1.
INTERPRETATION
In
these Conditions:-
"ADR
Procedure" means a procedure such as
mediation, conciliation or executive tribunal
or other dispute resolution technique recommended
from time to time by the Centre for Dispute Resolution.
"Affiliate"
in relation to the Buyer means any person
who controls alone or with others the Buyer, or
is controlled by the Buyer alone or with others,
or is under common control with the Buyer (for
which purpose "control" shall be construed
in accordance with section 416(2) or section 840
of the Income and Corporation Taxes Act 1988).
"Authorised
Representative" means an employee of
Millennia® who has been authorised to be a representative
of Millennia® by the board of Directors and who
is acting expressly in that capacity.
"Buyer"
means the person who accepts a Quotation
provided by Millennia® for the sale of the Goods
and or supply of Software or Services or whose
order for the GSS is accepted by Millennia®.
"Catalogue"
means any catalogue and other sales, price, marketing
and similar information made available by Millennia®
and relating to the GOSS supplied by Millennia®
to the Buyer in whatever form or medium, including
without limitation in the form of a book or other
paper or hard copy, in the form of a machine-readable
medium, by sound reproduction or by visual, electronic
or other display.
"Conditions"
means the standard terms and conditions of sale,
licence and supply set out in this document and
(unless the context otherwise requires) includes
any special terms and conditions agreed in Writing
between the Buyer and a Director of Millennia®.
"Contract"
means the contract for the purchase and sale of
the Goods and licence of Software and/or supply
of Services, such contract to include the acceptance
of Orders by telephone or in Writing.
"Despatch
Note" means Millennia®'s document that
accompanies the GOSS and which details the GOSS
ordered by the Buyer.
"Director"
means a director of Millennia® as registered at
Companies House.
"GOSS"
means any or all of Goods, Software and/or
Services as herein defined.
"Goods"
means the computer equipment or other goods (including
any installment of the Goods or any parts for
them) which Millennia® is to supply in accordance
with these Conditions whether under a Contract
to supply Goods or incidental to a Contract to
provide Services.
"Millennia®"
means Millennia Computer Services Ltd (registered
in UK under number 3481204).
"Millennia®
Procedures" means the procedures of Millennia®
for the time being in force regarding notification
of rejection, defects, collection or return of
the Goods, proof of warranty, supply of Services
and Software and related matters (details of which
are available on request).
"Order"
means any Written or oral request for Goods and/or
licence of Software and/or supply of Services
made by the Buyer to Millennia® and as evidenced
by Millennia®'s Despatch Note and/or Written acceptance.
"Quotation"
means any Written or oral offer to supply GOSS
to the Buyer.
"Services"
means any of installation, training, maintenance
and consultancy.
"Software"
means operating systems and application software
whether bespoke or off the shelf shrink wrap packages
which Millennia® is to supply in accordance with
these Conditions whether under a Contract to supply
Goods or license Software or incidental to a Contract
to provide Services.
"Writing"
"Written" includes cable, facsimile
or electronic transmission (including e-mail)
and comparable means of communication.
1.2
Any reference in these Conditions to any provision
of a statute shall be construed as a reference
to that provision as amended, re-enacted or extended
at the relevant time.
1.3
The headings in these Conditions are for convenience
only and shall not affect their interpretation.
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2.
BASIS OF THE
CONTRACT
2.1
Millennia® shall sell and the Buyer shall purchase
the Goods and or licence of Software or supply
of Services in accordance with any Quotation of
Millennia® which is accepted by the Buyer, or any
Order of the Buyer which is accepted by Millennia®,
subject in either case to these Conditions, which
shall govern the Contract to the exclusion of
any other terms and conditions subject to which
any such Quotation is accepted or purported to
be accepted, or any such Order is made or purported
to be made by the Buyer.
2.2
No variation to these Conditions shall be binding
unless agreed in Writing by a Director of Millennia®.
2.3
Millennia®'s employees or agents are not authorised
to make any representations concerning the GOSS
unless confirmed by an Authorised Representative
of Millennia® in Writing. In entering into the
Contract the Buyer acknowledges that it does not
rely on and waives any claim for breach of any
such representations which are not so confirmed.
Millennia®'s liability for such representations
is governed by this Contract.
2.4
Any advice or recommendation given by Millennia®
or its employees or agents to the Buyer or its
employees or agents as to the storage, application
or use of the GOSS which is not confirmed in Writing
by an Authorised Representative is followed or
acted upon entirely at the Buyer's own risk, and
accordingly Millennia® shall not be liable for
any such advice or recommendation which is not
so confirmed (and shall be liable for such advice
or recommendation to such extent as is set out
in this Contract).
2.5
Any typographical, clerical or other error or
omission in any sales literature, Quotation, price
list, acceptance of offer, Despatch Note, invoice
or other document or information (whether written
or oral) issued by Millennia® shall be subject
to correction without any liability on the part
of Millennia®.
2.6
The sale, resale, delivery, licensing, supply
and servicing of the GOSS may be subject to US,
UK and other laws and regulations and shall be
subject to the obtaining of any necessary export
control and other licences and consents the granting
of which may be necessary in any relevant jurisdictions.
Millennia® and the Buyer shall co-operate in using
their respective reasonable endeavours to obtain
any such consents, at the cost of the Buyer.
2.7
To the extent that the Goods include any media
containing material the intellectual property
rights to which are owned by or licensed to any
third party, any licence supplied by the sale
of those Goods, supply of Software or Services
shall be restricted to the licence given by the
third party and subject to the Buyer entering
into such licences and other agreements as the
third party may require and the Buyer shall comply
with the terms thereof.
2.8
The Buyer shall comply, and shall procure that
any person to whom it may supply the GOSS shall
comply and shall similarly require compliance,
with all the requirements of any such licence
or other agreement or consent as is referred to
in Conditions 2.6 and 2.7 above
and the Buyer shall indemnify Millennia® against
the consequences of any breach of the terms of
any such licence, agreement or consent.
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3.
ORDERS
AND SPECIFICATIONS
3.1
No Order submitted by the Buyer shall be deemed
to be accepted by Millennia® unless or until confirmed
by an Authorised Representative or until Millennia®
has commenced fulfilment of such Order, whichever
is the earlier.
3.2
The Despatch Note shall be conclusive as to the
quantity, quality and description of any specification
for any GOSS ordered by the Buyer except to the
extent that, within 7 days after receipt of the
Despatch Note, the Buyer by notice in Writing
to Millennia® disputes its accuracy and gives details
of the alleged inaccuracy. The Buyer must keep
each Despatch Note or a copy thereof for a minimum
of six years.
3.3
Millennia® reserves the right to make any changes
in the specification of the GOSS which are required
to conform with any applicable safety or other
statutory requirements or, where the GOSS are
to be supplied to Millennia®'s specification, which
do not materially adversely affect their quality
or performance.
3.4
If the Goods are to be manufactured or any process
is to be applied to the Goods by Millennia® in
accordance with a specification submitted by the
Buyer, the Buyer shall indemnify Millennia® against
all loss, damages, costs and expenses awarded
against or incurred by Millennia® in connection
with or paid or agreed to be paid by Millennia®
in settlement of any claim for infringement of
any patent, copyright, design, trade mark or other
industrial or intellectual property rights of
any other person which results from Millennia®'s
use of the Buyer's specification.
3.5
No Order which has been accepted by Millennia®
may be cancelled by the Buyer except with the
agreement in Writing of Millennia® and on terms
that the Buyer shall indemnify Millennia® in full
against all loss (including loss of profit), costs
(including costs of all labour and materials used),
damages, charges and expenses incurred by Millennia®
as a result of cancellation.
3.6
All specifications and other details and information
concerning the GOSS contained in the Catalogues
are based on information provided by the relevant
manufacturers and sub contractors at the time
of preparation of the relevant catalogues and
are liable to be changed by the manufacturers
or sub contractors without notice. Accordingly,
GOSS may be supplied, the specifications and other
details and information concerning which are those
of the manufacturer or sub contractors applying
at the time of supply.
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4.
PRICE
4.1
Subject to clause 4.2
4.1.1
the price of the GOSS shall be Millennia®'s quoted
price (whether the Quotation is provided orally
or in Writing or is the price specified via Millennia®'s
on-line ordering service at the time of placing
the Order) or, where no price has been quoted
(or a quoted price is no longer valid), the price
listed in Millennia®'s published price list current
at the date of acceptance of the Order;
4.1.2
all prices quoted are valid for 15 days only,
after which time (unless the Contract has been
entered into before then) they may be altered
by Millennia® without giving notice to the Buyer.
4.2
Millennia® reserves the right, by giving notice
to the Buyer at any time before delivery to increase
the price of the GOSS to reflect:
4.2.1
any increase in the cost to Millennia® which is
due to any factor beyond the control of Millennia®
(such as, without limitation, any foreign exchange
fluctuation, currency regulation, alteration of
duties or taxes, significant increase in the costs
of labour, materials or other costs of manufacture);
or
4.2.2
any change in delivery dates; or
4.2.3
any change to the quantities or specifications
for the GOSS which is requested by the Buyer;
or
4.2.4
any delay caused by any instruction of the Buyer
or any failure of the Buyer to give Millennia®
adequate information or instructions.
4.3
Except as otherwise stated under the terms
of any Quotation or in any price list of Millennia®
and unless otherwise agreed in Writing between
the Buyer and Millennia®, all prices for GOSS are
given by Millennia® on an ex works basis, and where
Millennia® agrees to deliver the GOSS otherwise
than at Millennia®'s premises, the Buyer shall
be liable to pay all Millennia®'s charges including,
but not limited to, transport, packaging and insurance.
4.4
The price is exclusive of any applicable value
added tax, which the Buyer shall be additionally
liable to pay to Millennia®.
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5.
TERMS OF PAYMENT
5.1
Subject to any special terms agreed in Writing
between the Buyer and Millennia®, Millennia® shall
be entitled to invoice the Buyer for the price
of the GOSS on or at any time after delivery of
the GOSS, unless the Goods or Software are to
be collected by the Buyer and the Buyer wrongfully
fails to take delivery of the Goods or Software
or the Buyer fails to make adequate provision
to accept the supply of Services, in which event
Millennia® shall be entitled to invoice the Buyer
for the price at any time after Millennia® has
notified the Buyer that the Goods or Software
are ready for collection or, as the case may be,
Millennia® has tendered delivery of the Goods or
Software or the supply of Services.
5.2
The Buyer shall pay the price of the GOSS within
thirty days of the date of Millennia®'s invoice,
notwithstanding that delivery or supply may not
have taken place and the property in the Goods
has not passed to the Buyer. The time of payment
of the price shall be of the essence of the Contract.
Receipts for payment will be issued only upon
request. Millennia® may at any time at its discretion
by notice in Writing demand and the Buyer shall
forthwith make early payment of the price if Millennia®
certifies that it has reasonable grounds to doubt
the continued creditworthiness of the Buyer.
5.3
Payment by cheque or other negotiable
instrument is ineffective until such instrument
is honoured and Millennia®'s bank account is irrevocably
credited with the amount due.
5.4
If the Buyer or any Affiliate of the Buyer fails
to make any payment on the due date or breaches
any other provision of the Contract or any provision
of any other contract with Millennia® or if Condition
10.1 applies, then the Buyer shall be deemed to
have repudiated each Contract and Millennia® shall
be entitled to:
5.4.1
exercise its rights under Condition 7.6
and/or Condition 10.2 below;
5.4.2
appropriate any payment made by the Buyer to such
of the GOSS (or the GOSS supplied under any other
Contract between the Buyer and Millennia® ) as
Millennia® may think fit (notwithstanding any purported
appropriation by the Buyer);
5.4.3
charge the Buyer interest (both before and after
any judgement ) on the amount unpaid, at the rate
of 12 per cent per annum above Bank of England
base rate from time to time until payment in
full is made (a part of a month being treated
as a full month for the purpose of calculating
interest); and
5.4.4
charge the Buyer with any costs incurred by Millennia®
in the course of collecting outstanding monies
due to Millennia® from the Buyer.
5.5
The Buyer shall make all payments in the currency
in which the price is denominated and without
any set-off, deduction or withholding. Without
limitation, the Buyer shall not be entitled to
withhold payment by reason of any breach of warranty
or other obligation of Millennia®. In such circumstances
the Buyer's sole remedy shall be the provisions
set out in condition 8.
5.6
Should payment be made with order Millennia®
reserves the right to offer the Buyer a discount
on the standard quoted price for the GOSS, not
exceeding 10% of the quoted price. This offer
is made at the discretion of the Directors and
may be withdrawn at any time.
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6.
DELIVERY
6.1
Delivery and/or supply whether by means of installation
or not of the Goods and/or Software shall be made
by Millennia® delivering and/or supplying the Goods
and/or Software to the Buyer's premises or, if
some other place for delivery and/or supply is
agreed by Millennia®, by Millennia® delivering and/or
supplying the Goods and/or Software to that place
or by the Buyer collecting the Goods and/or Software
at Millennia®'s premises at any time after Millennia®
has notified the Buyer that the Goods and/or Software
are ready for collection. If it is agreed that
the Goods and/or Software are to be sent by a
third party carrier to the Buyer, they may be
sent by such method of carriage as Millennia® may
choose and, if Millennia® arranges for the carriage
and/or insurance of the Goods and/or Software
in transit, it will do so as agent for the Buyer
so that the carrier is the Buyer's and not Millennia®'s
agent and the Buyer will reimburse the cost accordingly,
but section 32(2) and (3) of the Sale of Goods
Act 1979 shall not apply.
6.2
Supply of Services shall be made by Millennia®
carrying out the Services as specified in the
Order at a location to be agreed between the Buyer
and Seller as the most practical venue taking
into account the nature of the Services to be
provided.
6.3
Any dates quoted for delivery or supply of the
GOSS are approximate only and Millennia® shall
not be liable for any delay in the delivery and/or
supply of the GOSS howsoever caused. Subject to
Condition 6.4, time for delivery shall not be
of the essence unless previously agreed by an
Authorised Representative in Writing. The Goods
and/or Software may be delivered by Millennia®
in advance of the quoted delivery date if authorised
by an Authorised Representative in Writing and
upon giving reasonable notice to the Buyer.
6.4
If the GOSS have not been delivered or supplied
within 21 days after the anticipated date for
delivery quoted by Millennia® then:
6.4.1
the Buyer may, by notice in Writing to Millennia®
referring to this Condition 6.4 , require Millennia®
to deliver the Goods and/or Software or supply
the Services within 14 days after service of the
notice; and
6.4.2
if Millennia® fails to do so, then the Buyer as
its only remedy may, by further notice in Writing
to Millennia®, cancel the Contract for the GOSS.
6.5
Where the GOSS are to be delivered in installments,
each delivery shall constitute a separate Contract
and failure by Millennia® to deliver any one or
more of the installments in accordance with these
Conditions or any claim by the Buyer in respect
of any one or more installments shall not entitle
the Buyer to treat the Contract as a whole as
repudiated.
6.6
The GOSS may be delivered by installments. The
Buyer may not reject any GOSS by reason that they
are, or any installments is, less than the full
quantity contracted for save where, in relation
to Goods, the shortfall is greater than 10%.
6.7
If the Buyer fails to take delivery of the Goods
and/or Software or fails to give Millennia® adequate
instructions at the time stated for delivery or
supply (otherwise than by reason of any cause
beyond the Buyer's reasonable control or by reason
of Millennia®'s fault) then, without prejudice
to any other right or remedy available to Millennia®,
Millennia® may:
6.7.1
store the Goods and/or Software until actual delivery
and charge the Buyer for the reasonable costs
(including insurance) of storage; or
6.7.2
after seven days, sell the Goods and/or Software
at the best price readily obtainable and (after
deducting all reasonable storage and selling expenses)
account to the Buyer for the excess over the price
under the Contract or charge the Buyer for any
shortfall below the price under the Contract.
6.8
If the Goods and/or Software are to be delivered
at Millennia®'s premises and the Buyer so requests
in Writing, Millennia® shall afford the Buyer a
reasonable opportunity to inspect and test the
Goods and/or Software as to conformity with the
Contract when the Goods and/or Software are tendered
for delivery and then and there to reject any
non-conforming items; and, if the Buyer so inspects
or tests them and does not then reject them within
7 days, then it may not reject them later.
6.9
If the Goods and/or Software are to be delivered
elsewhere than at Millennia®'s premises or are
to be delivered at Millennia®'s premises to a carrier
for transmission to the Buyer without the Buyer
having inspected and tested them, then the Buyer
may only reject them for failure to conform with
the Contract if it does so by notice in Writing
to Millennia® in accordance with Millennia® Procedures
within 7 days after the date of the arrival (in
which case the Buyer shall at Millennia®'s option
deliver the Goods and/or Software to, or allow
them to be collected by, Millennia® or its agents
and meanwhile the Buyer shall retain the Goods
and/or Software as bailee for Millennia® and store,
protect and insure them accordingly).
6.10
The Buyer may not reject the Goods and/or Software
by reason of any matter which occurred after the
passing of risk to the Buyer.
6.11
The Buyer shall accept and pay for all Goods and/or
Software which it may no longer reject but this
is without prejudice to its warranty rights under
Condition 8. Nothing in these Conditions shall
affect the statutory rights of a consumer.
6.12
Any delivery receipt in respect of the GOSS shall
be conclusive if it is signed by a person who
is or appears to be an employee, representative
or agent of the Buyer, whether or not the Buyer
alleges that such person has no authority to sign
delivery receipts, provided that Millennia® has
acted reasonably.
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7.
RISK AND PROPERTY
7.1
Risk of damage to or loss of the Goods and/or
Software shall pass to the Buyer :
7.1.1
in the case of Goods and/or Software to be delivered
at Millennia®'s premises, at the earlier of collection
and the expiry of a period of seven days after
Millennia® has notified the Buyer that the goods
are available for collection and has issued an
invoice for the price; or
7.1.2
in the case of Goods and/or Software to be delivered
by Millennia® otherwise than at Millennia®'s premises
at the time of delivery or, if the Buyer wrongfully
fails to take delivery of the Goods and/or Software,
the time when Millennia® has tendered delivery
of the Goods and/or Software; or
7.1.3
in the case of Goods and/or Software to be sent
to the Buyer by a carrier as agent for the Buyer,
at the time of delivery to the carrier.
7.2
Notwithstanding delivery of and the passing of
risk in the Goods or any document representing
them and notwithstanding any other provision of
these Conditions, Millennia® reserves the right
of disposal of each item of the Goods, and the
property therein shall not pass to the Buyer,
until Millennia® has received in cash or cleared
funds payment in full for such item and all other
GOSS supplied by Millennia® to the Buyer and Affiliates
of the Buyer and default interest and all other
monies on any account whatsoever owed by the Buyer
and Affiliates of the Buyer to Millennia®.
7.3
Until such time as the property in the Goods passes
to the Buyer, the Buyer shall hold the Goods as
fiduciary agent and bailee for Millennia®, shall
retain possession of them in good order and condition,
shall keep them separate from goods of the Buyer
and third parties and properly stored and protected
and identified as Millennia®'s property and shall
(in the absence of proof to the contrary) be deemed
to deal with the Goods and other goods of the
same type supplied by Millennia® in the order in
which they are delivered.
7.4
The Buyer shall not be entitled to pledge, charge,
encumber or otherwise dispose of the GOSS or any
interest therein or purport to do so until title
passes.
7.5
If, before paying for them, the Buyer on-sells
any of the Goods and/or Software, the Buyer shall
account to Millennia® for the proceeds of on-sale
to the extent that Millennia® has not received
payment of the price for such Goods and/or Software
and pending payment shall hold such proceeds on
trust for Millennia® and maintain them in a separate
bank account.
7.6
If Condition 10.1 applies, then Millennia®
shall be entitled by notice in Writing to revoke
its consent to the Buyer retaining possession
of, and any express or implied authority to sell,
use or consume, any Goods the property in which
has not passed to the Buyer and require the Buyer
to deliver them up to Millennia® (and the Buyer
shall forthwith do so, failing which Millennia®
may repossess, and in order to do so may enter
the premises of the Buyer or any third party where
the Goods are or are thought to be without liability
for any resulting damage, and against the consequences
of which the Buyer shall indemnify Millennia®)
and re-sell the Goods or transfer the property
in them to the Buyer.
7.7
The Buyer shall keep the Goods fully insured in
their full replacement value against all risks
prudently insured against between risk passing
and property passing and shall on demand produce
evidence thereof to Millennia®. Until the full
price has been paid the Buyer shall hold on trust
for Millennia® the policy and proceeds of insurance
to the extent of the unpaid price.
7.8
No title shall pass in any Software provided to
the Buyer.
7.9
All information which the Buyer shall supply to
Millennia® to enable Millennia® to supply the Services
under the Contract shall be supplied at the expense
of the Buyer.
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8.
WARRANTIES
AND LIABILITY
8.1.1
Subject to the provisions set out below, Millennia®
warrants that if Millennia® (who shall act reasonably)
is satisfied that (a) any item of the Goods is,
and was at the time of delivery, defective as
to material or workmanship, or as to a failure
to meet specification, and (b) within a reasonable
time after discovery of the defect and in any
event within the relevant warranty period (which
shall be twelve months from delivery unless otherwise
agreed in Writing), the Buyer has followed the
Millennia® Procedures so far as applicable in relation
to the defect, then Millennia® shall repair or
replace that item (or the part in question) free
of charge, subject to availability of spares or
parts, or credit the price of the Goods or an
appropriate part of it. This warranty shall not
be assignable save with the prior consent of Millennia®
in Writing.
8.1.2
Millennia® provides that the warranty on all Software
supplied under these Conditions shall be limited
to the warranty provided by the supplier or manufacturer,
details of which will be supplied to the Buyer
upon sale via the Millennia® Procedures but any
failure on the part of Millennia® to comply with
the obligation to so inform shall not affect the
provision of the limited warranty contained herein.
8.1.3
Millennia® warrants that all Services will be provided
using reasonable skill and care and, as far as
possible, in accordance with the Order.
8.2
The above warranties are given by Millennia® subject
to the following conditions :
8.2.1
Millennia® shall be under no liability in respect
of any defect in the GOSS supplied arising from
any drawing, design or specification supplied
by the Buyer;
8.2.2
Millennia® shall be under no liability in respect
of any of the following after the passing of risk
in the Goods and/or Software to the Buyer: fair
wear and tear, wilful or accidental damage, negligence,
alteration or repair of the Goods and/or Software
without Millennia®'s approval in Writing, failure
to follow the manufacturer's or Millennia®'s instructions
(whether oral or in Writing) or, without limiting
the foregoing, the use or handling of the Goods
and/or Software without a high standard of care
(for which purpose the Buyer acknowledges that
the Goods must not be moved while in operation
or subjected to any physical or electromagnetic
or electrostatic shock and that they should be
used, handled and maintained in accordance with
any applicable instructions of Millennia® or the
manufacturer supplied to the Buyer and the Buyer
shall treat the Goods accordingly and require
its customers to do so);
8.2.3
Millennia® shall be under no liability under the
above warranties (or any other warranty, Condition
or guarantee) if the total price for the GOSS
has not been paid by the due date for payment;
8.2.4
if and to the extent that Millennia® has the benefit
of any warranty or guarantee recourse against
the manufacturer or supplier which extends beyond
the scope of the warranty set out in Condition
8.1 above, Millennia® may, at its discretion and
subject to the Buyer bearing any associated costs
and expenses, pursue recourse and make the benefit
available (but not by way of assignment) to the
Buyer;
8.2.5
the Buyer shall indemnify Millennia® against all
liabilities, losses, damages, costs and expenses
incurred by Millennia® and arising directly or
indirectly out of or in connection with any invalid
warranty claim made by the Buyer under Condition
8.1;
8.2.6
Millennia® shall not be liable for any loss of,
damage to or disclosure of data either contained
in Goods and/or Software returned to Millennia®
for any reason whatsoever or arising from the
supply of Services by Millennia® (and it is the
Buyer's responsibility to take all adequate back-up
precautions to include, but not limited to, the
taking of back-up copies of any such data and
the removal of confidential data);
8.2.7
any replacement item need not be new but shall
be of a condition which is comparable to that
of the original and may be the same as, or similar
to, or better than, the original;
8.2.8
the warranty shall apply to the repaired item
or replacement item for a period of two months
or the balance of the warranty period applicable
to the original item whichever is the longer;
8.2.9
as between Millennia® and the Buyer the results
of independent testing by the manufacturer or
the manufacturer's agent shall be conclusive as
to the cause of any failure and Condition 8.2.5
shall apply accordingly.
8.3
The Buyer recognises that the Goods and/or Software
require careful handling and storage and warrants
that only competent employees or agents shall
be used to handle the Goods and/or Software and
that they shall do so in accordance with the instructions
referred to in Condition 8.2.2 above. Should the
Buyer be in breach of this Condition then Millennia®
shall be under no liability under the above warranties
set out in Condition 8.1. (or any other warranty
conditions or guarantee).
8.4
The Buyer shall indemnify Millennia® against
any liability which the latter may incur, whether
by court proceedings or by a bona fide out of
court settlement as a result of a claim against
Millennia® under Part 1 of the Consumer Protection
Act 1987 in respect of an alleged defect in the
Goods and/or Software. The Buyer shall ensure
that all warning labels and instructions applicable
to Goods and/or Software are not tampered with
and/or removed before such Goods and/or Software
are sold on or otherwise transferred to any third
party and shall record all serial numbers of the
Goods and/or Software and ensure that proper records
are kept to enable the Goods and/or Software to
be traced to any such third party. The Buyer shall
allow Millennia® reasonable access to these records
and shall indemnify Millennia® against all costs,
liabilities and expenses incurred by Millennia®
because of any Buyer's breach of this Condition
8.4.
8.5
Subject as expressly provided in these Conditions
and except where the Goods and/or Software are
sold to the Buyer as a person dealing as a consumer
(within the meaning of the Unfair Contract Terms
Act 1977), all warranties, conditions or other
terms implied by statute or common law as to condition,
fitness for purpose, correspondence with the description
or sample or otherwise are excluded to the fullest
extent permitted by law. It is acknowledged by
the Buyer that the limited liability accepted
by Millennia® is appropriate in view of the Buyer's
own expertise in dealing with the GOSS and that
such limitations and exclusions of liability are
reasonable.
8.6
Nothing in these Conditions will affect any statutory
rights of a consumer. Nothing in these Conditions
shall exclude or restrict (a) except in the case
of an international supply Contract within section
26(3) and (4) of the Unfair Contract Terms Act
1977, liability of Millennia® for death or personal
injury, or for the cost of repair or replacement
up to £100,000 in respect of physical damage to
the Buyer's property, resulting from negligence
or (b) liability of Millennia® for breach of the
obligations arising from section 12 of the Sale
of Goods Act 1979 or (c) liability which by law
cannot be excluded or restricted.
8.7
Millennia® shall not be liable to the
Buyer by reason of any representation, or any
implied warranty, condition or other term, or
any duty at common law, or under the express terms
of the Contract, for any consequential or economic
loss or damage (whether for loss of profit or
otherwise ), costs, expenses or other claims for
compensation whatsoever (and whether by the negligence
of Millennia®, its employees or agents or otherwise)
which arise out of or in connection with the supply
of the GOSS or the use or resale by the Buyer
of the Goods and/or Software, except as expressly
provided in these Conditions.
8.8
Millennia® shall not be liable to the Buyer or
be deemed to be in breach of the Contract by reason
of any delay in performing, or any failure to
perform, any of Millennia®'s obligations in relation
to the GOSS, if the delay or failure was due to
any cause beyond Millennia®'s reasonable control.
Without prejudice to the generality of the foregoing,
the following shall be regarded as causes beyond
Millennia®'s reasonable control:
8.8.1
act of God, explosion, flood, tempest, fire or
accident;
8.8.2
war or threat of war, sabotage, insurrection,
civil disturbance or requisition ;
8.8.3
acts, restrictions, regulations, bye-laws, prohibitions
or measures of any kind on the part of any governmental,
parliamentary or local authority (including without
limitation any matters of the nature referred
to in Condition 2.6 above);
8.8.4
import or export regulations or embargoes ;
8.8.5
strikes lock-outs or other industrial actions
or trade disputes (whether involving employees
of Millennia® or of a third party);
8.8.6
difficulties in obtaining raw materials, labour,
fuel, parts or machinery;
8.8.7
power failure or break-down in machinery.
8.9
Should for any reason any court or judicial authority
deem the exclusions and limitations contained
in these Conditions to be unreasonable or unenforceable
then the maximum liability of Millennia® (in tort
or contract) shall be the amount paid to and retained
by Millennia® under the Contract.
8.10
Without limiting the generality of the foregoing,
in submitting each Order the Buyer shall be deemed
to represent and warrant that it is in the business
of dealing in, or manufacturing, assembling or
configuring computer hardware, software or related
products and that it has sufficient expertise
and qualifications to form its own assessment
of the qualities and characteristics of the GOSS
(including without limitation their merchantability,
fitness for required purpose, compatibility with
other products, compliance with standards and
networkability, as appropriate); and
8.11
Before using or disposing of them or returning
them to Millennia®, the Buyer shall scan and otherwise
check the Goods and/or Software and any back-up
or replacement goods supplied by Millennia® and
any associated software, media and data for computer
viruses and other inherent defects and shall require
its customers to do so. Millennia® shall not be
liable for, and the Buyer shall indemnify Millennia®
against, any liability, losses, damages, costs
and expenses arising directly or indirectly out
of or in connection with the Buyer's failure to
scan or otherwise check the Goods and/or Software
(or to do so adequately) for the presence of any
such virus or defect.
8.12
Should Millennia® provide any information relating
to the compliance of any GOSS with any applicable
millennium standard or otherwise Millennia® does
so only on the basis that it is passing on such
information in good faith from the supplier or
manufacturer of the GOSS to the Buyer and Millennia®
makes no guarantee or warranty relating to the
accuracy of any such statement, and excludes liability
relating thereto. The Buyer further expressly
acknowledges that the compliance of any GOSS with
any applicable standard may be dependent on the
interoperation of such GOSS with other equipment,
firmware or software and confirms that it has
established such interoperability or compliance
of an entire system with such standards prior
to making such Order.
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9.
INDEMNITY
9.1
If any claim is made against the Buyer that the
GOSS infringe or that their use or resale infringes
the patent, copyright, design, trade mark or other
industrial or intellectual property rights of
any other person, then unless the claim arises
from the use of any drawing, design, information
or specification supplied by the Buyer, Millennia®
shall indemnify the Buyer against all loss, damages,
costs and expenses awarded against or incurred
by the Buyer in connection with the claim, or
paid or agreed to be paid by the Buyer in settlement
of the claim, provided that:
9.1.1
Millennia® is given full control of any proceedings
or negotiations in connection with any such claim,
9.1.2
the Buyer shall give Millennia® all reasonable
assistance for the purposes of any such proceedings
or negotiations;
9.1.3
except pursuant to a non-consensual, non appealable
final award, the Buyer shall not pay or accept
any such claim, or compromise any such proceedings
without the consent of Millennia® in Writing given
by a Director of Millennia® (which shall not be
unreasonably withheld);
9.1.4
the Buyer shall do nothing which would or might
vitiate any insurance cover which the Buyer may
have (or which the Buyer knows or ought reasonably
to know would or might vitiate any insurance cover
which Millennia® may have) in relation to such
infringement, and this indemnity shall not apply
to the extent that the Buyer recovers any sums
under any such cover (which the Buyer shall use
its best endeavours to do);
9.1.5
Millennia® shall be entitled to the benefit of,
and the Buyer shall accordingly account to Millennia®
for, all damages and costs (if any) awarded in
favour of the Buyer which are payable by or agreed
with the consent of the Buyer (which consent shall
not be unreasonably withheld) to be paid by any
other party in respect of any such claim; and
9.1.6
without prejudice to any duty of the Buyer at
common law, Millennia® shall be entitled to require
the Buyer to take such steps as Millennia® may
reasonably require to mitigate or reduce any such
loss, damages, costs or expenses for which Millennia®
is liable to indemnify the Buyer under this Condition.
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10.
EVENTS OF DEFAULT
10.1
This Condition applies if:
10.1.1
The Buyer makes any voluntary arrangements with
its creditors or becomes subject to an administration
order or (being an individual or firm) becomes
bankrupt or (being a company or partnership )
goes into any form of liquidation, winding up,
dissolution or insolvency procedure (otherwise
than for the purposes of amalgamation or reconstruction)
or anything analogous to the foregoing occurs
in relation to the Buyer in any jurisdiction;
or
10.1.2
an encumbrancer takes possession, or a receiver
or similar officer is appointed of any of the
property or assets of the Buyer, or
10.1.3
the Buyer ceases, or threatens to cease, to carry
on business; or
10.1.4
Millennia® reasonably apprehends that any of the
events mentioned above is about to occur in relation
to the Buyer and notifies the Buyer accordingly;
or
10.1.5
Millennia® becomes entitled to exercise any of
its rights under the Condition 5.4 above.
10.2
If this Condition applies, then, without prejudice
to any other right or remedy available to Millennia®,
Millennia® shall be entitled by notice in Writing
to the Buyer to do all or any of the following:
(a) terminate or cancel the Contract;
(b) suspend any further deliveries or
provision of Services under the Contract;
(c) suspend any warranty or other support
for the GOSS or any other goods supplied by Millennia®
to the Buyer, whether or not they have been paid
for; (d) declare (whereupon there shall
forthwith become) immediately due and payable
the price for the GOSS so far as not already paid
(whether or not the GOSS have been delivered or
supplied and notwithstanding any previous agreement
or arrangement to the contrary); (e) set
off any amount owed by Millennia® to the Buyer
against any amount owed by the Buyer to Millennia®
on any account whatsoever; and (f) exercise
its rights under Condition 5.4 and/or
Condition 7.6.
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11.
EXPORT TERMS
11.1
In these Conditions "Incoterms" means
the international rules for the interpretation
of trade terms of the International Chamber of
Commerce as in force at the date when the Contract
is made. Unless the context otherwise requires,
any term or expression which is defined in or
given a particular meaning by the provisions of
Incoterms shall have the same meanings in these
Conditions, but if there is any conflict between
the provisions of Incoterms and these Conditions,
the latter shall prevail.
11.2
The Buyer shall be responsible for complying with
any legislation or regulations governing the importation
of the Goods into and/or licensing of Software
and/or provision of Services in the country of
destination and for the payment of any duties
thereon.
11.3
Unless otherwise agreed in Writing between the
Buyer and Millennia®, the Goods are to be delivered
F.O.B. the air or seaport of shipment and Millennia®
shall be under no obligation to give notice under
section 32(3) of the Sale of Goods Act 1979.
11.4
The Buyer shall be responsible for arranging
for testing and inspection of the Goods and/or
Software at Millennia®'s premises before shipment.
Millennia® shall have no liability for any claim
in respect of any defect in the Goods and/or Software
which would be apparent on inspection and which
is made after shipment, or in respect of any damage
during transit.
11.5
Payment of the price of the GOSS and all other
amounts payable by the Buyer to Millennia® under
the Contract shall be made in cash on or before
delivery.
11.6
Millennia® will charge and the Buyer will pay on
demand value added tax in relation to the GOSS
unless evidence satisfactory to HM Customs &
Excise to establish that the supply of the GOSS
is zero rated for the purpose of United Kingdom
value added tax is provided to Millennia®.
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12.
CONFIDENTIAL
INFORMATION
12.1
All information which comes to the knowledge
of the parties concerning the other party's respective
operations including, but not limited to, price
specific information supplied by Millennia® to
the Buyer, shall be treated as confidential and
not disclosed to any third party without the prior
written consent of an authorised representative
of the party to whom the information relates save
where the information:
12.1.1
is in the public domain prior to the receipt of
such information by the disclosing party;
12.1.2
is or becomes publicly available on a non-confidential
basis through no fault of the disclosing party
12.1.3
is received in good faith from a third
party who, on reasonable enquiry by the disclosing
party, claims to have no obligations of confidence
in respect of such information and who imposes
no obligations of confidence upon the disclosing
party.
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13.
GENERAL
13.1
Any notice required or permitted to be given by
either party to the other under these Conditions
shall be in Writing addressed to that other party
at its registered office or principal place of
business or such other address as may at the relevant
time have been notified pursuant to this provision
to the party giving the notice. Any signature
given by way of electronic signature shall be
deemed by the receiving party to have been given
by the signatory at the time represented and to
be binding upon that party.
13.2
Millennia®'s strict rights shall not be prejudiced
or restricted by any concession, indulgence or
forbearance extended to the Buyer. No waiver by
Millennia® of any breach of any provision of any
Contract by the Buyer shall be considered as a
waiver of any other or subsequent breach of the
same or any other provision of that or any other
Contract. Millennia®'s rights under these Conditions
are in addition to any other rights which Millennia®
may have under the general law or otherwise. If
the Buyer comprises two or more persons, their
obligations are joint and several.
13.3
If any provision of these Conditions is held by
any competent authority to be invalid or unenforceable
in whole or in part the validity of the other
provisions of these Conditions and the remainder
of the provision in question shall not be affected
thereby.
13.4
The parties will attempt in good faith to resolve
any dispute or claim (other than one based on
non-payment ) arising out of or relating to these
Conditions or any Contract promptly within 14
days by negotiations between senior executives
of the parties who have authority to settle the
dispute. If the matter is not resolved through
negotiation the parties will attempt in good faith
to resolve the dispute through an ADR Procedure.
If the parties need advice in appointing a suitable
neutral to assist in the settlement and/or in
formulating the appropriate procedure they will
seek assistance from the Centre for Dispute Resolution
(CEDR), Princes House, 95 Gresham Street, London
EC2V 7NA. Unless extended by the agreement of
the parties if the matter has not been resolved
by an ADR Procedure within 28 days of the initiation
of such procedure, or if either party will not
participate in an ADR Procedure, the parties shall
litigate or arbitrate the dispute.
13.5
These Conditions and all Contracts shall be governed
by and construed in accordance with English
law. Neither the Uniform Law on International
Sales nor the Convention on Contracts for the
International Sale of Goods shall apply to any
Contract.
13.6
If the Buyer is domiciled in one of the member
states of the European Community, then any dispute
which has not been the subject of a conclusive
ADR procedure for whatever reason shall be litigated
and for Millennia®'s exclusive benefit the Buyer
irrevocably submits to the jurisdiction of the
English courts and agrees (without limiting Millennia®'s
rights to bring proceedings in any other courts
of competent jurisdiction, whether concurrently
or not) that the English courts shall have jurisdiction
to settle the dispute or claim and that their
decisions will be binding, conclusive and enforceable
by the courts of other jurisdiction.
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