Our terms and conditions are detailed as follows, for any queries please contact your account manager.
1.1 In this Agreement, unless the context requires otherwise, the following expressions shall have the following meanings:
"Agreement" means these terms and conditions of sale, which form the agreement between Business Systems International Ltd and the Customer in respect of each Order;
"Confidential Information" means all information marked as "Confidential" and disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), or to any employee or sub-contractor of the Receiving Party (the "Recipient"), whether before or after the date of the Agreement, including, without limitation, any information relating to the Disclosing Party's customers, products, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunity and business affairs;
"Customer" means the person whose details are set out in each Order;
"Delivery Date" means the estimated date of delivery of the Products and/or commencement of the Services, if any, which may be communicated by Business Systems International to the Customer;
"Hardware" means the computer equipment to be sold to the Customer;
"Business Systems International (BSI)" means Business Systems International Limited of 59 Markham Street, London, SW3 3NR
"Order" means a request by the Customer to purchase those Products and/or Services specified therein;
"Premises" means the premises where the Products are to be delivered or installed;
"Price" means the price for the provision of the Products and Services contained in an Order; "Products" means collectively the Hardware and the Software, or any part thereof;
"Services" means configuration, installation, consultancy, disaster recovery or other services offered by Business Systems International ; "Supplier" means a manufacturer and/or licensor of a Product;
"Software" means the software to be licensed to the Customer.
1.2 In this Agreement references to:
1.2.1 persons - includes:- bodies, corporate, incorporated associations and partnerships;
1.2.2 Clauses - are to clauses of this Agreement;
1.2.3 a "subsidiary" or "holding company" - shall be construed in accordance with Sections 736 and 736A of the Companies Act 1985;
1.2.4 any statutory provision shall include reference to a statutory provision as modified or re-enacted or both from time to time whether before or after the date of this Agreement.
1.3 The headings in this Agreement shall not affect the interpretation of this Agreement.
2.1 A separate agreement on the terms of this Agreement shall come into force on the date on which each Order is accepted by Business Systems International Ltd.
2.2 This Agreement shall apply to all Products and Services ordered by the Customer and each Order shall constitute a separate contract on the terms and conditions hereof for those Products and Services forming part of such Order.
2.3 In respect of each Order this Agreement shall apply and prevail over any terms or conditions (whether or not in conflict with or additional to the terms and conditions of this Agreement) contained or referred to in any purchase order or other documentation submitted by the Customer or in correspondence or implied by trade, custom or course of dealing.
3.1 While Business Systems International shall use its reasonable endeavours to deliver Products and to ensure that the Services commence on the relevant Delivery Date, a failure to do so shall not constitute a breach of this Agreement.
3.2 If the Customer refuses or fails to take delivery of any Products, Business Systems International shall be entitled to immediate payment in full for such Products.
3.3 If the Customer refuses or fails to take delivery of any Products the Customer shall pay all costs of storage and any additional costs incurred as a result of such refusal or failure.
3.4 Business Systems International may carry out partial deliveries of the Products. In such an event, each delivery of the Products shall be separately invoiceable and payable. Each delivery shall be considered to be the subject of a separate contract and failure by Business Systems International to make any one or more deliveries in accordance with this Agreement or any claim by the Customer in respect of any one or more deliveries shall not entitle the Customer to treat this Agreement as a whole as repudiated.
3.5 Business Systems International hereby either (a) grants to the Customer with effect from the actual date of delivery a non-exclusive, non-transferable licence to use the Software for its own internal purposes only and in accordance with the Supplier's standard licensing terms, and for operation in an environment deemed suitable under the Supplier's standard licensing terms (which are available to the Customer on request), or (b) shall procure the grant of a licence directly from the Supplier to the Customer to enable the Customer to use the Software (on terms which shall be specified by the Supplier).
3.6 The Customer hereby indemnifies Business Systems International in respect of any loss (of any kind), which Business Systems International may suffer as a result of the breach by the Customer of a licence granted under Clause 3.5.
3.7 Products supplied on RENTAL terms are not to be taken apart. Components are not to be taken out of rented systems. Any damage that occurs as a result of the customer or the customers agent manipulating any of the internal components shall be the responsibility of the customer and invoiced at replacement value.
4.1 Risk of loss or damage to the Products shall pass to the Customer when delivered (whether delivered to the Customer or to a third party at the Customer's direction) and the Customer shall be responsible for insuring the Products thereafter. Title to the Hardware shall pass to the Customer on the date that the Price and any additional costs payable, including any applicable value added tax, have been paid in full to Business Systems International. For the avoidance of doubt, title to the Software (and all documentation relating to the Software) shall remain with the Supplier at all times. Notwithstanding title in any Products passing to the Customer, Business Systems International shall retain the right to maintain an action for the price of the Products.
4.2 Until the Customer has settled in full any accounts owed to Business Systems International under any Order placed under this Agreement, the Customer shall hold all of the Products on trust for Business Systems International.
4.3 Business Systems International shall be entitled (without prejudice to any other legal remedies which it may have) to enter the Premises without notice to the Customer and remove the Products at any time if the Customer fails to make payment in full of all sums due under this Agreement by the due date.
5.1 Business Systems International warrants that:
5.1.1 it is entitled to enter into this Agreement;
5.1.2 it shall use its reasonable care and skill in carrying out the Services;
5.1.3 all employees and replacements thereof to be provided by Business Systems International for the purposes of carrying out Business Systems International 's obligations hereunder will have the necessary expertise and skills to perform Business Systems International 's obligations hereunder.
5.2 Business Systems International shall either (a) procure for the Customer the benefit of any standard end-user warranties in respect of the Products and Services from the Supplier(s) (whether by assignment from Business Systems International or granted directly by the Supplier(s)) or (b) grant the Customer the same warranties that Business Systems International receives from the Supplier(s) in respect of the Products and Services, including, without limitation, the Supplier(s) warranties relating to Year 2000 compliance (if any). Any sums recoverable under (b) shall be limited to the sums recovered by Business Systems International from the relevant Supplier(s) in respect of the relevant claim. Details of these warranties are available upon request.
5.3 The Customer shall notify Business Systems International in writing of any failure by Business Systems International to comply with any of the warranties set out in Clause 5.1, or any failure of the Products or Services to comply with the relevant Supplier's standard warranties, as soon as practicable after discovery of the failure, failing which the Customer shall not be entitled to claim for breach of warranty. The notice from the Customer to Business Systems International shall identify and, where possible, substantiate the breach.
5.4 Except for the express warranties and conditions expressly contained or referred to in this Agreement, Business Systems International makes no other warranties or conditions, express or implied, including the implied warranties and conditions of satisfactory quality or fitness for a particular purpose in respect of the Products or Services.
5.5 In the unlikely event that you receive goods which were not what you ordered or which are damaged or defective, or are of a different quantity to that stated on your order form, Business Systems International ("the Company") shall, at its own option, make good any shortage or non-delivery, replace or repair any damaged or defective goods, or refund you the amount you paid for the goods in question PROVIDED THAT you notify Business Systems International of the problem in writing within a maximum 5 days of delivery of the goods. If the customer fails to comply with this clause the Company shall not be liable to the customer in respect of any shortage, discrepancy, damage or fault, or in respect of any consequential losses or expenses arising therefrom."
6.1 The copyright and all other intellectual property rights of whatever nature in the Products shall be and remain vested in the Supplier(s).
6.2 The Customer shall not remove any notices of copyright or other intellectual property rights contained on or in the Products.
6.3 Business Systems International shall either (a) procure for the Customer the benefit of any standard end-user warranties and/or indemnities from the Supplier(s) (whether by assignment from Business Systems International or granted directly by the Supplier(s)) in respect of any alleged infringement of intellectual property rights by the Products or Services or (b) grant the Customer the same warranties and/or indemnities that Business Systems International receives from the Supplier(s) in respect of the Products and Services. Any sums recoverable under (b) shall be limited to the sums recovered by Business Systems International from the relevant Supplier(s) in respect of the relevant claim. Details of these warranties and indemnities are available upon request.
6.4 The Customer shall promptly notify Business Systems International in writing of any allegations of infringement of which it becomes aware and shall not make any admission without Business Systems International 's prior written consent.
6.5 The provisions of this Clause 6 shall survive the termination of this Agreement in so far as it relates to events occurring before the date of termination of this Agreement.
Any Services to be provided or procured by Business Systems International shall be subject to any additional terms contained or referred to in the Business Systems International Standard Terms and Conditions for the Provision of Consultancy Services ("Services Terms"). In the event of any conflict or discrepancy between the terms of the Services Terms and the terms herein, the Services Terms shall prevail.
8.1 The Customer shall pay to Business Systems International the Price as invoiced. Delivery of the Products will be charged for in addition, unless otherwise agreed.
8.2 All valid invoices issued to the Customer pursuant to this Agreement shall be payable within 30 days of date of issue. Invoices in respect of Services shall be issued in advance of the supply of the Services. The Customer shall not be permitted to make any deduction from the Price whether in respect of set-off, counterclaim or otherwise.
8.3 The Price, and any additional charges payable hereunder, are exclusive of VAT, customs charges and duties, which shall be paid by the Customer in the amount and manner prescribed by law.
8.4 Business Systems International may charge interest at the rate of 1.5% per month or part thereof from the due date until the date of payment, whether before or after judgement, on any unpaid sum due from the Customer to Business Systems International under this Agreement.
8.5 Without prejudice to any of its other rights, Business Systems International shall be entitled to suspend its obligations under this Agreement for so long as any payment due hereunder remains outstanding.
9.1 Otherwise than as may be provided in relation to the Services, either party may terminate this Agreement by giving no less than 30 days notice in writing to the other.
9.2 Either party ("Initiating Party") may terminate this Agreement at any time forthwith by notice in writing if:
9.2.1 the other party (the "Breaching Party") is in material breach of any of its material obligations under this Agreement and (if the breach is capable of remedy) fails to remedy the breach within 30 days after receipt of notice in writing from the Initiating Party giving particulars of the breach and requiring the Breaching Party to do so;
9.2.2 a resolution is passed or an order is made for the winding-up (or equivalent order in the relevant jurisdiction) of the other party otherwise than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction and in such manner that the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the obligations imposed on the other party under this Agreement; or
9.2.3 the other party becomes subject to an administration order; a liquidator, receiver or administrative receiver or similar is appointed over, or an encumbrancer takes possession of, any of the other party's property or assets; the other party enters into an arrangement or composition with its creditors; the other party ceases or threatens to cease to carry on business; the other party becomes insolvent; or the other party ceases to be able to pay its debts as they fall due.
10.1 Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party which have arisen on or before the date this Agreement terminates, nor shall it affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
10.2 Unless terminated pursuant to Clause 9.2, the licence to use the Software contained in Clause 3.5 shall survive any termination of the Agreement.
10.3 The following Clauses shall survive termination of this Agreement: 1, 4, 6, 8, 10, 12, 13, 15, 16, 19.
11.1 The Customer shall not, nor shall it purport to, assign, transfer or sub-contract any of its rights or obligations under this Agreement without the prior written consent of Business Systems International, such consent not to be unreasonably withheld or delayed.
11.2 Business Systems International shall be entitled to assign this Agreement to any Business Systems International Company. The Customer will be informed of any such assignment.
12.1 During the term of this Agreement and after the termination or expiry of this Agreement for any reason whatsoever the Receiving Party shall:
12.1.1 keep the Confidential Information confidential;
12.1.2 not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with Clauses 12.2, 12.3 and 12.4; and
12.1.3 not use the Confidential Information for any purpose other than the performance of its obligations under this Agreement.
12.2 During the term of this Agreement the Receiving Party may disclose the Confidential Information to its Recipients to the extent that it is necessary for the purposes of this Agreement.
12.3 The Receiving Party shall use all reasonable endeavours to ensure that each Recipient is made aware of and complies with all the Receiving Party's obligations of confidentiality under this Agreement as if the Recipient were a party hereto.
12.4 The obligations contained in Clauses 12.1 to 12.3 shall not apply to any Confidential Information which:
12.4.1 is at the date of this Agreement in, or at any time after the date of this Agreement comes into, the public domain other than through a breach of this Agreement by the Receiving Party or any Recipient;
12.4.2 can be shown by the Receiving Party to the satisfaction of the Disclosing Party to have been known to the Receiving Party prior to it being disclosed by the Disclosing Party to the Receiving Party; or
12.4.3 subsequently comes lawfully into the possession of the Receiving Party from a third party.
12.5 No public announcements concerning the existence or contents of this Agreement shall be made by either party without the prior written consent of the other party.
13.1 Neither party shall, nor shall they purport to, exclude or restrict liability for death or personal injury resulting from the negligence of that party or its employees, servants or agents acting in the course of their employment.
13.2 Save as expressly set out herein, all conditions, warranties and obligations which may be implied or incorporated into this Agreement by statute, common law, or otherwise, including those in respect of satisfactory quality and fitness for purpose, and any liabilities arising therefrom, are hereby excluded.
13.3 Neither party shall in any circumstances be liable to the other for loss of profits, business or contracts or any other indirect or consequential loss caused in any way by some act, omission, or misrepresentation (excluding any fraudulent or negligent misrepresentation) committed in connection with this Agreement (whether arising from negligence, breach of contract or howsoever), even if such loss was reasonably foreseeable or if one party had advised the other of the possibility of such loss.
13.4 Other than in respect of Clause 13.1, the total aggregate liability of one party to the other from any cause relating to or arising out of this Agreement, regardless of the form of action whether in contract, tort or otherwise, will not, in respect of:
13.4.1 the Products, exceed the Price; and
13.4.2 the Services, exceed the sums paid therefor.
13.5 Other than in respect of Clause 13.1, neither party shall have any liability to the other in any respect unless it shall have served notice of the same on the other party within 12 months of the date on which it became aware of the circumstances giving rise to any such claim or the date when it ought reasonably to have become so aware.
13.6 Each provision of this Clause 13, limiting or excluding liability, operates separately and shall survive independently of the other provisions.
14.1 Save for the payment obligations in Clause 8, neither party shall be liable for failure to perform its obligations under this Agreement if such failure results from circumstances beyond that party's reasonable control including but not limited to strikes, lock-outs, labour disputes, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood or storm ("Event of Force Majeure").
14.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
The Customer acknowledges that the Products may be subject to the export control regulations of the UK and/or another country. Accordingly, the Customer agrees that any Products to which such regulations apply will not be exported from the UK to any country prohibited by such regulations, unless prior approval in writing has been obtained from the relevant regulatory authorities, which shall be the Customer's responsibility and at the Customer's expense.
16.1 During the term of this Agreement and, should the Agreement terminate, for a period of 12 months from the date of the last Order, neither party will employ or solicit for employment any member of the other's then current personnel connected with the performance of this Agreement.
16.2 In respect of any breach by either party of Clause 16.1, the other party, in addition to any other remedies available in this Agreement or at law, shall be entitled to recover from the party in breach the costs of recruiting and training a replacement for any member of that party's personnel employed or solicited for employment.
17.1 No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties by a duly authorised officer of each of the parties.
17.2 The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. The rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
17.3 The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect or impact the continuation in force of the remainder of this Agreement.
17.4 Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party, or to contract in the name of, or to create a liability against, the other party in any way or for any purpose.
18.1 This Agreement (as amended from time to time), together with any document expressly referred to in any of its terms, contains the entire agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of this Agreement.
18.2 The Customer confirms that, in agreeing to enter into this Agreement, it has not relied on any representation save insofar as the same has expressly in this Agreement been made a representation and agrees that it shall have no remedy in respect of any misrepresentation which has not become a term of this Agreement, save that the agreement of the Customer contained in this Clause 18.2 shall not apply in respect of any fraudulent or negligent misrepresentation, whether or not such has become a term of this Agreement.
18.3 The parties agree that the provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
19.1 Any notice under or in connection with this Agreement shall be in writing and shall be delivered personally or sent by recorded delivery or email to the address of the party set out in this Agreement or to any other person or address subsequently notified by one party to the other.
19.2 In the absence of evidence of earlier receipt any notice shall be deemed to be duly given:
19.2.1 if delivered personally when left at the address referred to in Clause 19.1; or
19.2.2 if sent by recorded delivery three (3) days after posting it;
19.2.3 if sent by email, when received.
This Agreement shall be governed by, and construed in accordance with, the laws of England and Wales and the Customer agrees to submit to the exclusive jurisdiction of the English courts.