1.1. “Customer” means the third party identified as the customer in this agreement to whom BNR may agree to supply products with these terms and conditions.
1.2. “BNR” means BNR Computer Services Ltd of 6 Badhan Court, Castle Street, Hadley, Telford TF1 5QX.
1.3. “Products” Means goods including but not limited to computer hardware and software items to be provided by BNR to the Customer in accordance with these terms and conditions.
1.4. “Third party software” means all software owned by or licensed to the customer from a third party owner (whether or not supplied by BNR) and which comprises part of the Products.
2. Order Acceptance
2.1. All orders placed with BNR by the Customer for Products shall constitute an offer to BNR, under these terms and conditions, subject to availability of the Products and to the acceptance of the order by BNR authorised representative.
2.2. All orders are accepted and Products supplied subject to these express terms and conditions only. No amendment of these terms and conditions will be valid unless confirmed in writing on or after the date hereof by BNR’s authorised representative.
2.3. It is agreed that these terms and conditions prevail over the Customer’s terms and conditions of purchase unless these latter terms and conditions are amended by BNR in writing and signed by BNR.
3. Independent contractor
3.1. The relationship between the Supplier and Customer is that of independent contractor. Neither party is the agent of the other and neither party has any authority to make any contract or make any obligation expressly or impliedly in the name of the other party, without that party’s prior written consent for express purposes connected to the performance of this Agreement.
4.1. Any time quoted for despatch is to be treated as an estimate only, but despatch may be postponed because of conditions beyond BNR’s reasonable control, and in no event shall BNR be liable for any damages or penalty for delay in despatch or delivery.
4.2. Risk shall pass to the Customer at the time the Products are received, either by courier delivery or Customer arranged collection.
4.3. If Products have not been received, the Customer must notify BNR within 7 days of the date of the invoice. If proof of delivery is required by the Customer, this must be requested within 14 days of the date of the invoice and any charge to BNR for supplying the same will be passed on to the Customer. Any shortages must be advised by the Customer to BNR no later than 72 hours after taking of delivery. All claims will be deemed void if the shortages are reported after this time.
5. Cancellation and Rescheduling
5.1. Subject to clause 8.2, any request by the Customer for cancellation of any order or for rescheduling of deliveries by BNR must be made at least 12 hours before despatch of the Products, and shall be subject to acceptance by BNR at BNR’s sole discretion, and subject to a reasonable administration charge therefore by BNR. The Customer hereby agrees to indemnify BNR against all loss, costs (including the cost of labour and material used and overheads incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling.
6.1. Catalogues, price lists and other advertising literature or material as used by BNR are intended only as an indication as to price and range of goods offered and no prices, descriptions or other particulars contained therein shall be binding on BNR except that written quotes will remain valid for seven days. If a price quoted in writing changes after the Customer has ordered the Products the Customer will be given an opportunity to cancel the order before delivery.
6.2. All prices are given by BNR at the time of the order on an ex-works basis and the Customer is liable to pay for transport, packing and insurance.
6.3. All quoted or listed prices are based on the cost to BNR of supplying the Products to the Customer. If before delivery of the Products there occurs any increase in any way of such costs in respect of Products which have not yet been delivered, the price payable may be subject to amendment, however customers will be notified prior to orders being processed in this event.
6.4. All prices are exclusive of value added tax and any similar taxes. All such taxes are payable by the Customer and will be applied in accordance with UK legislation in force at the tax point date.
7. Payment Terms
7.1. Invoices will be raised and dated by BNR on the date of dispatch of the Products. Unless otherwise specially negotiated and agreed, invoices will be payable by the Customer 30 days from the date of the invoice if the Customer had a credit account, otherwise payment will be payable immediately. Payments which are not received when payable will be considered overdue and remain payable by the Customer together with interest for late payment from the date payable at the rate of 4% per annum above the base rate for the time being of the (Lloyds Bank plc) . Such interest shall accrue on daily basis and be payable on demand after as well as before judgement.
7.2. BNR reserves the right to cease supplies of Products to the Customer at any time. On such cessation of supplies, BNR reserve the right to withdraw any credit facility such that the whole of the Customer’s account becomes due for payment forthwith.
8. Title to Goods
8.1. Notwithstanding despatch and the passing of risk in the Products to the Customer pursuant to Clause 4, or any other provision of these conditions, the property in the hardware Products shall not pass to the Customer until BNR has received in cash or cleared funds payment of the price of the Products and all of the Products agreed to be sold by BNR to the Customer for which payment is then due.
8.2. Until such time as the property in the Products passes to the Customer, the Customer shall hold the Products as BNR fiduciary agent and bailee, and shall keep the Products properly stored, protected and insured and identified as BNR’s property. Until that time the Customer shall be entitled to resell or use the Products in the ordinary course of its business, but shall account to BNR for the proceeds of sale or otherwise of the Products, whether tangible or intangible, including insurance Proceeds, and shall keep all such proceeds separate from any monies or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
8.3. Until such time as the property in the Products passes to the Customer (and provided the Products are still in existence and have not been resold), BNR shall be entitled at any time to require the Customer to deliver up the Products to BNR and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products.
8.4. The Customer’s power of sale or right to use such Products shall immediately cease if an Administrative Receiver is appointed over all or any part of its assets or if it is adjudicated bankrupt or enters into liquidation whether compulsory or voluntary, or if the Customer makes an arrangement with its creditors, or generally becomes unable to pay its debts within the meaning of the insolvency Act 1986.
8.5. On termination of the Customer’s power of sale or right to use the Products the Customer will immediately hold the Products to the order of BNR.
8.6. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of BNR, but if the Customer does so, all monies owing by the Customer to BNR shall (without prejudice to any right or remedy of the seller) forthwith become due and payable.
8.7. Not to purport to resell any Products the title to which has not passed to the Customer under these Terms and conditions without such purported sale being subject to terms and conditions of sale which inter alia provides in similar terms to clause 8 hereof.
8.8. Where the Products are mixed with or incorporated into other goods prior to their re-sale by the Customer:
8.8.1. Although the property in the Products has not then passed to the Customer BNR shall be entitled to the same proportion of the proceeds of sale of the goods as the proportion of the price payable under this Contract bears to the aggregate of the prices of the Products comprised in the sold goods
8.8.2. The Customer shall keep such records as shall enable the extent to which the Products were so mixed or incorporated to be ascertained and on the sale of the goods the extent to which the Products were mixed or incorporated and the amount of the proceeds of sale of the goods and the proportion which the Contract price of the Products bears to the aggregate of the price of the Products comprised in the goods.
9. Specification of Products
9.1. BNR will not be liable of any loss or damage caused by or resulting from any variation for whatsoever reason in the manufacturer’s specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. BNR will use its reasonable endeavours to advise the Customer of any such impending variation as soon as it receives any notice thereof from the manufacturer.
9.2. Unless otherwise agreed, the Products are supplied in accordance with the manufacturer’s standard specifications as these may be improved, substituted or modified.
10. Proprietary Rights in Software Products
10.1. The Customer hereby acknowledge that any proprietary rights in any third party Software supplied hereunder including but not limited to any title or ownership rights, patent rights, copyrights and trade secret rights shall at all times and for all purposes vest and remain vested in the Third Party Software owner.
10.2. The Customer hereby acknowledges that it is its sole responsibility to comply with any terms and conditions of licence attaching to Third Party Software supplied and delivered by BNR (including if so required the execution and return of a Third Party Software licence). The Customer is hereby notified that failure to comply with such terms and conditions could result in the Customer being refused a software licence or having the same revoked by the Third Party Software owner. The Customer further agrees to indemnify BNR in respect of any costs, charges or expense incurred by BNR at the suit of the Third Party Software owner as a result of breach of such conditions.
11. Returns : Non-defective Products
11.1. Returns of non-defective Products must be made subject to the following:-
11.1.1. prior authority having been obtained from BNR which will be given at BNR’s sole discretion;
11.1.2. within 30 days of the date of the delivery.
11.1.3. subject to stock rotating policy;
11.1.4. The Products must be properly packed;
11.1.5. The Products must be in saleable condition;
11.1.6. the Products must be accompanied by a detailed packing list;
11.2. BNR reserves the right to reject any non-defective Products at its sole discretion
11.3. If BNR nevertheless agrees to accept any non-defective Products returned in a non-saleable condition, BNR reserve the right to charge the cost to the Customer of bringing the Products to a saleable condition.
11.4. Returns of defective Products to be repaired or exchanged must be made subject to the following:-
11.4.1. Prior authority having been obtained from BNR which will be given at BNR’s sole discretion;
11.4.2. The Products must be properly packed;
11.4.3. If no fault was found there would be a minimum charge of £ 25 levied at BNR’s sole discretion.
11.4.4. The Customer will pay for the goods to be delivered to BNR’s premises.
11.4.5. BNR will pay for the goods to be delivered to the customer address. In either case of defective and non-defective Products restocking will be at the discretion of BNR. If BNR agrees to restock a charge of 15% of the value of the Products and the carriage OR £25 and the carriage, whichever is the greater sum, will be charged to the Customer.
12.1. BNR warrants that it has good title to or licence to supply all Products to the Customer.
12.2. In the case of hardware Products only BNR will use reasonable endeavours to assign the benefit of any manufacturer’s warranty to the Customer. If any part of the hardware Products should prove defective in materials or workmanship under normal operation or service (provided such defect is not caused by the Customer not following the instruction manual, not taking care of the Products or using another party to repair the Products other than BNR, its agents or recommended repairers or the manufacturer) then such Products may, at the sole discretion of BNR, be repaired or replaced, but otherwise BNR will have no liability to the Customer.
12.3. All software Products supplied hereunder are supplied in accordance with clause 10.
12.4. EXCEPT AS SPECIFICALLY SET OUT IN THESE TERMS AND CONDITIONS, BNR DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, BY STATUE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESCRIPTION, DESIGN, MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY PREVIOUS COURSE OF DEALING, USAGE OR TRADE PRACTICE.
13. Indemnity and limited liability
13.1. BNR will indemnify the Customer for direct physical injury or death caused by its negligence but otherwise BNR’s liability for the supply of Products under any one contract shall be limited as set out in these Terms and Conditions and to £100,000 for any one event or a series of connected events.
14. Termination for cause : This agreement may be terminated forthwith by notice in writing:
14.1. By BNR if the Customer fails to pay any sums due hereunder by the due date notwithstanding the provisions for late payment in clause 7.1.
14.2. If either party fails to perform any of its obligations under this Agreement and such failure continues for a period of 14 days after written notice thereof, by the other party;
14.3. If either party is involved in legal proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or entered into liquidation, whether compulsory or voluntary, other for the purposes of an amalgamation or reconstruction, or makes an arrangement with its creditors or petitions for an administration order or has a Receiver or Manager appointed over all of its assets or any other rights or remedies available to it, the other party shall have the right to terminate this Agreement forthwith.
14.4. Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law, and shall not effect any accrued rights or liabilities of either party.
15. Export and/or re-export limitation
15.1. If the Products are being sold outside the United Kingdom the Customer takes full responsibility for and will indemnify BNR against any loss it may suffer as a result of the Products or any use to which they are put not being in compliance with local legal limitations. If such Products are sold on the basis of Incoterms (e.g. ‘f.o.b.’ or ‘c.i.f’) then the implied terms from Incoterms shall prevail where there is any inconsistency with these terms and conditions.
16.1. The headings in this agreement are for ease of reference only and shall not affect its interpretation or construction.
16.2. No forbearance, delay, or indulgence by either part in enforcing its respective rights shall prejudice or restrict the rights that party and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.
16.3. The Customer agrees not to assign any of its rights herein without the prior written consent of BNR.
16.4. In the event of these terms and conditions or any of them being judged illegal or unenforceable for any reason, the continuation in full force and effect of them shall not be prejudiced.
16.5. Neither party shall be liable to the other for any delay in or failure to perform its obligation hereunder (other than a payment of money) where such delay or failure results from force majeure, act of God, fire, explosion, accident, industrial dispute or any other cause beyond its reasonable control.
16.6. Any documents or notices given here under by either party to the other must be in writing and may be delivered personally or by recorded delivery or registered post and in the case of post will be deemed to have been given 2 working days after the date of posting. Documents or notices shall be delivered or sent to the addresses of the parties on the first page of this agreement or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of this Agreement.
16.7. The parties do not intend to create any rights for third parties by virtue of entering into this agreement and expressly exclude any rights which would otherwise have arisen by virtue of the Contracts (Rights of Third Parties) Act 1999.
16.8. These terms and conditions together with any document which specifically refers to them shall form the entire agreement between the parties in relation to its subject matter unless specifically agreed otherwise or varied in writing between the parties.
16.9. These terms and conditions shall be governed and constructed in accordance with English Law.