Conditions for the Purchase of IT Equipment

1. Interpretation

The definitions and rules of interpretation in this clause apply in these conditions.

1. Definitions

"Contract"	the Purchase Order and the Supplier's acceptance of it in accordance with condition 3.3;
"Customer"	OTEP Technologies Limited with company number 06832129 whose registered office is at Alex House 260/268 Chapel Street, Salford, Manchester M3 5JZ;
"Equipment"	the equipment agreed in the Contract to be purchased by the Customer from the Supplier (including any part of it);
"Intellectual Property Rights"	patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, those rights, and all similar or equivalent rights or forms of protection in any part of the world;
"Purchase Order"	the Customer's written instruction to supply the Equipment, incorporating these conditions;
"Software"	any and all computer programs and computer software (of whatever type and in whatever form or media) installed on or supplied with the Equipment at the time of its delivery and either necessary for its operation in the manner contemplated by the Customer or otherwise referred to in the Purchase Order;
"Supplier"	the person, firm or company who accepts the Purchase Order in accordance with condition 3.3;
"Use"	in relation to Software, includes the right to use the Software on the Equipment and any back-up or standby equipment, to make the copies as are necessary to use the Software on each part of the Equipment and to make copies for back-up purposes as well as all other ancillary rights implied by law;
"Virus"	any program which contains malicious code or infiltrates or damages a computer system without the owner's informed consent or is designed to do so or which is hostile, intrusive or annoying to the owner or user and has no legitimate purpose.

1. Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
3. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
5. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
6. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
7. A reference to writing or written includes faxes and email.
8. References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
9. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1. Application of conditions
   1. These conditions shall:
      1. apply to and be incorporated in the Contract; and
      2. prevail over any inconsistent terms or conditions contained in or referred to in the Supplier's quotation, acceptance, correspondence or elsewhere or implied by law, trade custom, practice or course of dealing.
   2. No addition to, variation of, exclusion or attempted exclusion of the Purchase Order or these conditions or any of them shall be binding on the Customer unless in writing and signed by a duly authorised representative of the Customer. 
   3. Where the Purchase Order is for more than one item, it shall (following acceptance by the Supplier) be regarded as a single Contract for all Equipment supplied pursuant to that Purchase Order. 
2. Effect of Purchase Order
   1. The Customer shall only be bound by an order if it is issued on the Customer's standard Purchase Order form and signed by a duly authorised representative of the Customer.
   2. The Purchase Order constitutes an offer by the Customer to purchase the Equipment subject to these conditions. Accordingly, any acceptance of the Purchase Order by the Supplier shall establish a contract for the sale and purchase of that Equipment on these conditions. Any counter-offer made by the Supplier to supply the Equipment on other conditions shall only be validly accepted if that acceptance is in writing and signed by a duly authorised representative of the Customer.
   3. The execution and return of the acknowledgement copy of the Purchase Order form by the Supplier, or the Supplier's execution, commencement of work or commencement of delivery pursuant to the Purchase Order constitutes acceptance of the Purchase Order on these conditions by the Supplier.
3. Supplier's warranty
   1. The Supplier warrants to the Customer that:
      1. the Equipment will conform with the quality, description and other particulars of the Equipment stated in the Purchase Order; 
      2. the Equipment is free to be imported into the UK and also the European Economic Area ("EEA") without breach of any Intellectual Property Rights or any other law or applicable rights;
      3. the Equipment will conform to all samples, drawings, descriptions and specifications provided to the Customer by the Supplier; 
      4. the Equipment will conform with all standards referred to on any part of the Equipment and in any product packaging and/or documents in, with or in relation to which the Equipment is supplied;
      5. the Equipment will be of satisfactory quality and fit for any intended uses expressly or impliedly made known to the Supplier, and will be free from all defects in materials, workmanship and installation for a period of 12 months from the date of delivery; 
      6. the Equipment and Software will comply with all performance and other specifications stated in the Purchase Order, and all applicable legislation for the time being in force, including all Cybersecurity Requirements;
      7. unless the Customer and the Supplier have agreed in writing (signed on behalf of the Customer) additional conditions for any software before or at the same time as this Purchase Order, the Supplier has and will continue to have the full right and title to license the Customer and hereby grants to the Customer without further charge the irrevocable right and licence to Use the Software on the Equipment;
      8. where the Software is licensed directly to the Customer by the Supplier's licensor, the Supplier will procure for the Customer rights in all respects no less favourable than those it would have granted had it granted the rights directly under the express licence at condition 4.1.7;
      9. at the time of installation the Software will be free from all Viruses;
      10. it will provide to the Customer high quality user manuals and training and other documents for the Equipment and the Software without further charge in that form and quantities as the Customer may reasonably stipulate at any time before [NUMBER] days after delivery. 
   2. The Customer's rights under the Contract are in addition to the statutory terms implied in favour of the Customer by the Sale of Goods Act 1979 and any other statute. 
   3. The provisions in this condition 4 shall survive any delivery, inspection, acceptance, payment or performance pursuant to the Contract and shall extend to any replacement, repaired, substitute or remedial equipment provided by the Supplier. 
4. Quantities

Unless the Customer has agreed otherwise in writing, the Supplier shall deliver the exact specified quantities of items comprised in the Equipment in accordance with the Purchase Order.

1. Inspection and testing of Equipment
   1. The Supplier shall carefully test and inspect the Equipment before delivery to ensure that it complies with the requirements of the Purchase Order.
   2. The Customer reserves the right to call for certificates or test certificates for the Equipment at any stage of manufacture or assembly. Those certificates shall clearly state the Customer's order numbers and any item or equipment numbers. If, as a result of any inspection or test, the Customer finds that the Equipment or any items comprised within it or do not comply with the Purchase Order, or are unlikely to comply with it on completion of manufacture, processing or performance, the Customer may inform the Supplier, and the Supplier shall take those steps as are necessary to ensure compliance.
2. Delivery, installation and acceptance of Equipment
   1. The Supplier shall deliver the Equipment on the date specified in the Purchase Order or, if no such date is specified, within 28 days of the date of the Purchase Order. Time is of the essence as to the delivery of the Equipment under the Contract and if the Supplier does not comply with its obligations in the preceding sentence, the Customer may, without prejudice to any other rights or remedies that it may have:
      1. cancel the Contract in whole or in part without incurring any liability to the Supplier; 
      2. refuse to accept any subsequent delivery of items comprised in the Equipment which the Supplier attempts to make; 
      3. purchase substitute items elsewhere; and/or 
      4. hold the Supplier accountable for any loss and additional costs incurred.
   2. The Equipment shall be properly packed and secured in such manner as to enable it to reach its destination in good condition. No charge shall be made for wrapping, packing, cartons, boxes, crating or containers unless specified in the Purchase Order, and the Customer shall not be responsible for returning those materials. 
   3. The Equipment shall be delivered by the Supplier carriage free to the place of delivery specified in the Purchase Order, or as otherwise specified by the Customer by means of advice notes quoting the Customer's order number. The Equipment shall be received at the place of delivery, subject to the Customer's inspection and approval. Any Equipment which the Customer rejects as not conforming with the Purchase Order shall be returned at the Supplier's risk and expense. 
   4. Unless the Customer and the Supplier have, before or at the same time as the Purchase Order, agreed in writing (signed on behalf of the Customer) additional conditions regarding preparation of or environmental requirements at the site at which the Equipment is to be installed, the Supplier acknowledges and agrees that the Equipment is suitable to be installed and used at the premises at which the Customer intends to use it and that there are no additional conditions regarding site preparation or environmental requirements. 
   5. In relation to installation and acceptance tests:
      1. except where condition 7.5.5 applies, the Supplier shall, without further charge to the Customer, install the Equipment at the premises at which the Customer intends to use it and subject the Equipment to its standard installation and acceptance tests; 
      2. if the Equipment passes those tests, the supplier will issue an acceptance certificate to that effect to the Customer, but receipt by the Customer of such an acceptance certificate will not constitute legal acceptance by the Customer;
      3. if the Equipment does not (on any attempt) pass those tests, the Supplier will (without affecting the Customer's other rights and remedies) promptly and at its expense carry out all necessary remedial work and resubmit the Equipment to the tests as set out in condition 7.5.1 and condition 7.5.2;
      4. If all the tests have not been successfully completed within [NUMBER] days after delivery, the Customer shall have the same rights as it would have had if the Supplier had not performed its obligations under condition 7.1; and
      5. if the Customer and the Supplier have, before or at the same time as the Purchase Order, agreed otherwise in writing (signed on behalf of the Customer), then the Customer (itself or through a third party) will be responsible for installing the Equipment and condition 7.5.1 to condition 7.5.4 shall not apply.
   6. Notwithstanding condition 7.5, the Customer shall not be deemed to have accepted the Equipment until it has had [NUMBER] days to inspect it after delivery. The Customer may also reject the Equipment as though it had not been accepted for [NUMBER] months after any latent defect in the Equipment has become apparent.
3. Risk and property
   1. The Equipment shall be at the risk of the Supplier until delivery to the Customer at the place of delivery specified in the Purchase Order, or as otherwise specified by the Customer in accordance with condition 7.3. 
   2. Ownership of the Equipment shall pass to the Customer on completion of delivery (including off-loading) in accordance with the Purchase Order, except that if the Equipment is paid for before delivery ownership shall pass to the Customer once payment has been made. The passing of ownership in the Equipment is without prejudice to any right of rejection to which the Customer may be entitled under the Contract or otherwise. 
4. Prices

All prices shall be as stated in the Purchase Order, except that if the Supplier quotes or offers to a third party lower prices or better terms for equipment of similar quality, quantity or description to the Equipment (or the items comprised in it), the Customer shall be entitled to purchase the Equipment (or the relevant items comprised in it) on the same terms and shall be entitled to a refund of the amount of the difference in respect of all such Equipment supplied after whichever is the earlier of the first quotation or the first supply at the lower price or better terms (as the case may be). All prices are fixed and inclusive of delivery, packaging, packing, shipping, carriage, insurance and other charges and dues, and are not subject to adjustment save as specifically provided in these conditions or the Purchase Order.

1. Payment
   1. Unless otherwise stated in the Purchase Order, payment of invoices shall be made by the end of the month following the month in which the Equipment is received by the Customer in accordance with the Purchase Order.
   2. Without prejudice to any other right or remedy, the Customer reserves the right to set off any amount at any time owing to it by the Supplier against any amount payable by it to the Supplier under the Contract. 
2. Indemnity
   1. The Supplier shall indemnify and hold the Customer harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, the Customer as a result or in connection with:
      1. any alleged or actual infringement, whether or not under English law, of any third party's Intellectual Property Rights or other rights arising out of the use, manufacture or supply of the Equipment; or
      2. any claim made against the Customer that the Customer is in breach of any applicable law as a result of the sale of the Equipment to a third party;
      3. defective workmanship, quality or materials in or in relation to the Equipment; or 
      4. any claim made against the Customer in respect of any liability, loss, damage, injury, cost or expense sustained by the Customer's employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Equipment as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the Contract by the Supplier howsoever arising.
3. Confidentiality and the Customer's property
   1. The Supplier shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Supplier by the Customer or its agents, and any other confidential information concerning the Customer's business or its products which the Supplier may obtain. The Supplier shall restrict disclosure of such confidential material to such of its employees as need to know the same for the purpose of discharging the Supplier's obligations to the Customer.
   2. All materials, equipment, tools, copyright, rights in designs and any other Intellectual Property Rights in all drawings, specifications and data supplied by the Customer to the Supplier shall at all times be and remain the exclusive property of the Customer, and shall be held by the Supplier in safe custody at its own risk and maintained and kept in good condition by the Supplier until returned to the Customer, and shall not be disposed or used other than in accordance with the Customer's written instructions or authorisation. The Supplier shall return all copies of any such material to the Customer immediately on the Customer's first written request.
   3. This condition 12 shall survive the termination of the Contract, however arising.
4. Termination
   1. The Customer may cancel the Contract (for all or part only of the Equipment) by giving written notice to the Supplier at any time before delivery, in which case the Customer shall pay the Supplier the price for the cancelled Equipment, less any cost savings accruing to the Supplier by reason of the cancellation. 
   2. Without prejudice to any other rights or remedies to which the Customer may be entitled, the Customer may terminate the Contract without liability to the Supplier if:
      1. the ability of the Customer to accept delivery of the Equipment is delayed, hindered or prevented by circumstances beyond its reasonable control; 
      2. the Supplier commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of [10] days after being notified in writing to do so;
      3. the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
      4. the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier];
      5. the Supplier applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
      6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier;
      7. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Supplier (being a company, partnership or limited liability partnership);
      8. the holder of a qualifying floating charge over the assets of the Supplier (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
      9. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
      10.     13.2.10.a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Supplier's assets and that attachment or process is not discharged within 14 days;
      11. any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 13.2.2 to condition 13.2.10 (inclusive).
   3. Without affecting any other right or remedy available to it, the Customer may terminate this agreement with immediate effect by giving written notice to the Supplier if the Supplier commits a breach of its obligation in [condition [▼]].
   4. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
   5. Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
5. Remedies
   1. If any Equipment is not supplied in accordance with, or the Supplier fails to comply with, any terms of the Contract, the Customer may (without prejudice to any other right or remedy) exercise any one or more of the following rights or remedies, whether or not any part of the Equipment has been accepted by the Customer:
      1. rescind the Contract;
      2. reject the Equipment (in whole or in part) and return it to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Equipment so returned shall be paid immediately by the Supplier;
      3. require the Supplier, at the Supplier's expense, either (at the Customer's option) to remedy any defect [or Vulnerability] in the Equipment and carry out such other work as is necessary to ensure that the Equipment is in all respects in accordance with the Purchase Order or to supply replacement equipment, provided that if the Supplier refuses to remedy the defect in the Equipment or to supply replacement equipment within 15 days of receiving such a request, the Customer may purchase replacement equipment from another source and the Supplier shall reimburse the Customer for all costs and expenses reasonably incurred in doing so; or
      4. refuse to accept any further deliveries of the Equipment, without liability to the Supplier,

and in any case to claim such damages as it may have sustained in connection with the Supplier's breach or breaches of the Contract not otherwise covered by this condition 14.

1. Force majeure

The Customer may defer the date of delivery or payment, or cancel the Contract or reduce the amount of Equipment ordered, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of the Customer or any other party), failure of a utility service or transport or telecommunication network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

1. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

1. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of that right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

1. Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

1. Severance
   1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
   2. If any provision or part-provision of this agreement is deemed deleted under condition 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
2. Assignment
   1. The Supplier shall not, without the prior written consent of the Customer, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. 
   2. The Customer may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. 
3. Third party rights

No one other than a party to this agreement[, their successors and permitted assignees,] shall have any right to enforce any of its terms.

1. Notices
   1. Any notice [or other communication] given to a party under or in connection with this contract shall be in writing and shall be:
      1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or 
      2. sent by fax to its main fax number.
   2. Any notice [or communication] shall be deemed to have been received:
      1. if delivered by hand, at the time the notice is left at the proper address;
      2. if sent by pre-paid first-class post or other next working day delivery service, at [9.00 am] on the [second] Business Day after posting; or
      3. if sent by fax, at [9.00 am] on the next Business Day after transmission.
   3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. [For the purposes of this clause, "writing" shall not include email.]
2. Governing law

The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales. 

1. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).