ORBEX SOLUTIONS LIMITED - SALES TERMS & CONDITIONS
These Terms and Conditions form part of any agreement, which Orbex Solutions Limited ("Orbex") enters into for the supply of Goods and/or Services (as defined below).
"Contract" means an agreement between Orbex and Customer for the supply of Goods and/or Services
"Customer" means a party to a Contract other than Orbex.
"Equipment" means all hardware and materials being the subject of a Contract.
"Goods" means Equipment and/or Software.
"Services" means installation and/or project management and/or advisory work and/or repairs and/or any other service being the subject of a Contract not involving directly the supply of Goods.
"Software" means all operating systems, utilities and other programs residing in storage memory or other media together with associated documentation supplied in connection with a Contract.
2.1 Customer shall place orders with Orbex in writing (which shall include facsimile transmission and electronic mail). Provided (a) such order(s) is/are in accordance with these Terms and Conditions and/or any other agreement between the parties and (b) Orbex does no reject such order(s) within 8 working hrs, it/they shall be deemed accepted by Orbex. Orbex may at its discretion accept verbal orders provided Customer confirms such orders forthwith in writing.
2.2 Orbex reserves the right not to accept an order (or to revoke acceptance thereof) if it believes at its sole discretion that any credit limit set from time to time by Orbex relating to Customer might be exceeded.
3.1 Orbex shall use its best endeavours to deliver Goods promptly an efficiently to the last advised business address of Customer or a otherwise specified in the relevant Contract(s).
3.2 Orbex reserves the right to part-deliver an order unless Customer specifics otherwise in the relevant Contract(s).
3.3 Customer shall accept delivery of Goods.
3.4 All risk of loss or damage to or arising from Equipment ordered shall pass to Customer immediately on delivery to Customer's premises or into custody on his behalf (whichever is the sooner). Customer shall at all times hold with reputable insurers effective insurance policies against such risks and shall (until ownership of the equipment passes to Customer) hold on trust for Orbex absolutely all proceeds received in respect of such insurance policies.
3.5 Orbex shall replace free of charge Equipment damaged in transit or not delivered in accordance with Customer's order provided that Customer advises Orbex in writing of such damage or incorrect delivery within 7 days following delivery.
4 Payment
4.1 Customer shall unless otherwise agreed from time to time (in which case Robe’s rights under any Contract shall not be prejudiced) make payment within 30 days of the date of Orbex's invoice.
4.2 If such payment is not duly made Orbex may cancel or withhold delivery of any unfulfilled orders or parts thereof.
4.3 Without prejudice to any of its rights hereunder, Orbex reserves the right to charge interest (both before and after judgement) at the rate of 5% per annum above Lloyds Bank's base rate for the time being on any sum remaining unpaid after the due date from the due date until payment is received by Orbex.
4.4 Ownership of Equipment shall not pass to Customer until all payments (including V AT) relating thereto have been made and if Customer before such payments have been made receives proceeds of sale of such Equipment he will hold such proceeds in trust for Orbex.
5 Returns
Orbex will not accept Goods returned by Customer for credit except where Orbex has given its prior written consent and such Goods are in Orbex's original packing with the seal unbroken.
6 Software Licence(s) (where Software forms part of Contract)
6.1 Subject to the provisions of this Clause Orbex hereby grants to Customer the non-exclusive right to use the Software solely for the operations and maintenance of the Equipment and to grant such right to purchasers from it.
6.2 Customer acknowledges that the Software contains confidential information of Orbex and that all copyright, trademarks and other intellectual property rights in the Software are the sole and exclusive property of Orbex or its licensors.
6.3 Customer shall not
a. copy the whole or any part of the Software except for back -up purposes;
b. modify, merge or combine the whole or part of the Software with any other software nor use any other software with the Goods other than software applications approved by Orbex;
c. assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Software nor make it available to any third party save in connection with the sale of Products to end-users;
d. reverse-compile the whole or any part of the Software from object code into source code.
6.4 Customer shall keep confidential the Software and limit access to it to those of its employees, agents and purchasers of Goods who either have a need to know or are engaged in the use of the Software and shall take all possible steps to ensure compliance with this sub-clause.
7 Warranty
7.1 Save as provided below, Orbex warrants that Equipment delivered hereunder is of merchantable quality and fit for its intended purpose. If within a period of 18 months from its date of delivery a defect arises in such Equipment caused by faulty design, materials or workmanship and provided that Customer promptly advises Orbex in writing of such defect and returns the relevant Equipment carriage paid, properly packed and identified as to Customer's identity, any relevant serial numbers and the alleged defect, Orbex will examine such Equipment and as appropriate repair it or at its discretion despatch a replacement free of charge as soon as possible with a target time of not more than 10 working days.
7.2 Save as provided below, Orbex warrants that the media upon which the Software is stored will for 12 months after delivery is free from defects in or arising from materials and workmanship, but does not warrant that the Software will be error-free or that its use will be uninterrupted. However if defect(s) in the Software become apparent which materially affect the performance of Equipment delivered hereunder, Orbex will use all reasonable endeavours to correct such defect(s) within a reasonable time with the proviso that Orbex reserves the right to substitute a new release of software.
7.3 Orbex shall not be liable to remedy any defect in Goods.
a. if alterations or repairs have been made other than by Orbex or persons authorised by it; or
b. if such defect has been caused (other than by Orbex or its agents) by accidental or wilful damage (including lightning and electrical damage), negligence, failure to follow operating instructions or abnormal use; or
c. if Orbex is not promptly notified in writing upon discovery by Customer of any such defects; or
d. for as long as any sum due under any Contract with Customer remains overdue.
7.4 All costs (including freight and insurance charges) in returning alleged defective Goods to Orbex shall be the responsibility of Customer. All costs in returning repaired or replacement Goods to Customer shall be the responsibility of Orbex.
7.5 All risks relating to alleged defective Goods shall pass to Orbex on receipt thereof by Orbex and shall re-pass to Customer on receipt by him of the repaired or replaced Goods.
7.6 Ownership of any Goods replaced as a result of this clause shall pass to Orbex upon delivery to Customer of the replacement Goods.
Subject to the foregoing and with the exception of conditions and warranties implied by law (insofar as they are applicable), all ~ conditions, warranties, terms and undertakings, express or implied, statutory or otherwise, in respect of Goods and the delivery thereof are hereby excluded.
8 Installation (where Installation forms part of a Contract)
8.1 Customer shall store Equipment before installation in safe and suitable conditions in accordance with Orbex's recommendations.
8.2 Customer shall provide suitable accommodation for the sitting of any equipment to be installed by Orbex in accordance with Orbex's recommendations.
8.3 Customer is responsible for providing suitable interface points (for example power points and data interfaces).
8.4 If Orbex at Customer's request acts on behalf of Customer to order public network services, Orbex does so as agent for Customer and will not be liable for costs and charges arising directly or indirectly from such activity (including late delivery of ordered services by the network provider), except in the case of the manifest negligence of Orbex.
8.5 Orbex reserves the right to sub-contract all or part of its obligations at its sole discretion.
8.6 On due completion of the installation work the subject of a Contract, Customer will sign a Satisfaction Note in Orbex's standard form.
8.7 If Customer fails to give Orbex at least 24 hours' notice of postponement of all or part of a mutually agreed installation work -programme, Orbex will be entitled to make a charge to recover its costs (including overhead recovery) associated with such cancellation or postponement.
9 Limitation of Liability
Unless otherwise expressly stipulated in these Terms and Conditions the following provisions set out Orbex's entire liability to Customer for the acts and omissions of its employees, agents and sub-contractors in respect of any breach of its obligations under any Contract and any representation, statement or tortuous act or omission including negligence arising in connection therewith:
9.1 Orbex's liability to Customer for death or personal injury resulting from its own or its employees', agents' or sub-contractors' negligence shall be unlimited.
9.2 Orbex shall not be liable to Customer for loss of profits, business, goodwill, anticipated savings or any type of special, indirect or consequential loss (including loss or damage suffered by Customer as a result of an action brought by a third party). If however notwithstanding the provisions of this sub-clause Orbex shall be held liable to Customer therefore, Orbex's entire liability in regard thereof shall not exceed three times the net total price (excluding V A T) of the relevant Contract subject to a maximum of £50,000 in respect anyone claim or series of claims arising from the same event, and Orbex and Customer agree that such sum is reasonable in the context of Contracts actual or anticipated in the future.
9.3 If Orbex shall be held liable to Customer for damage to tangible property resulting from the negligence of Orbex, its employees or sub-contractors, Orbex's entire liability in regard thereof shall not exceed three times the net total price (excluding V A T relevant Contract subject to a maximum of £50,000 in respect of any one claim or series of claims arising from the same event, and Orbex and Customer agree that such sum is reasonable in the context of Contracts actual or anticipated in the future.
10 Territory
Goods are only intended by Orbex for sale and use in the United Kingdom and Orbex does not warrant that such products are or will be fit or in any way suitable for use outside the United Kingdom unless otherwise agreed in writing by Orbex. Accordingly, unless so otherwise agreed, Orbex shall not be responsible in any way for the consequences of Goods exported outside the United Kingdom either by Customer or by purchasers from Customer and Customer shall hold Orbex harmless against all costs, liabilities, damages, losses and expenses arising from such export.
11 General
11.1 If Customer acts upon any advice given by Orbex, its employees agents or agents as to the storage or use of Goods not confirmed in writing, he does so entirely at his own risk and Orbex accordingly shall not be liable therefore.
11.2 Orbex shall not be liable to Customer for non-performance under a Contract if such non-performance is due to act of God, war, explosion, insurrection, civil commotion, government regulations,
labour disputes, flood, fire, tempest, accident or any other cause beyond the reasonable control of Orbex. A Contract shall be deemed suspended so long as its execution is prevented by such causes and Orbex shall deliver and Customer shall accept delivery in the regular course as soon as practicable after such causes have ceased to prevent such delivery.
11.3 Any communication relating to a Contract shall be binding if sent by either party to the address of the other party stated overleaf (or as later notified in writing) by mail, facsimile transmission or electronic mail.
11.4 These Terms and Conditions shall be governed by and construed in accordance with English law.
