology through MB Technology.com and all orders placed are subject to acceptance by MB Technology and subject to the MB Technology Standard Conditions of Sale. For the avoidance of any doubt, MB Technology shall be at liberty to refuse to accept any order placed by the Customer for any reason whatsoever.
7.2 No order shall become a purchase contract and therefore binding upon MB Technology until marked as confirmed within the “Order Status” facility of MB Technology.com.
7.3 Any order which is accepted by MB Technology and has therefore become a purchase contract shall be subject solely to the Standard Conditions of Sale of MB Technology to the exclusion of any other terms and conditions offered by the Customer, whether or not brought to the attention of MB Technology.
8.1 The marketed and official real-time price of the Products shall be as confirmed using the MB Technology.com “On-line Check“ facility. All other listed prices are shown on the understanding that they are a guideline only.
8.2 All prices are represented in Sterling Pounds or Euros and are exclusive of Value Added Tax or any other sales tax, which may be applicable.
8.3 MB Technology may change a Product’s price at any time and such changes shall apply to any purchase order placed with MB Technology after the time of change.
8.4 Payment for all Products shall be governed by the MB Technology Conditions of Sale or any subsequent Agreements entered into by the Customer and MB Technology. Order acceptance and final price confirmation will be as set out in clause 7.2 of these terms and conditions.
9.1 MB Technology will not be liable for any losses or damages resulting from MB Technology.com being unavailable. Whilst MB Technology endeavours to provide 24 hours a day access to MB Technology.com, MB Technology reserves the right to suspend MB Technology.com operation, temporarily or permanently and without notice.
9.2 Whilst MB Technology.com is intended to provide a 24 hours a day service, all orders must be placed before 15:00 to qualify for a next working day delivery of the Products.
All trademarks, copyright and any other intellectual property used on or in relation to the Products or MB Technology.com are the property of MB Technology or licensed for use to MB Technology by a third party and these terms and conditions do not confer upon the Customer any rights in or title to such intellectual property.
11.1 The Customer shall safeguard and (save as may be required by law) keep confidential all information entrusted to it by MB Technology which is not in the public domain and take all reasonable precautions to safeguard MB Technology’s confidential information.
11.2 Only those members of staff who need to be aware of confidential information in order for the Customer to fulfil its obligations under this Agreement shall be entitled access to the confidential information.
11.3 All confidential information passed to the Customer by MB Technology shall remain the exclusive property of MB Technology and the Customer undertakes to return such information at the request of MB Technology or, at the latest, upon termination or expiration of this Agreement.
11.4 The communication of any MB Technology.com login credentials to third parties is prohibited and will result in immediate withdrawal of all MB Technology services and the possible instigation of further legal proceedings.
13.1 This Agreement shall commence on the date hereof subject to termination in accordance with its terms.
13.2 Either party may terminate this Agreement by giving 7 days prior written notice to the other.
13.3 MB Technology may terminate this Agreement immediately upon the occurrence of any of the following events:
13.3.1 the Customer commits any continuing or material breach of any of the material provisions of this Agreement and, in the case of a breach capable of remedy fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
13.3.2 a receiver or manager is appointed over any of the property or assets of the Customer;
13.3.3 the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order;
13.3.4 the Customer goes into liquidation (except for the purposes of amalgamation or reconstruction); or
13.3.5 the Customer ceases or threatens to cease to carry on business.
13.4 Upon the termination or expiration of this Agreement all outstanding invoices must be paid immediately by the Customer.
13.5 The confidentiality obligations under clause 11 shall survive the termination of this Agreement.
Neither party shall be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing or any failure to perform any of its obligations in relation to the Products or otherwise under this Agreement if the delay or failure was beyond that party’s reasonable control.
The Customer shall fully and effectually indemnity and keep MB Technology indemnified against any loss, damage, costs or expenses (including legal costs) suffered or incurred by MB Technology as a result of or in connection with any breach by the Customer of any of its obligations under this Agreement.
16.1 This Agreement is personal to the Customer who may not assign this agreement without the express prior written agreement of MB Technology.
16.2 This Agreement contains the entire agreement between the parties with respect to its subject matter.
16.3 This Agreement shall be governed by and construed in all respects in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts.
16.4 Any notice required or authorised to be given by this Agreement may be given by hand or sent (by first class pre-paid post or facsimile transmission) to the other party at its address stated at the head of this Agreement. Such notice if posted shall be deemed to have been given on the 3rd day after the notice was posted and if sent by facsimile shall be deemed to have been duly sent on the date of transmission as evidence by the confirmation slip.
16.5 This Agreement shall only become enforceable once the Customer has indicated their acceptance of the terms of the Agreement by following the registration procedure.