Millgate Ltd – Standard Terms and Conditions of Sale
1. Application of Conditions
1.1 These Conditions apply to all sales of goods, software, services and third-party products and/or services by Millgate Ltd (“the Seller”) to any purchaser (“the Buyer”), whether pursuant to a quotation, offer, or order accepted by the Seller.
1.2 These Conditions shall supersede and override any other terms proposed by the Buyer unless such terms are expressly agreed in writing by the Seller.
2. Interpretation
2.1 Definitions:
- “Goods” means the goods (including any installment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions; which shall include (but not be limited to) hardware, software, services (including licences), third-party products, and any related services supplied by the Seller.
- “Software” means any proprietary or third-party software, including licences, updates, and associated documentation.
- “Third-Party Products” means goods and/or services not manufactured or developed by the Seller but supplied under the Seller’s agreement with the Buyer.
“Business Day” means any day other than a Saturday, Sunday or bank holiday in England when banks in London are open for business;
“the Buyer” means the person who accepts a quotation or offer from the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller;
“the Contract” means the contract for the purchase and sale of the Goods under these terms and conditions;
“these Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;
“the Delivery Date” means the date on which the Goods are to be delivered as stipulated in the Buyer’s order and accepted by the Seller;
“month” means a calendar month;
“the Seller” means Millgate Ltd a company registered in England under the Company Reg Number 03229619 and includes all employees and agents of Millgate Ltd.
“writing” includes any communications effected by telex, facsimile transmission, electronic mail or any comparable means.
2.2 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re- enacted or extended at the relevant time.
2.3 The headings in these Conditions are for convenience only and shall not affect their interpretation
(Other definitions remain unchanged.)
3. Basis of Sale
3.1 The Seller’s representatives are not authorised to vary these Conditions unless confirmed in writing.
3.2 Orders for software or third-party products are subject to the terms of the relevant 3rd party licence agreement or third-party agreement, which the Buyer agrees to be bound by upon purchase.
3.3 Orders are binding upon written acceptance, delivery, or invoicing by the Seller, whichever shall be the soonest.
4. Orders and Specifications
4.1 Orders for software or third-party products are non-cancellable and non-returnable once accepted, unless otherwise agreed in writing by the Seller.
4.2 The Seller may substitute software or third-party products with equivalent alternatives if and when required by the manufacturer or licensor.
4.3 The Seller reserves the right to make any changes in the specification of the goods which are required in order to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
4.4 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and where the Buyer cancels such order, the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation.
4.5 Goods cannot be returned without the Seller’s consent in writing, and any returns granted is subject to the Seller’s standard return of goods policy which is available on request or on the website (www.millgate.co.uk).
5. Price
5.1 Prices for hardware, software, services and third-party products are subject to change without prior notice and shall be valid only for such period and duration expressly stated in the quotation and/or order form.
5.2 All software licences are subject to the terms of the relevant vendor and/or software provider and may be subject to recurring charges or renewal fees. It is the responsibility of the Buyer to pay such charges and fees.
5.3 The price is exclusive of any applicable value added tax excise, sales or taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Buyer shall be additionally liable to pay to the Seller.
6. Payment
6.1 Payment terms apply equally to hardware, software, services and third-party products.
6.2 The Seller reserves the right to withhold delivery or activation of software licences until such time when full payment is received and all outstanding charges are paid.
6.3 The Buyer shall pay the price of the Goods (less any discount or credit agreed to by the Seller, but without any other deduction credit or set off) within 30 days of the date of the Seller’s invoice or otherwise in accordance with such credit term as may have been agreed in writing between the Buyer and the Seller in respect of the Contract. Payment shall be made on the due date notwithstanding that delivery may not have taken place and/or that the property in the Goods has not passed to the Buyer.
6.4 All payments shall be made to the Seller as indicated on the form of acceptance or invoice issued by the Seller.
6.5 The Seller is not obliged to accept orders from any customer or buyer who has not supplied the Seller with references satisfactory to the Seller; if at any time the Seller is not satisfied as to the creditworthiness of the Buyer it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event no further goods will be delivered to the Buyer.
7. Delivery
7.1 Delivery of software may be via physical media or electronic download.
7.2 Delivery of third-party products is in usual circumstances delivered directly from the manufacturer or distributor.
7.3 The Delivery Date is approximate only and shall be subject to availability and lead times from the manufacturer or distributor. Time for delivery shall not be of the essence unless agreed otherwise by the Seller in writing. The Goods may be delivered by the Seller in advance of the Delivery Date upon giving reasonable notice to the Buyer.
7.4 If the Buyer fails to take delivery of the Goods or any part thereof on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Seller shall be entitled, upon giving written notice to the Buyer, to store or arrange for the storage of the Goods, costs of which shall be borne by the Buyer, and notwithstanding the provision of Condition 10.1 of these Conditions, risk in the Goods shall pass to the Buyer upon commencement of such storage, and delivery shall be deemed to have taken place.The Buyer shall pay to the Seller all reasonable costs and expenses incurred by the Seller resulting from the Buyer’s failure to take delivery as outlined in this Clause 7.4, including storage and insurance charges arising from such failure.
8. Non-Delivery
8.1 The Seller is not liable for delays in delivery of hardware, software, services or third-party products caused by any 3rd party vendor, licensing issues and/or courier issues.
9. Inspection/Shortage
9.1 The Buyer must inspect all hardware, software, services and third-party products upon delivery and report any discrepancies within 7 days of the date of delivery.
9.2 In all cases where defects and/or shortages are complained of by the Buyer, the Seller shall be under no liability whatsoever in respect thereof unless an opportunity to inspect the Goods is promptly supplied to the Seller, such opportunity to inspect occurring before any use is made thereof or any alteration or modification is made thereto by the Buyer.
9.3 Subject to condition 9.2 the Seller shall, at its discretion, make good any shortage in the Goods and where appropriate replace any goods damaged in transit as soon as it is reasonably practicable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage.
10. Risk and Retention of Title
10.1 Risk in hardware, software, services and third-party products shall pass to the Buyer upon delivery.
10.2 Title to any software shall remain with the licensor. The Buyer receives only a licence to use the software under the vendor’s terms for the duration of the license period.
10.3 Until payment has been made to the Seller in accordance with these Conditions and title in the Goods has passed to the Buyer, the Buyer shall be in possession of the Goods as bailee for the Seller and the Buyer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by and that of the Seller and the Buyer shall insure the Goods against all reasonable risks.
10.4 In the event that the Buyer sells or transfers the Goods to a third party before legal and beneficial title has passed to the Buyer pursuant to these Conditions, the proceeds of the sub-sale or transfer (or such proportion as is due to the Seller) shall be held by the Buyer on behalf of the Seller. The Buyer shall ensure that such monies are held separately from, and are in no way mixed with, any other monies or funds, and that all monies held on the Seller’s behalf are identified as belonging to the Seller.
11. Assignment
The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
The Seller may assign or transfer the Contract or any part of it without the prior written consent of the Buyer.
12. Defective Goods
12.1 If any Goods (including hardware, software, or services) are materially defective upon delivery, and the Buyer either lawfully refuses delivery or signs for them “condition and contents unknown” and subsequently notifies the Seller of such defectiveness, provided such notice is provided in writing within three (3) business days of delivery, the Seller shall, at its sole discretion:
- 12.1.1 Replace the defective Goods within seven (7) days of receiving the Buyer’s notice; or
- 12.1.2 Refund the price paid for the defective Goods.
The remedies set out in this Clause 12.1 shall be the sole remedy for the Buyer and the Seller shall have no further liability for such defective Goods. The Buyer shall not be entitled to reject the Goods if delivery was accepted or where notice of defective Goods was not given within the timeframes stipulated in this Clause 12.1.
12.2 No Goods may be returned without the Seller’s prior written consent. If such consent is granted by the Seller and the Seller confirms that the Goods were defective in quality or where such defective condition not apparent on inspection, the Seller shall either:
- Replace the Goods free of charge; or
- at the Seller’s discretion, refund to the Buyer the cost of the Goods or issue a credit note for the value of the Goods to the Buyer.
12.3 The Seller shall not be liable for defects arising from fair wear and tear, misuse, negligence, failure to follow instructions, unauthorised modifications, and/or any act or omission by the Buyer or third parties.
12.4 Except as expressly stated in these Conditions, and unless the Goods are sold under a consumer sale, all warranties, conditions, or terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.5 Where the Goods are sold under a consumer sale, the Buyer’s statutory rights shall remain unaffected.
12.6 Except in cases of death or personal injury caused by the Seller’s negligence, liability for which cannot be excluded, or as otherwise provided, the Seller shall not be liable for any direct or indirect loss (including loss of profit or special damages) arising from the supply, use, and/or resale of the Goods.
12.7 The Buyer is responsible for ensuring that the use or resale of the Goods complies with all applicable laws and any instructions provided by the Seller or relevant authorities. The Buyer shall indemnify the Seller against any loss or damage resulting from non-compliance.
13. Buyer’s Default
13.1 If the Buyer fails to make payment by the due date, the Seller may, at its absolute discretion:
- 13.1.1 Cancel the order and/or suspend further deliveries;
- 13.1.2 Allocate any received payment to outstanding invoices as it sees fit;
- 13.1.3 Charge interest at 3% per annum above the National Westminster Bank plc base rate until full payment is received.
13.2 The Seller may terminate and/or suspend the Services or any delivery of Goods, if:
- 13.2.1 The Buyer breaches any of the terms of this Conditions;
- 13.2.2 The Buyer becomes insolvent, bankrupt, or enters into any arrangement with your creditors or goes into administration;
- 13.2.3 A receiver or administrator is appointed over the Buyer’s assets;
- 13.2.4 The Buyer ceases or threatens to cease trading;
- 13.2.5 The Seller reasonably believes any of the above is likely to occur.
13.3 If clause 13.2 applies, the Seller may cancel the contract or suspend deliveries without liability. Any unpaid amounts shall become immediately due.
14. Limitation of Liability
14.1 Nothing in this Agreement limits or excludes:
(a) liability for deliberate default;
(b) Liability for death or personal injury caused by negligence to the extent preserved by section 2(1) of the Unfair Contract Terms Act 1977;
(c) liability for fraud or fraudulent misrepresentation;
(d) liability for breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982;
(e) any liability that cannot legally be limited.
Subject to clauses 7, 8, and 13 and except where specified otherwise, the Seller’s total liability to the Buyer under this contract (including for acts or omissions of its personnel) shall be limited to a sum [a sum equivalent to the fees paid by the Buyer in the twelve (12) months preceding the date the claim first arose. The Seller shall not be liable for economic loss, loss of profit, loss of business opportunity, business interruption, loss of use or corruption of software, data or information, loss of or damage to goodwill, or indirect/consequential damages.
14.2 All implied terms (except those under section 12 of the Sale of Goods Act 1979) are excluded to the fullest extent permitted by law.
15. Confidentiality, Publications & Endorsements
15.1 Each party shall keep the other party's Confidential Information secret and confidential and shall not:
(a) use that Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this contract (Permitted Purpose); or
(b)disclose that Confidential Information in whole or in part to any person, except as permitted by Clause 15.2.
15.2 Each party may disclose the other party's Confidential Information:
(a) to those of its employees, officers, representatives, independent contractors, subcontractors and advisers who need to know that information for the Permitted Purpose (Representatives). Each party shall ensure that its Representatives comply with confidentiality obligations which are substantially equivalent to those in this Clause 15; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3 The provisions of this Clause 15 shall continue to apply for indefinitely after termination or expiry of this contract and shall survive termination of the contract. For the purposes of this contract, ‘Confidential Information’ shall mean all information (however recorded or preserved) that one party (discloser) discloses or makes available to the other party (recipient) in connection with this contract and which would be regarded as confidential by a reasonable business person and includes any information relating to each party’s operations, products, processes, trade secrets or know-how. It does not include information that (i) is or becomes generally available to the public (other than as a result of the recipient's breach); (ii) was available to the recipient on a non-confidential basis before disclosure by the discloser; (iii) was, is or becomes available to the recipient on a non-confidential basis from a person who, to the recipient's knowledge, is not bound by a confidentiality agreement with the discloser or otherwise prohibited from disclosing the information to the recipient; (iv) is developed by or for the recipient independently of the information disclosed by the discloser; or (v) the parties agree in writing is not confidential or may be disclosed.
16. Communications
16.1 All communications must be in writing and delivered by hand, post, fax, or email to the relevant party’s registered address or notified contact.
16.2 Communications are deemed received:
- 16.2.1 Two business days after posting;
- 16.2.2 On the day of hand delivery;
- 16.2.3 On the day of transmission if sent before 4:00 pm on a business day.
17. Force Majeure
17.1 Neither party shall be liable for failure to perform its obligations under this Contract where such failure is due to events beyond their control including:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination, or sonic boom;
(e) any law or action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the staff of the party seeking to rely on this clause or those of its subcontractors);
17.3 Each party remains liable for breaches and enforcement costs.
17.4 If force majeure lasts more than six months, the contract may be terminated unless otherwise agreed.
18–21. General Provisions
18. Waiver
A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.:
19. Severance:
If any provision or part-provision of this contract is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of this contract.
20. Third Party Rights
Unless it expressly states otherwise, this contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
21. Variation
No variation of this contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
21. Governing Law
This contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales and parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
