Purchase Orders
Terms and Conditions

1. Definitions

1.1 In these terms and following words have the following meanings: “MS3” MS3 Networks Ltd (registered in England with number 08190151); “Contract” an Order for the purchase of Equipment and/or Services subject to these terms and condition together with the Specifications; “Good Industry Practice” the exercise of that degree of skill, care and diligence which would ordinarily be expected from a skilled and experienced person providing such Equipment or Services under a Contract; “Order” a MS3 purchase order incorporating these Terms and any Specification which indicates MS3’s offer to purchase the Equipment and/or Services from the Supplier; “MS3 Specification” the specification/description/scope of works referred to on the Order which describes the Equipment and/ or Services required including any plans, drawings or data; “Equipment” means the equipment agreed in the Contract to be purchased by MS3 from the Supplier MS3 will have the right to re-sell the Equipment to its customer where the Equipment is purchased for resale; “Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get up, rights in good will 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 such rights, and all similar or equivalent rights or forms of protection in any part of the world; “Legislation” all Acts of Parliament and statutory regulations, instruments or orders and code of practice and all applicable UK laws, directives and other legislation as any of the same may be amended or replaced from time to time; “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 MS3 or otherwise referred to in the Order; “Use” in relation to the Software, includes the right to use the Software on the Equipment and any back-up or standby equipment, to take such copies as are necessary for its operation in the manner contemplated by MS3 and otherwise referred to in the Order, MS3 will have the right to sub-license the Use of the Software to its customer where the Equipment is purchased for resale; “Price” the price payable to MS3 in consideration for the Equipment and/or Services as specified in the Order; “Services” the services (including any part thereof) described in an Order; “Supplier” the supplier of the Equipment and/or Services who indicated their acceptance of the Contract by accepting the Order; “Specifications” the MS3 Specification or the specification of the Equipment and/or Services provided by the supplier and agreed with MS3; “Terms” these terms and any additional terms agreed in writing between MS3 and the Supplier.

1.2  Any reference in these Terms to a statute or a provision of a statute will be construed as a reference to that statute or provision as amended re-enacted or extended and includes any relevant subordinate legislation in force at the relevant time.

1.3 In these Terms where the context so admits: “person” includes a firm and any entity having legal capacity; any term importing gender will include any gender; any term importing the singular includes the plural and vice versa. Use of the word “includes”, “including” or similar is illustrative only and does not limit the meaning of the word or words preceding it.

1.4 In relation to the Contract, the order of precedence of the documents shall be i. the Order; then ii. These Terms and then; iii. The Specification.

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2. Basis of Purchase

2.1 These Terms are the only Terms upon which MS3 is prepared to contract with the Supplier and they govern the Contract to the entire exclusion of all other terms and conditions including but not limited to any terms and conditions contained in the Suppliers’ packing/delivery note, order acceptance and/or invoice.

2.2 No variation or addition to the Contract will be effective unless agreed in writing between the duly authorized representatives of the parties.

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3. Equipment and Services

3.1 The quantity, quality and description of the Equipment and/or Services will, subject to these Terms, be as specified in the Order.

3.2 The Supplier will manufacture, package and deliver the Equipment and/or supply the Services in accordance with these Terms, Goo Industry Practice and all applicable laws and regulations and obtain all necessary licenses and consents. The Supplier shall also notify MS3 as soon as it becomes aware of any health and safety hazards or issues which arise in relation to the Equipment and/or Services.

3.3 The Supplier will meet any performance/delivery dates in respect of the Equipment and/or Services specified in the Order and the Supplier will allocate sufficient resources to the delivery of the Equipment and/or Services to enable it to comply with this obligation. If the Supplier fails to do so MS3 may (without prejudice to any other rights its may have);

3.3.1 terminate the Contract in whole or part without liability to the Supplier

3.3.2 refuse to accept any subsequent performance of the Services and/or delivery or the Equipment that the supplier attempts to make;

3.3.3 purchase substitute Equipment and/or Services elsewhere;

3.3.4 hold the Supplier accountable for any loss and additional costs incurred by MS3; and

3.3.5 have refunded by the Supplier all sums previously paid by MS3 to the Supplier under the Contract.

3.4 The Supplier will;

3.4.1 co-operate with MS3 at all times when carrying out its responsibilities under the Contract;

3.4.2 provide key personnel for the performance of the Services;

3.4.3 procure the exclusive availability of the Supplier’s team to provide the Services on such days and at such time as MS3 may reasonably require;

3.4.4 allow MS3 to inspect and test the Equipment during manufacture, processing or storage prior to dispatch, and the Supplier will provide MS3 with the facilities necessary to do so. If within sever (7) days of inspection or testing, MS3 informs the Supplier that the Equipment does not comply in all respects with the Contract, then the Supplier will take such steps as MS3 reasonably required to ensure compliance. In respect of the inspection after delivery, Term 7.6 shall apply.

3.4.5 Equipment will be marked by the supplier in accordance with the instructions by MS3 or the carrier and be packed and secured properly to ensure they reach their destination undamaged.

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4. Intellectual Property Rights and Confidentiality

4.1 The Supplier assigns to MS3, with full title guarantee and free from all third party rights, the Intellectual Property Rights and all other rights in the Equipment or the Services where such request is made in the Specification.

4.2 Neither the Supplier’s name not their Trademark is to appear on the Equipment which are made to MS3 Specifications without MS3’s prior permission.

4.3 All Intellectual Property Rights in any MS3 Specification, materials, documentation, equipment, tools, drawings and data are the exclusive property of MS3. The Supplier will not disclose to any third party or use such MS3 Specification except to the extent necessary to perform its obligations under the Contract or to comply with the law. The Supplier shall return all copies of any such material to the Customer immediately on the Customer’s first written request.

4.4 The Supplier shall, promptly at MS3’s request, do or procure to be done all such further acts and things and the execution of all such other documents as MS3 may from time to time require for the purpose of securing for MS3 the full benefit of the Contract, including all right, title and interest in and to the in and to the intellectual property rights and all other rights assigned to MS3 in accordance with condition 4.1.

4.5 Each Party undertakes that it shall not use the other Party’s confidential information for any purpose other than to perform its obligations under this Contract and that at any time for a period of two years following this Contract, it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party or of any member of the group of companies to which the other Party belongs, except to its employees, officers, representatives or advisors who need to know such information for the purposes of carrying out the party’s obligations under this agreement or where a party is required so to do to comply with, court order or with any governmental or regulatory authority.

4.6 This clause 4 shall survive the termination of the Contract, however arising.

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5. Price

The Price will, unless otherwise stated, be in pounds sterling and shall be exclusive of VAT and inclusive of all Supplier expenses or any charges for packing, packaging, shipping, carriage, insurance and delivery of the Equipment and any duties, imports or levies other than VAT.

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6. Terms of Payment

6.1 The Supplier may invoice MS3 on or after delivery of the Equipment in accordance with Clause 9 or performance of the Services or where specified in the Order in accordance with the Order. Invoices will quote the Order number and will state the amount due in Sterling.

6.2 MS3 will pay correct invoices by the end of the month following the month of receipt of the invoice, provided that the Equipment and/or Services that have been invoiced have been provided in accordance with the Contract. MS3 may set off against and deduct from the Price any sums owed to MS3 by the Supplier. Interest on any outstanding payments shall be charged daily at a rate equal to the base rate of Barclays Bank PLC from time to time.

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7. Delivery and Provision of Equipment and/or Services

7.1 The Equipment will be delivered and/or the Services will be performed at the site on the date or within the period agreed in accordance with the Order in either case during MS3’s business house, (Monday to Friday 0900hrs to 1700hrs excluding public holidays) unless agreed otherwise.

7.2 Time of delivery of the Equipment and/or provision of the Services is of the essence of the Contract. In the event that MS3 accepts late delivery of any Equipment or the late performance of any Services, the Price for the relevant Equipment or Services shall be reduced by 2% for each week that delivery or performance has been delayed, subject to a maximum of 10%.

7.3 A packing note quoting the Order number must accompany each delivery or consignment or Equipment and must be displayed prominently.

7.4 If Equipment and/or Services are to be provided in installments the Contract will be treated as a single contract and not severable.

7.5 MS3 will be entitled to reject any Equipment provided which is not in accordance with the Contract. On rejecting any Goods, MS3 will give the Supplier notice or rejection and will return the Equipment at the Supplier’s risk and expense.

7.6 The Supplier will on delivery provide MS3 with any instructions or other information required to enable MS3 to accept delivery and make full and proper use of the Equipment and/or the Services.

7.7 The signature of any office or employee of MS3 given on any delivery note or similar documentation will be evidence only of the number or packages received. It is not evidence that the correct quantity has been delivered or that the Equipment delivered are in good condition or that MS3 accepts any changes to the terms of the Contract that may be included on the delivery note.

7.8 All Orders are placed by MS3 on condition that spare parts and identical replacements for the Equipment will be available to MS3 at fair and reasonable prices for a period of 3 years from the date of the Order. Where the Supplier becomes aware of such Equipment or Spare parts being made obsolete the Supplier will immediately notify MS3 and shall advise MS3 as soon as they become aware of the possibility of purchasing any obsolete Equipment or spare parts at any “last time buy” opportunity and shall provide MS3 with reasonable assistance in this regard.

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8. Software License

With respect to any Software or any works produced by the Services, the Supplier grants MS3 an irrevocable, perpetual, royalty free license to Use such software with the relevant Equipment or works and, in the event MS3 reselling the Equipment or works, the Supplier authorizes MS3 to grant an equivalent license to Use the Software to any person purchasing the Equipment and/or works from MS3.

9. Risk and Property

9.1 Risk of damage to or loss of the Equipment will pass to MS3 upon physical delivery in accordance with the Contract. Ownership of the Equipment will pass with full title guarantee to MS3 upon delivery unless payment for the Equipment is made prior to delivery, when it will pass to MS3 once payment has been made and the Equipment have been appropriated to the Contract.

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10. Network Security

10.1 You shall inform MS3 within 48 hours of any security incidents that may of comprised or contributed to a security compromise, or whether you identify an increased risk of such a compromise occurring. This includes but is not limited to, incidents in the supplier’s development network or corporate network.

10.2  Where applicable and directed by MS3 you will support investigations of any incidents that cause or contribute to the occurrence of a security compromise.

10.3 MS3 shall have the right to control members of third party administrator personnel who are involved in the provision of the administrator services, this includes access to ensure that any member of personnel no longer has access to the MS3 network.

10.4 MS3 require you to implement technical controls to prevent your network adversely affecting theirs.

10.5 You are required where applicable to implement the following;

10.6.1 Logical separation within your network to segregate customer data and networks.

10.6.2 Separation between all management environments used for MS3 and other provider networks.

10.6.3 Technical controls to limit the potential for users or systems to negatively impact more than one provider

10.6.4 Logically-independent privileged access workstations per provider.

10.6.5 Independent administrative domains and accounts per provider.

10.7 MS3 require you to monitor and audit all activities of their staff when accessing MS3’s network.

10.8 MS3 require access to all logs relating to the security of its network including but not limited to logs in relation to access to into its network.

10.9 If you provide equipment to MS3 you are required to share a signed (by an appropriate member of staff with authority to sign such documents) ‘Security declaration’  which should include the following;

10.10 How you produce secure equipment

10.11 How that equipment’s security is maintained throughout it’s lifetime

10.12 If you provide equipment to MS3 you are required to provide us with up to date guidance on how the equipment should be securely deployed. Should this guidance change throughout the term of this agreement it is your responsibility to update MS3 on any changes.

10.13 If you provide hardware to MS3 you are expected to provide details (product and version) of major third party components and dependencies, including and open source components and the period and level of support.

10.14 If you are a hardware supplier you are required to deliver critical security patches separately to feature releases, to maximise the speed at which the patch can be deployed.

10.15 You are required to provide MS3 with details of security issues as appropriate to support the identification and reduction of the risks of security compromises occurring in relation to public electronic communications network or public electronic communications service as a result of things done or omitted by you.

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11. Warranties and Liability

11.1 The Supplier warrants to MS3 that the Equipment will:

11.1.1        be of satisfactory quality (within the meaning of the Sale and Supply of Goods Act 1994) and fit for any purpose held out by the Supplier or made know to the Supplier when the Order is placed;

11.1.2 be free from defects in design, material and workmanship and will remain so for a period of not less than 18 months after delivery;

11.1.3 correspond with any Specification, any sample and any description in the Order;

11.1.4 comply with all applicable laws and all applicable harmonised UK standards or if such standards do not exist with the latest applicable specifications of the International Standards organisation or the British Standards Institution;

11.1.5 benefit from any third party warranties available for the Supplier to pass on to MS3;

11.2 The Supplier warrants to MS3 that the Equipment and Services will be supplied in accordance with Good Industry Practice and will comply with all applicable legislation and regulations and Specifications.

11.3 Where MS3 grants Supplier access to MS3’s premises and/or that of MS3’s customer then the Supplier, Supplier’s servants, agents and/or third parties retained by Supplier will comply with all current health, safety and environmental legislation and/or MS3’s and MS3’s end-user’s health, safety and environmental policies.

11.4 Without prejudice to any other remedy in law under this Contract if any Equipment and/or Services are not supplier in accordance with the Contract, then MS3 may:

11.4.1 require the Supplier to supply replacement Equipment or to re-supply the Services withing 7 days;

11.4.2 treat the Contract as repudiated by the Supplier’s breach, claim damages and require the repayment of any part of the Price previously paid; or

11.4.3 require the Supplier to pay to it any costs, losses, damages or expenses suffered by MS3 as a consequence of such failure including any costs which arise as a result of MS3 acquiring replacement Equipment and/or Services.

11.5 The Supplier indemnifies MS3 on demand and will keep MS3 fully and effectively indemnified from and against all claims, demands, actions, proceedings, liabilities, losses, damages, costs and expenses awarded against or incurred or paid by MS3 as a result of or in connection with;

11.6. Any claim that the Equipment infringes, or their importation or use of infringes the intellectual property rights of any third party: and/or

11.7 Any liability under Consumer Protection Act 1987 or any other legislation relating to health and safety or product liability, in respect of the Equipment other than any liability that arises due to a negligent act or omission.

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12. Liability

12.1 Nothing in these Terms shall limit either parties’ liability for fraud or for death or personal injury resulting from its own negligence or that of its employees, sub-contractors or agents.

12.2 Neither party will in any circumstances be liable to the other in contract, tort (including negligence) or otherwise for any loss of business; loss of data; loss of profits; loss of goodwill; loss of anticipated savings even when advised of the possibility; loss of revenue or any indirect or consequential losses, liabilities or costs.

12.3 Both parties accept liability in respect of damage to the other tangible property resulting from its or its employees’ negligence up to an aggregate of £2,000,00 (two million pounds).

12.4 Other than in respect of clause 11.1 and 11.2 and subject to clause 11.3 each party’s maximum aggregate liability in contract, tort, negligence or otherwise arising out of or in connection with, these Terms will in respect of any and all acts, omissions, defaults or events be limited in aggregate to the greater of:

a) £250,000; or

b) the price paid by MS3 under this Contract

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13. Termination

13.1 The parties may terminate the Contract by giving notice to the other at any time:

13.1.1 if a party becomes unable to, or is deemed unable to, pay its debts within the meaning of Section 123 Insolvency Act 1986, or becomes insolvent or a trustee, receiver, administrative receiver or similar is appointed in respect of all or any part of its assets or it becomes subject to ant administration order or it convenes a meeting of its creditors or a proposal is made for a voluntary arrangement or any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors or the parry becomes bankrupt or a meeting is convened for the purpose of considering a resolution (or other steps are taken) for the winding up of that party or the giving or a notice or appointment or notice of intention to appoint an administrator or liquidator (otherwise than for the purpose of a bona fide solvent, amalgamation or reconstruction) ; or

13.1.2 if the other party ceases, or threatens to cease, to carry on business; or

13.1.3 if there is a breach of the Contract and, if such breach is capable of remedy, has failed to remedy the breach within 28 days of notification of the breach or if such breach is not capable of remedy; or

13.1.4 MS3 might terminate at any time on giving 30 days’ prior written notice to the Supplier.

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14. General

14.1 The Supplier will shall not assign or otherwise transfer any of its rights or obligations under the Contract. The Supplier will not sub-contract any of its obligations under the Contract without the prior written consent of MS3

14.2 Any notice must be in writing and sent by first class post addressed to the Chief Financial Officer at the relevant party’s registered office and shall be deemed to be delivered on the second working day after the date of delivery.

14.3 Waiver by either party of any breach of the Contract will not be deemed to be a waiver of any subsequent breach. A person who is not a party to the Contract is not entitled to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.

14.4 If any provision of the Contract is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract and the remainder of the provision in question will not be affected. MS3’s rights and remedies under the Contract are cumulative and are not exclusive of any other rights or remedies provided by law.

14.5 Termination of the Contract shall not prejudice the rights and liabilities of either party which accrued prior to such termination or arise as a result of termination. Any provisions of the Contract that are expressed to or are implicitly to survive shall survive the ending of the Contract for any reason.

14.6 The Contract is governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts.

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