1. INTERPRETATION
1.1. In these conditions:
‘Company’ means Affinity Technology Ltd of 8 Viceroy House, Mountbatten Business Centre, Millbrook Road East, Southampton SO15 1HY UK.
‘Conditions’ means the standard conditions of sale set out in this document and includes any Special Conditions.
‘Contract’ means the contract for the sale and purchase of the Goods and/or Services;
‘Goods’ means all or any products (including any instalment of the Goods or any part of them) which the Company is to supply in accordance with
these Conditions and includes Software;
‘Intellectual Property’ means all inventions, patents, utility models, design (both registered and unregistered and including rights relating to semiconductor
topographies), database rights, copyright and trade marks (both registered and unregistered), together with all rights to the grant of and
applications for the same and including all similar or analogous rights and all other rights in the nature of intellectual and industrial property
throughout the world and all future rights of such nature;
‘Order Acknowledgement’ means the acknowledgement of an order in Writing (including an email issued by the Company confirming acceptance of
an order placed on the Website) issued by the Company pursuant to Condition 2.2.1;
‘Purchaser’ means the business (company, other legal entity, partnership or sole trader) whose order for the Goods and/or Services is accepted by
the Company;
“Quotation” means a quotation supplied to a prospective Purchaser in response to a request;
“Services” means any services to be supplied by the Company or a third party arranged by the Company pursuant to the Contract;
“Software” means proprietary software of either the Company or third parties.
“Special Conditions” means any additional terms agreed between the parties and incorporated into the Contract in writing.
“Special Goods” means any Goods created or modified especially for the Purchaser
‘Special Order’ means any order including Special Goods;
“Tangible Goods” means Goods which are not Software;
“Website” means the Company’s website at http://www.affinitytech.co.uk or any other website operated by or for the Company providing the facility for
Purchasers to purchase Goods;
‘Writing’ includes facsimile transmission, e-mail, and other comparable means of communication and includes communications to the Company
sent via the Website;
1.2. Any references in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or
extended at the relevant time.
1.3. Words denoting the singular number only, include the plural and vice versa.
1.4. The headings used in these Conditions are for convenience only and shall not affect the construction thereof.
1.5 Affinity Technology Limited is a registered company in England and Wales. The Company registration number is 11799159. The Company’s registered VAT number is 317855578.
Support and Hardware Sales
2. BASIS OF SALE
2.1. The Conditions shall:
2.1.1. apply to and be incorporated into the Contract; and
2.1.2. prevail and take precedence over any terms or conditions (even when such terms or conditions are themselves expressed to prevail)
contained, or referred to, in the Purchaser’s purchase order, confirmation of order, acceptance of a quotation or specification, or any inconsistent
terms or conditions implied by law, trade custom, practice or course of dealing.
2.2. The Purchaser’s purchase order or the Purchaser’s acceptance of a Quotation constitutes an offer by the Purchaser to purchase the things
specified in it subject to the Conditions. No offer placed by the Purchaser shall be accepted by the Company other than:
2.2.1. by an Order Acknowledgement issued by the Company; or
2.2.2. (if earlier) by the Company commencing to provide the Goods and/or Services, when the Contract will be established. The Purchaser’s
standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the supply
of the Goods.
2.3. Quotations are given by the Company on the basis that no agreement shall come into existence except in accordance with Condition 2.2. Any
Quotation is valid for a period of 30 days from its date (unless stated differently in the Quotation), provided that the Company has not previously
withdrawn it.
2.4. No variation to these Conditions shall be binding unless agreed in Writing between authorised representatives of the parties.
2.5. In entering into the Contract, the Purchaser acknowledges that it does not rely on any representations by the Company relating to the Goods or
Services which are not confirmed in writing.
2.6. Any error or omission on the Website, in any sales literature, Quotation, price list, Order Acknowledgement, invoice or other document or
information issued by the Company may be corrected and shall not be binding on the Company.
2.7. The Goods and/or Services are not of a type normally supplied to consumers and the Company will only supply those buying for business
purposes. By purchasing from the Company, the Purchaser confirms that the purchase is being made for business purposes.
3. ORDERS AND SPECIFICATIONS
3.1. These Conditions shall form part of any Quotation or order relating to the design, manufacture and/or supply of any Goods and/or Services by
the Company and of any Contract arising therefrom.
3.2. The Purchaser shall be responsible to the Company for ensuring the accuracy of any order (including any applicable specification or design)
submitted by the Purchaser, and for giving the Company any necessary information relating to the Goods and/or Services early enough to enable
the Company to perform the Contract in accordance with its obligations.
3.3. The quantity and description of the Goods and/or Services to be supplied shall be those set out in the Order Acknowledgement.
3.4. The Company reserves the right (but not so as to be obliged to do so) to make any changes in the quality or specification of the Goods which
are required to conform with any applicable UK or other safety or statutory requirement or which do not materially impair the quality or performance
of the Goods. The Company shall not do so in relation to a Special Order without the consent of the Purchaser.
4. SPECIAL GOODS, ALTERATIONS AND MODIFICATIONS
4.1. Where the Purchaser instructs the Company to create Special Goods for the Purchaser or to make some alteration or modification to the
Goods, the Company will accept such instructions and use reasonable endeavours to carry the same out but on the following conditions:
4.1.1. The Company in following such instructions is deemed to have made no representation and gives no warranty as to whether the Goods can
be successfully made, altered or modified in accordance with the Purchaser’s instructions or whether they will perform as anticipated by the
Purchaser;
4.1.2. Any implied warranty or condition as to quality or fitness for purpose is excluded in relation to such Goods but the Company warrants that the
Goods will be made, altered or modified in accordance with the Purchaser’s specification for such Goods;
4.1.3. Notwithstanding the fact that such Goods may prove not to perform as anticipated the Purchaser shall, unless it is proven or self-evident that
they do not comply with the Purchaser’s specification, pay for the Goods in accordance with these conditions
5. NO POACHING
5.1. The Purchaser shall not during the term of the Contract, and for a period of six (6) months after its completion, solicit, recruit, engage or
otherwise employ or retain, on a full-time, part-time, consulting, or any other basis, any Company employee or sub-contractor whether or not said person has been assigned to perform tasks under the Contract. In the event such employment, engagement or consultation occurs, the Company
shall be entitled to receive from the Purchaser a commission of either (a) 50 percent of said person’s starting salary with the Purchaser if employed,
or (b) 50 percent of any fees paid to said person in the twelve months following the commencement of any engagement if otherwise engaged. In
the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment
will be due at the end of any month during which the person performed services for the Purchaser.
6. PRICES
6.1. The price of the Goods or Services shall be those quoted by the Company from time to time or where no price has been quoted as listed in the
Company’s published price list current at the date of acceptance of the order. Where the Goods are Special Goods, the price shall be as specified
in a Special Condition to the Contract.
6.2. An additional charge may be made for delivery or for travel to provide Services.
6.3. All prices contained in Quotations, Order Acknowledgements or elsewhere are subject to revision as set out below.
6.4. Subject to Conditions 6.1 to 6.3 all prices quoted unless otherwise provided are valid for thirty days only. The Company reserves the right, by
giving notice to the Purchaser at any time before delivery, to increase the price of the Goods and/or Services to reflect any increase in the cost to
the Company which is due to:
6.4.1. any change in delivery dates, quantities or specifications for the Goods which is requested by the Purchaser, or any delay caused by any
instructions of the Purchaser or failure of the Purchaser to give the Company adequate information or instructions.
6.4.2. any factor beyond the control of the Company including but without limitation exchange rates, currency regulations, increase or imposition of
taxes or duties increase in the cost of labour and materials or increases in the cost of Goods sourced from third parties.
6.5. Prices quoted are exclusive of any applicable value added tax, or any other sales tax, or duty or import or export duty, or brokers fees or
clearance fees which may be chargeable (whether or not required to be paid to enable the Goods to be shipped from one country to another) which
the Purchaser shall be additionally liable to pay to the appropriate third party or to the Company.
6.6. Where carriage, insurance, storage or other costs are incurred by the Company including for storage at the Company’s own premises in
consequence of any act or omission of the Purchaser, its servants or agents or as a result of any special requirements or stipulations of the
Purchaser not otherwise provided for in the Contract, they shall be payable by the Purchaser as if they formed part of the price.
6.7. In the event of the Purchaser varying any agreed call-off rate, the Company reserves the right to charge a price appropriate to the changed calloff
rate.
7. PAYMENT
7.1. Unless credit terms have been agreed payment is required prior to delivery. Goods are not supplied on credit terms unless such terms have
previously been agreed in Writing by the Company. The Company reserves the right to withdraw any such credit terms at any time.
7.2. Where credit terms have been agreed:
7.2.1. Subject to any Special Conditions agreed in Writing between the Purchaser and the Company, the Company shall invoice the Purchaser for the
price of the Goods on or at any time after the Goods have been despatched for delivery to the Purchaser or the Purchaser has been informed that
they are ready for collection.
7.2.2. The Purchaser shall pay the price of the Goods (less any discount to which the Purchaser is entitled, but without any other deduction or set off)
within 30 days of the date of the Company’s invoice (“the due date”) unless otherwise agreed in writing by the Company notwithstanding that delivery
of the Goods may not have taken place and the property in the Goods has not passed to the Purchaser. The time of payment of the price shall be of
the essence of the Contract. Receipts for payment will be issued only upon request.
7.3. If the Purchaser fails to make any payment by the due date all of the Company’s invoices rendered (or to be rendered) to the Purchaser (whether
in respect of the Contract or any other contract between the Company and the Purchaser) shall become immediately due and payable to the
Company and without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
7.3.1. cancel the Contract or suspend any further deliveries to the Purchaser;
7.3.2. appropriate any payment made by the Purchaser to such of the Goods or Services (or the goods or services supplied under any other contract
between the Purchaser and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Purchaser); and
7.3.3. charge the Purchaser interest (both before and after any judgment) on the amount unpaid, at the rate prescribed by the Late Payment of
Commercial Debts (Interest) Act 1998 as varied from time to time, until payment in full is made.
7.4. All costs and expenses reasonably incurred by the Company in recovering monies due to it (including costs of any court case) will be charged to
and be payable by the Purchaser on a full indemnity basis.
8. DELIVERY
8.1. Delivery shall be made by the Company delivering the Goods to the Purchaser at the delivery address set out in the Order Acknowledgement.
8.2. Any dates quoted for delivery of the Goods are approximate only and the Company shall not be liable for any delay in delivery of the Goods
however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Company in Writing. The Goods may
be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Purchaser.
8.3. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any
one or more of the instalments in accordance with the Contract or any claim by the Purchaser in respect of any one or more instalments shall not
entitle the Purchaser to treat the Contract as a whole as repudiated.
8.4. If the Company fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the company’s reasonable control or
the Purchaser’s fault, and the Company is accordingly liable to the Purchaser, the Company’s liability for any loss, damage or expense incurred or
suffered by the Purchaser shall be limited to the price of the Goods not delivered.
8.5. If the Purchaser fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery
(otherwise than by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may:
8.5.1. store the Goods (at the risk of the Purchaser) until actual delivery and charge the Purchaser for the reasonable costs (including insurance) of
storage; or
8.5.2. terminate the Contract with immediate effect and resell the Goods at the best price readily obtainable and (after deducting all reasonable
storage and selling expenses) account to the Purchaser for the excess over the price under the Contract or charge the Purchaser for any shortfall
below the price under the Contract.
8.6. Where the Goods are exported the Purchaser shall be responsible for complying with any legislation or regulations governing the importation of
Goods into the country of destination and for the payment of any duties.
8.7. If any licence or consent of any government or other authority shall be required for the acquisition, carriage or use of the Goods by the Purchaser,
the Purchaser shall obtain it at its own expense and if required by the Company produce evidence on demand that it has done so. Failure to obtain it
shall not entitle the Purchaser to withhold or delay payment of the price. Any additional expenses or charges incurred by the Company resulting from
such failure shall be for the Purchaser’s account.
8.8. Call-off orders must be completed within one year from the date of the first delivery. Only in exceptional circumstances will the Company agree to
delay delivery of an order beyond the date agreed in the Order Acknowledgement. The Company shall have sole discretion in determining whether
exceptional circumstances exist and whether to agree to delay delivery and reserves the right to pass on to the Purchaser any extra costs involved.
8.9. Any claim by the Purchaser in respect of any alleged short delivery or discrepancy in delivery must be notified to the Company by notice in
Writing by the Purchaser within 7 days of the receipt of the Goods or in the case of non-delivery of the Goods or a consignment of the Goods within 7
days of the delivery date stated in the Contract. The Company will not accept any claim in respect of any alleged discrepancy after this time.
9. RISK AND TITLE
9.1. Risk in the Goods will pass to the Purchaser on delivery to the Purchaser or the Purchaser ‘s nominee.
9.2. Title in the Goods will not pass until all goods forming part of the relevant order or consignment have been fully paid for.
9.3. The Goods shall be stored separately and identifiably until paid for.
9.4. The Company shall be entitled to recover the invoiced price of any Goods not recovered by the Company notwithstanding that property in any of
the Goods has not passed from the Company.
9.5. Until such time as the property in the Goods passes to the Purchaser the Company shall be entitled at any time to require the Purchaser to
deliver up the Goods to the Company and, if the Purchaser fails to do so forthwith, the Company shall be entitled upon reasonable notice to enter
upon any premises of the Purchaser where the Goods are stored and repossess the Goods. In the event that the Goods are in the possession of a
third party, the Purchaser shall use its best endeavours to procure the consent and cooperation of such third party to facilitate repossession of the
Goods by the Company.
10. CATALOGUE DESCRIPTIONS
10.1. Whilst the Company takes every precaution in the preparation of the descriptions of Goods on the Website, in its catalogues and technical
circulars, and the preparation of its price lists and other literature, these documents are for the Purchaser’s general guidance only and the particulars
contained therein shall not constitute representations by the Company and the Company shall not
be bound thereby.
11. INTELLECTUAL PROPERTY
11.1. The Intellectual Property in the specification(s) and design(s) of the Goods shall belong to and remain the property of the Company or its
suppliers. .
11.2. Insofar as any of the Goods are Software the Purchaser may be required to enter into separate licence agreements to cover its usage.
11.3. Where any designs or specifications have been supplied by the Purchaser for manufacture by or to the order of the Company then the
Purchaser warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe
the rights of any third party and shall indemnify the Company against all loss, damage, costs and expenses awarded against or incurred by the
Company in connection with any claims that the Goods infringe the Intellectual Property of a third party.
12. WARRANTY
12.1. Subject as otherwise stated herein, the Company warrants that the Tangible Goods are free from significant defects in workmanship and
materials at the date of delivery.
12.2. The Company’s warranty in respect of Tangible Goods shall be limited as follows:
12.2.1. the warranty period and its terms shall be limited to such warranty as the Company receives from the manufacturer(s) of the Tangible Goods
and the Company shall endeavour to transfer to the Purchaser the benefit of any warranty or guarantee given to the Company.
12.2.2. Subject to clause 12.2.1 the Company’s liability under the warranty shall be limited to the supply of labour and materials to repair any defects
in the Tangible Goods, or at the Company’s option, to replace the defective Goods. The Company shall apply the said labour and materials free of
charge, save for transport costs, travelling time, time engaged in separating the Goods from other goods or replacing them in situ and engineer
expenses, and
12.2.3. the Company shall have no liability in respect of any defect arising from (a) any drawing, design, or specification supplied by the Purchaser or
(b) fair wear and tear, or (c) wilful damage, or negligence by the Purchaser, or failure by the Purchaser (or any sub-buyer or user) to follow the
Company’s instructions (whether written or verbal) as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are
none) good trade practice, or (d) misuse (including inappropriate use of the Goods) or their alteration, repair or incorporation into another product
without the Company’s prior approval in Writing; and
12.2.4. the Company shall have no liability if the total price payable for the Goods was not paid by the Purchaser by the due date.
12.3. The Company warrants that the Software will function substantially as described in any specification provided by the Company to the Purchaser
prior to the Contract.
12.4. The Company warrants that the Services will be provided with reasonable care and skill.
12.5. The Company’s warranty is conditional upon the following:
12.5.1. notice of the defect must be delivered to the Company in Writing within 7 days of the date of delivery or where the defect was not apparent
upon reasonable inspection on delivery, within 7 days of the discovery of the defect; and
12.5.2. where the defect is discovered within 7 days of the date of delivery, the Purchaser must give the Company a reasonable opportunity to
arrange for inspection of the Goods in the condition and at the location to which they were delivered; or
12.5.3. where the defect is discovered at a later date, the Goods in question (a) must have been properly stored and/or operated by the Purchaser
prior to the defect occurring, (b) must not have been subjected to abnormal use or any modification prior to the defect occurring, and (c) the Purchaser
(at its expense) must return the Goods in question for inspection by the Company should the Company so request;
12.5.4. where the defect is in Software the Purchaser has entered into any support and/or maintenance contract recommended by the Company and has exhausted all remedies under such agreement;
12.5.5. Where the defect is in Services the defect must be reported within 7 days of the occurrence or where the defect was not apparent upon
reasonable inspection on completion of the Services, within 7 days of the discovery of the defect;
12.5.6. Where the Goods are overseas the Purchaser (at its expense) must return the Goods in question for inspection by the Company should the
Company so request;
12.5.7. In all circumstances the defect must be reported within 90 days of the date on which the Goods or Services were delivered.
13. LIABILITY
13.1. The Goods are sold on the basis that the Purchaser has satisfied itself as to the suitability of the Goods for use or resale by the Purchaser. In
particular the Company gives no warranty that the Goods are suitable for any particular purpose or their use will result in any economic advantage,
increase in profits or reduction in costs for the Purchaser.
13.2. Nothing in this Condition 13 shall limit the liability of the Company to any natural person for death or personal injury resulting from its
negligence, or to the Purchaser from fraudulent misrepresentation, or for breach of the Company’s obligations arising from Section 12 of the Sale of
Goods Act 1979 or for any other liability which cannot be limited by law.
13.3. Subject to Condition 13.2 the following provisions set out the limitations on the liability of the Company (including any liability for the acts and
omissions of its employees, agents and sub-contractors) to the Purchaser with respect to:
13.3.1. any breach of its contractual obligations arising under the Contract;
13.3.2. any use made or resale by the Purchaser of any of the Goods, or of any product incorporating any of the Goods; and
13.3.3. any representation, statement, act or omission given, made or carried out under or in connection with the Contract (whether such liability
arises in contract, tort, negligence, misrepresentation, breach of statutory duty or otherwise howsoever).
13.4. Except as expressly set forth in the Contract, all conditions, warranties and representations express or implied by statute, common law or
otherwise with respect to the Goods and Services are excluded to the fullest extent permitted by law and in no event shall the Company be liable
for any of the following losses or damage (even where such losses or damage were foreseen, foreseeable, known or otherwise and whether or not
the Company is advised of the possibility of such loss, liability, damage or expense):
13.4.1. loss of revenue;
13.4.2. loss of actual or anticipated profit (including loss of profits on contracts);
13.4.3. loss of the use of money;
13.4.4. loss of anticipated savings;
13.4.5. loss of business;
13.4.6. loss of operating time or loss of use;
13.4.7. loss of opportunity;
13.4.8. loss of goodwill;
13.4.9. loss of reputation;
13.4.10. loss of, damage to or corruption of data; or
13.4.11. any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of
the type specified in Conditions 13.4.1– 13.4.10).
13.5. Subject to Conditions 12 and 13.2, the aggregate liability of the Company to the Purchaser with respect to all claims under or in connection
with the Contract shall be limited to the price of the Contract.
13.6. The Company shall not be liable to the Purchaser in any way whatsoever or be deemed to be in breach of the Contract by reason of any
delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods or Services, if the delay or failure was due
to any cause beyond the Company’s reasonable control.
13.7. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control:
unavailability of Goods at a reasonable price or at all, act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage,
insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any
governmental or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether
involving employees of the Company or a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; and/or power failure or
breakdown in machinery.
13.8. In circumstances such as those in Condition 13.7, delivery shall be suspended. The Company shall be entitled to cancel or rescind the
Contract and shall not be liable for any loss or damage as a result of such cancellation or rescission. If the Goods cannot be delivered or collected
within three months from the original delivery date, the Purchaser may, at its option, cancel the contract for the Goods (without liability to the
Company except for Goods already delivered), save that where the Goods have been specially obtained, manufactured or adapted for the
Purchaser and in the Company’s reasonable opinion there is no readily available market for them, the Purchaser may not cancel the order and the
Company may retain any price paid for them and the Purchaser shall remain liable to pay the Company (the remainder of) the full purchase price
for the Goods when finally ready to be delivered.
14. HEALTH AND SAFETY AT WORK AND PRODUCT LIABILITY
The Purchaser shall be solely responsible for and shall indemnify and keep indemnified the Company against any loss, liability or expense arising
directly or indirectly from use of the Goods other than in accordance with the uses to which a competent user would put goods of that description
and specification or which may be contained in literature supplied by the Company. It is a condition of the Contract that any information which may
have been supplied to the Purchaser by or obtained from the Company by the Purchaser about the use for which Goods are designed and/or have
been tested or about the results of any relevant tests and about conditions necessary to ensure that Goods will be safe and without risk to health
when properly used are provided by the Purchaser to its purchasers and by them to their purchasers or users.
15. USE OF GOODS IN LIFE SUPPORT, NUCLEAR AND CERTAIN OTHER APPLICATIONS
Goods sold by the Company are not designed, intended or authorised for use in life support, life sustaining, nuclear, or other applications in which
the failure of such Goods could reasonably be expected to result in personal injury, loss of loss or catastrophic property damage. If the Purchaser
uses or sells the Goods for use in any such applications the Purchaser
15.1. acknowledges that such use or sale is at the Purchaser’s sole risk;
15.2. agrees that the Company and the manufacturer of the Goods are not liable, in whole or in part, for any claim or damage arising from such
use; and
15.3. agrees to indemnify, defend and hold the Company harmless from and against any and all claims, damages, losses, costs, expenses and
liabilities arising out of or in connection with such use.
16. EXPORT CONTROL
The sale, resale or other disposition of certain Goods and related technologies or documentation may be subject to the export control laws,
regulations and orders of the United Kingdom and may also be subject to the export and/or import control laws and regulations of other countries.
The Purchaser agrees to comply with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export any such
Goods to any country to which such export or transmission is restricted or prohibited. The Purchaser acknowledges its responsibility to obtain any
license to export, re-export or import as may be required.
17. CONFIDENTIALITY UNDERTAKING AND BRIBERY ACT
17.1. The Purchaser undertakes that during the term of the Contract and thereafter it will keep confidential and will not use for its own purpose nor
without the written consent of the Company disclose to any third party any information of a confidential nature regarding the Company and the
Goods (including specifications of the Goods, trade secrets and information of commercial value) unless such information is public knowledge.
17.2. The parties each undertakes to comply with applicable Bribery Laws (meaning the Bribery Act 2010 and all other applicable UK and EU
legislation, regulations and codes in relation to bribery or corruption and any similar or equivalent legislation in any other relevant jurisdiction),
including ensuring that they have in place adequate procedures to ensure compliance with the Bribery Laws and prevent bribery and shall use all
reasonable endeavours to ensure that:
17.2.1. all of its personnel
17.2.2. all others associated with it, and
17.2.3. all of its subcontractors involved with this Agreement so comply. The expressions ‘adequate procedures’ and ‘associated’ shall be construed
in accordance with the Bribery Act 2010 and documents published under it.
17.3. Without limitation to the above sub-clause, the parties shall not make or receive any bribe (as defined in the Bribery Act 2010) or other
improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and will implement and
maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
18. ASSIGNMENT
The Contract or any right or rights of the parties thereunder may not be assigned in whole or in part without the prior consent of the other party..
19. SUB-CONTRACTS
The Company reserves the right to sub-contract the performance of the Contract or any part thereof.
20. TERMINATION
20.1. If:
20.1.1. the Purchaser commits any breach of any of the Conditions (including without limitation Conditions as to the time for payment of the
purchase price) or of any other contract with the Company (save where the breach is capable of remedy and the Purchaser has remedied the same
within 7 days of receiving notice in Writing from the Company requiring the same to be remedied); or
20.1.2. the Purchaser is dissolved or struck off the register of companies or a winding up order is made against the Purchaser or a meeting is
convened, resolution passed, or any step taken by the Purchaser with a view to the winding-up of the Purchaser except for the purpose of a solvent
reconstruction, reorganisation, merger or consolidation;
20.1.3. a receiver (including fixed charge or court appointed), administrative receiver, manager, insolvency practitioner or similar officer shall be
appointed over the whole or a substantial part of the undertaking, property or assets of the Purchaser;
20.1.4. the Purchaser is unable to pay its debts or is insolvent as defined in section 123 of the Insolvency Act 1986;
20.1.5. the Purchaser enters into (or proposes to enter into) a composition, scheme of arrangement or voluntary arrangement with any of its creditors
or otherwise or a moratorium is agreed imposed or declared in respect of or affecting all or a material part of (or of a particular type of) the debts of
the Purchaser;
20.1.6. if notice of intention to appoint an administrator is given by any person (including the Purchaser’s directors, the Purchaser or any qualifying
floating charge holder as defined in the Insolvency Act 1986) or any step is taken by any person with a view to placing the Purchaser into
administration as defined by the Insolvency Act 1986; or
20.1.7. any event or circumstances occurs which under the law of any relevant jurisdiction has an analogous or equivalent effect to any of the events
listed in the above sub-conditions in relation to the Purchaser;
20.1.8. the Company reasonably believes that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the
Purchaser accordingly;
then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled:
(i) by written notice to the Purchaser to cancel the Contract without any liability to the Company,
(ii) to stop any Goods in transit and to suspend any further deliveries
(iii) and the price for any Goods delivered but not paid for shall become immediately due and payable notwithstanding any previous agreement or
arrangement to the contrary.
21. GENERAL
Notices
21.1. All notices between the parties with respect to these Conditions shall be in Writing.
21.2. Any notice may be served:
a) by delivering it by hand;
b) by first class pre-paid post or recorded delivery; or
c) by fax, provided that a copy is also sent by post as set out in Condition21.2 b));
d) by email, provide that a copy is also sent by post as set out in Condition b)
to the registered office (or if none the principal place of business) of the addressee or such other address within the UK as the addressee may from
time to time have notified and had acknowledged by the other party for the purpose of this Condition.
21.3. Notices shall be deemed to have been received:
a) if delivered by hand, on the day of delivery;
b) if sent by first class pre-paid post or recorded delivery, two business days after posting exclusive of the day of posting;
c) if sent by fax or electronic mail, at the time of transmission unless sent after normal office hours at the place of receipt in which case it shall be
deemed to have been received on the next business day in the place of receipt (provided that a copy has also been sent by post as set out in
Condition 21.2 b)
21.4. Any notice or communication given under these Conditions shall not be validly served if sent by text messaging via mobile phone.
21.5. Conditions 21.1–21.4 shall not apply to the service of legal process.
Waiver.
21.6. No waiver by the Company of any breach of the Contract by the Purchaser shall be considered as a waiver of any subsequent breach of the
same or any other Condition.
Validity.
21.7. If any of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other
Conditions and the remainder of the Condition in question shall not be affected and the parties hereto shall renegotiate the terms of the Condition so
invalidated with a view to agreeing a revised and valid Condition with effect as similar a possible to the invalid or unenforceable provision.
Revision.
21.8. The Company reserves the right to revise these Conditions from time to time on not less than 30 days’ notice in Writing to the Purchaser. Each
Contract will be subject to the Conditions in force at the time of its creation.
Third Party Rights.
21.9. It is not intended that any third parties other than the suppliers of the Company where specifically mentioned should be entitled to enforce any
provision of these Conditions or any Contract (unless otherwise expressly so provided) purely by virtue of the Contracts (Rights of Third Parties) Act
1999.
21.10. No third party’s consent is required for any change to these Conditions or any Contract.
Law and Jurisdiction.
21.11. The Contract shall be governed by and construed in accordance with the laws of England, and the Purchaser agrees to submit to the nonexclusive jurisdiction of the English courts.
VOIP
22. DEFINITIONS
22.1 “Customer Equipment” means any equipment, the property of the Customer or rented by the Customer from a third party, connected to the public telephone network and used by the Customer in order to use the Service.
22.2 “FraudDefender” means the Company using reasonable endeavours to monitor telephone landline(s) it has provided to the Customer during the Initial Fixed Supply Period and any Subsequent Supply Period for any unusual activity, which may result in the Company using its sole discretion to suspend any such landline(s) using CDRs where it deems necessary, thereafter notifying the Customer of such suspension.
22.3 “Initial Fixed Supply Period” means the minimum period during which Service is provided as agreed between the Customer and the Company, which shall commence on the day that Service is first provided.
22.4 “Affinity” means Affinity Technology Ltd
22.5 “Network” means a telephone network of the Company, over which Service is provided pursuant to this Agreement.
22.6 “Number” means the telephone line(s) and/or CLI(s) over which Service is provided to the Customer.
22.7 “Rate Schedule” means the schedule of charges applicable from time to time in respect of the Usage Charges.
22.8 “Service” means line rental, direct or indirect access telecommunication service and/or any other services provided by the Company to the Customer.
22.9 “Standard Variable Rate” means the Company’s published Standard Variable Rate tariff, which is available at http://www.affinitytech.co.uk
22.10 “Subsequent Supply Period” means any period during which Service is provided, subsequent to the Initial Fixed Supply Period, as agreed between the Customer and the Company.
22.11 “Supply Period” means either the Initial Fixed Supply Period or the Subsequent Supply Period, during which Service is provided.
22.12 “Usage Charges” means the charges made by the Company to the Customer for the provision and use of the Service.
23. SERVICE
23.1 The company will procure Service to the Customer subject to the terms of this Agreement. The Company, or its principals, may at any time without notice vary the Service for technical, operational or other reasons within its entire discretion.
23.2 The Company will use reasonable endeavours to procure a continuous high quality Service in accordance with the terms and conditions set out herein.
24. CHARGES & PAYMENT
24.1 The Company will make Usage Charges in accordance with its Rate Schedule.
24.2 The Rate Schedule includes an annual price increase, which will be the annual percentage increase in the Retail Price Index (RPI) published by the Office for National Statistics, such price increase to take effect in January of each year of the Initial Fixed Supply Period and any Subsequent Supply Period.
24.3 Invoices are due for payment by Direct Debit in accordance with the advance notice given on the customer’s invoice. If an invoice is not paid by Direct Debit, then the Usage Charges for Service to which that invoice relates, together with all other Usage Charges for Service to be invoiced for during the remainder of the Supply Period shall be charged at the Standard Variable Rate.
24.4 Usage Charges for Service provided by the Company at any time other than the Initial Fixed Supply Period or any Subsequent Supply Period shall be charged at the Standard Variable Rate, a charge of £5 per phone will be added as of 17/01/2018 unless customer informs the Company within 30 days of this date that they will services their own phones.
24.5 If invoices are not paid monthly by Direct Debit then collection costs incurred by the Company, including administration charges, will be charged to the Customer.
24.6 Interest will be charged on unpaid invoices from the due date until payment at a rate of 1.5 per cent per month or part thereof.
24.7 Value Added Tax, or any other levy or tax, at the rate prevailing will be added on to all sums due to the Company, which are quoted as exclusive of Value Added Tax, or any other levy or tax.
24.8 The Customer shall not be entitled to delay or withhold payment or claim any set off against any payment due hereunder in respect of any claim or complaint, which the Customer may have for any reason whatsoever. Any payments made by the Customer to the Company, including payments made for other services that the Customer may receive from the Company, may be applied by the Company as it deems fit.
24.9 The Customer agrees that the Company may make credit status enquiries. Subject to credit status, a prepayment or a non-interest bearing deposit may be required.
24.10 In the event of any action taken by the Company in relation to any charges due from the Customer whatsoever, the Customer shall reimburse and indemnify the Company, with and in respect of all expenses relative thereto, including all legal charges and professional fees on a full indemnity basis.
24.11 Usage Charges shall be invoiced monthly in arrears or monthly in advance, depending on the nature of the Usage Charges (normally, calls will be invoiced monthly in arrears and fixed monthly charges, including line rental, will be invoiced monthly in advance). Usage Charges may be required to be pre-paid by way of deposit. Usage Charges may relate back to months prior to the previous month.
24.12 In the event that the Customer fails to provide the Company with at least 30 days’ notice of any change in personal details of the Customer including change of address, in accordance with clause 25.1(g), then the Customer shall pay all Usage Charges in respect of the Number until 30 days after notice of any such change has been given by the Customer.
24.13 In the event that the Customer fails to provide the Company with at least 30 days’ notice of any change in personal details of the Customer including change of address, in accordance with clause 25.1(g), then the Customer shall pay all Usage Charges in respect of the Number until 30 days after notice of any such change has been given by the Customer.
25. OBLIGATIONS
25.1 The Customer undertakes:
a) To use the Service in accordance with the reasonable instructions of the Company;
b) Not to use the Service in any improper or unlawful manner or in any manner, which may cause offence;
c) To allow the Company or its duly appointed agents access to the Customer’s premises for the purposes of installation, programming and maintenance, or for any other reason whatsoever;
d) To ensure that the Customer Equipment is in good working order and is maintained by a competent maintainer or service provider;
e) To use only BABT approved Customer Equipment. All Customer Equipment must comply with all relevant legislation relating to its use from time to time;
f) To pay for all Service provided by the Company within the time limits and in the manner set out herein and to be responsible for the usage of the Service, whether the use of the Service has been authorised by the Customer or not (and the Customer agrees that the Company is not obliged to monitor the level of telephone calls and/or report unusual telephone call patterns);
g) To inform the Company, giving at least 30 days written notice, of any changes in personal details of the Customer including change of address, in accordance with clause 30.10;
h) Not to in any way whatsoever modify the programming of the Customer Equipment, where the Customer Equipment has been programmed with access codes by the Company;
i) Not to in any way whatsoever, cause calls to be routed over any networks, other than the Network (save in respect of calls to the exempt numbers, notified to the Customer from time to time);
j) In the case of payment not being made by Direct Debit, to pay the increased charges in accordance with clause 24.4;
k) Not to enter into any contracts with alternative suppliers to provide the Customer with services which are similar to the Service, other than in accordance with clause 29.1 (a);
l) To provide the Company with explicit consent to allow telecommunication service providers to disclose relevant information about the Customer to the Company;
m) Not to claim any ownership rights over any Number, nor to attempt to sell or agree to transfer any Number provided to it.
If paying using BBX this is subject to review and the customer will be give 30 days’ notice of this change.
26. FAULTS
26.1 The Company will use reasonable endeavours to report to its principals any fault on the Network, which is reported to it by the Customer. The Company shall not be liable to the Customer for any losses incurred as a result of a fault on the Network, or as a result of any delays in repairing a fault on the Network.
26.2 The Company shall not be liable to the Customer for any losses incurred as a result of any interruption to the Service.
26.3 If a fault is caused by the Customer Equipment, by breach of this Agreement by the Customer, or by the Customer’s negligence, or if a fault occurs on the Customer’s premises or land, the Company may recover all reasonable costs incurred from the Customer.
27. SUSPENSION OF SERVICE
27.1 The Company shall be entitled to suspend Service in order to maintain or improve the Network or if obliged to do so by virtue of any direction or request from any government department, emergency service, regulatory or administrative authority, or by its principals, or for any other reason whatsoever.
27.2 The Company will use reasonable endeavours to give the Customer notice of such suspension as reasonably practicable.
27.3 The Company shall be entitled to suspend any part of or all of the Service without notice in the event that any payments are not made within 14 days. Such suspension will not affect the Customer’s obligation to pay for the Service during the period of suspension or thereafter and will not affect the Company’s rights to charge a termination fee.
28. LIABILITY
28.1 Neither the Customer nor the Company excludes or limits its liability for death or personal injury caused by its negligence.
28.2 The Company shall not be liable for any loss or damage caused to the Customer except where caused by the Company’s negligent acts or negligent omissions or the Company’s breach of contract and in such event the Company’s total liability to the Customer under this Agreement for any loss or damage shall be limited to £50,000.
28.3 Subject to clause 28.1 the Company shall not be liable to the Customer for; any indirect, consequential and/or special loss or damage; loss of profit; loss of revenue, loss of production or loss of business; loss of contracts; loss of goodwill, loss of reputation or loss of opportunity; loss of anticipated savings or loss of margin; loss or destruction of data; wasted management, operational or other time; liability of the Customer to third parties; or the acts or omissions of network operators or other telecommunication service providers on whom the Company has to rely to provide the Service.
28.4 The Customer is advised to obtain its own business continuity insurance.
28.5 In relation to FraudDefender, the Company shall not be liable to any party for any losses suffered in the event of delays or other non-performance, whether due to delayed delivery of CDRs which are provided by third parties, or for any other reason.
28.6 The Company shall not be liable for any losses to any party that arise as a result of fraudulent activity, whether or not due to any failure or non-performance in FraudDefender. FraudDefender does not prevent such activity from taking place.
29. TERMINATION
29.1 This Agreement will remain in force:
a) for the Initial Fixed Supply Period or any Subsequent Supply Period and will continue thereafter until terminated by the Customer arranging for Service to be transferred to another supplier of telecommunications services or the Customer requesting Service to be ceased, or,
b) until the Customer has committed a material breach of this Agreement (including but not limited to non-payment by Direct Debit or noncompliance with this Agreement due to ceasing to be responsible for the Number, e.g. when closing, or moving the premises of, the business), or,
c) until the Customer has a receiver, administrative receiver, liquidator or supervisor of a voluntary arrangement appointed over it, or over any part of its undertaking or assets or a resolution is passed for its winding up, or if an administration order is made, or if it enters into a voluntary arrangement with its creditors, or ceases to trade in all capacities, proof of which must be provided by a letter from a firm of solicitors regulated by the Solicitors Regulation Authority or an accountancy firm currently registered with and regulated by the respective regulatory authority, or,
d) unless and until the Company change the Charges to the significant detriment of the Customer, for example by changing any recurring charges, in which case the Customer may give the Company written notice to end the Agreement within 30 days of the date on which the Company informs the Customer in writing of the change(s), or,
e) until the Customer, trading as a sole trader, has ceased to trade in all capacities, proof of which must be provided by a letter from a firm of solicitors regulated by the Solicitors Regulation Authority.
29.2 The Company may suspend Service in circumstances where it could terminate this Agreement or when the Customer has failed to pay any amount due or it reasonably believes that the Customer will fail to pay any amount due or to become due and any such suspension will be without prejudice to the right to terminate.
29.3 If this Agreement is terminated pursuant to clauses 29.1(b), 29.1(c) or 29.1(e), and, in the case of termination under clause 29.1(e), the Customer fails to provide the requisite proof, the Customer shall pay to the Company a termination fee in the sum of £200 per line/channel for each year or part year remaining. The Customer agrees this represents a fair and reasonable estimate of the losses, costs and expenses incurred by the Company in the case of termination.
30. GENERAL
30.1 The Customer may not assign or transfer this Agreement or any rights hereunder to any third party, without the prior written consent of the Company. The Company may assign or transfer this Agreement or any rights hereunder.
30.2 The Company shall not be liable for breach of its obligations under this Agreement to the extent that such breach is caused by flood, fire, accident, explosion, strike, war, embargo, Government restriction, Act of God, inability to secure materials, industrial dispute or any other cause beyond the parties’ reasonable control including in particular acts or omissions of other providers of telecommunication services.
30.3 The remaining parts of this Agreement shall remain in full force in the event that any part of this Agreement shall be invalid, illegal or unenforceable, as if the unenforceable part had been omitted from the original Agreement.
30.4 All the terms of this Agreement are set out herein. Neither party has relied upon any representations, assurances or other agreements, whether verbal or otherwise, unless set out herein.
30.5 In the unlikely event that the customer has a complaint about the service received, please refer to the Company’s website http://www.affinitytech.co.uk for details about the complaint’s procedure.
30.6 The Company may change the terms and conditions of this Agreement and will, save as stated otherwise in this Agreement, provide the Customer with 14 days’ notice of any such change will be e-mailed or posted to customers.
30.7 All changes made under clause 30.6 will be advised either in writing or on the Company’s website http://www.affinitytech.co.uk any other website used by the Company as its principal website or any other website notified to the Customer to be used for this purpose.
30.8 No waiver by either party shall constitute any variation to this Agreement.
30.9 Singular words shall be construed as including words of the plural and vice versa.
30.10 Any notices given by the Customer under this Agreement shall be made in writing and sent by registered post. Any notices given by the Company under this Agreement shall be published on its principal website or sent by post or email. The address for service shall be the address given overleaf for each party, unless changed; in which case, notice of change shall be given in accordance with the terms of this clause, subject to clause 25.1(g).
30.11 This Agreement shall be governed by and interpreted in accordance with the Laws of England and shall be subject to the exclusive jurisdiction of the courts of England.
MOBILE HARDWARE SERVICE & REPAIRS
31. TERMS
31.1 These are the terms and conditions on which the Company supply products to the Customer, whether these are goods, services or digital content. In most cases, the products will be replacement device parts and one-off device repairs and services.
31.2 Please read these terms carefully before you submit your order to the Company. These terms tell you who the Company is, how products will be provided, how the Customer and the Company may change or end the contract, what to do if there is a problem, and other important information. If you think that there is a mistake in these terms, please contact the Company.
31.3 In some areas the Customer will have different rights under these terms depending on whether the Customer is a business or a consumer. The Customer is a consumer of;
(i) the Customer is an individual; and
(ii) the Customer is obtaining goods or services from the Company wholly or mainly for personal use (not for use in connection with a trade, business, craft or profession).
31.4 If the Customer is a business, these terms constitute the entire agreement between the Customer and the Company in relation to the provision of goods or services. The Customer acknowledges that there has been no reliance on any statement, promise, representation, assurance or warranty made or given by, or on behalf of the Company which is not set out in these terms and that the Customer shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
32. ORDER
32.1 Acceptance of the order will take place when the Company email you an order confirmation. At this point, a Contract will be deemed to exist.
32.2 If the Company is unable to accept the Customer’s order, the Company will provide written confirmation of this and there will be no charge for the order. Reasons an order may not be accepted include, but is not restricted to;
(i) The product or parts are unavailable;
(ii) The Company has unexpected limits on its resources that could not, reasonably have been planned for;
(iii) An error has been identified in the product price or description; or
(iv) The Company is unable to meet the delivery deadline specified by the Customer.
32.3 The Company will assign an order number and notify the Customer of it when the order is accepted. The order number must be supplied when the Customer contacts the Company about the order.
32.4 The Company website is solely for the promotion of products in the UK. Orders are not accepted from Customers outside the UK.
33. PRICE & PAYMENT
33.1 The price is indicative only and may change. The price given to the Customer on acceptance of the order in an indicative, non-binding price based upon information supplied by the Customer regarding the fault on the device. If there is any change to the price, for example because the information provided by the Customer is incorrect or additional defects are identified, the Company will notify the Customer for agreement to proceed with the order at the revised price. If the Customer chooses not to proceed, the Company will not supply the ordered goods or service and shall have no liability other than to refund any sum previously paid by the Customer less a £25 call out charge.
33.2 If the rate of VAT changes between the Customer order being places and the date goods or services are provided by the Company, the rate of VAT charged will be adjusted, unless the Customer has paid in full before the change of VAT takes effect.
33.3 INSERT INFORMATION ABOUT METHODS OF PAYMENTS
33.4 For new, pay on invoice accounts, a credit check may be applied for before credit is agreed. Following account activation, an electronic statement will be supplied on the 1st of every month with 30-day payment terms.
33.5 The Company reserve the right to request details of a creditor with who the Customer has done business for more than 12 months for businesses with less than 5 years trading history. For businesses with less than 12 months trading, the Company reserve the right to decline credit terms. In the case repairs can be booked online via payment card. Any credit terms may be withdrawn by the company by giving 30 days’ notice.
34. PROVISION OF GOODS OR SERVICES
34.1 Repair services are supplied by the Company’s repair technicians, each of whom has undergone a technical assessment to ensure services will be supplied to a high standard.
34.2 The Company cannot be held responsible for delays outside its control. The Company will advise the Customer as soon as possible and will take steps to minimise the effect of the delay. If there is a risk of a substantial delay the Customer may request a refund for goods or services that have been paid for but not supplied.
34.3 If the Customer, or the device, is not available at the agreed repair location at the arranged time and date, the Company will attempt to contact the Customer and the technician will wait at the repair location for a maximum of 15 minutes. If the Company cannot contact the Customer, or the Customer is not able to attend in sufficient time for the order to be completed within the arranged timeslot;
(i) The Customer may rearrange the repair upon payment of an additional £25 charge; or
(ii) The Company may end the contract and clause XXX will apply.
34.4 If required information requested from the Customer is not supplied, or is incomplete or inaccurate, the Company may end the contract (and clause XXX will apply) or make an additional charge to compensate for any extra work that is required as a result. The Company will not be responsible for supplying the goods or services late, or not supplying any part of them, if this is caused by the Customer.
34.5 The Company may have to delay the supply of a product to:
(i) deal with technical problems or make minor technical changes;
(ii) update the product to reflect changes in relevant laws and regulatory requirements; or
(iii) make changes to the product as required.
34.6 By placing an order, the Customer authorises and consent to the Company performing the necessary services on the device;
a) acknowledge that whilst technicians are trained specialists, the Company is not an authorised service provider for any manufacturer of any brand of device other than Samsung and have no affiliation with any device manufacturer other than Samsung;
b) acknowledge that it may be necessary to reset the manufacturer’s factory/default settings for the device, and that this process might delete any data, personal information or settings held on the device product;
c) acknowledge that the Customer is solely responsible for removal of any SIM card, memory card, case, screen protector or other accessory from the device prior to the provision of services;
d) acknowledge that the device must be backed up prior to the provision of services;
e) agree that where services relate (in any way) to liquid damage to the device:
(i) there is no guarantee that the device will be repairable, but the full price shall still be payable and there shall be no entitlement to any refund; and
(ii) the Company’s warranty (as described in clause 41 for consumers and clause 42 for business customers) does not apply;
f) agree that it is the Customer’s responsibility to provide accurate information regarding the device (including model and condition) and to detail any modifications or repairs that have previously been attempted or completed. The Company will perform a check-in diagnosis of the device to evaluate its condition. If the device is in noticeably different condition than as described, the Customer agrees that additional charges may apply as detailed in clause 33.1;
g) agree that the Company only provide a limited warranty to any battery replacement as per clause 36; and
h) agree that ownership of any damaged or defective parts removed from the device in the course of provision of the repair services passes to the Company.
35. NO FIX POLICY
35.1 Subject to clause 35.2, we offer a “no fix” policy in relation to our repair services, by which if we are unable to repair your device, you do not pay our full fee in relation to the products we have supplied. You will instead only be charged our £25 call out charge.
35.2 This policy does not apply:
(a) where the services include repairs for liquid damage (as per clause 34);
(b) to any element of products or services that have been successfully delivered or completed. For example, if the device requires a screen replacement (completed successfully) and fixing the power button (not completed), this policy would apply to the costs of repairing the power button, but the Customer would still be required to pay for the screen repair (but there would, in this example, be no additional call out charge); or
(c) to a battery replacement.
35.3 Where this policy applies, the Company shall refund any sum previously paid by the Customer less the £25 call out charge.
36 OUR WARRANTY
36.1 Except as stated otherwise in this clause 36, the Company warrant that on repair, and for a period of 12 months from the date of repair (warranty period), products supplied by the Company shall:
(a) conform in all material respects with their description;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
36.2 Please note that the warranty period runs from the date of the original repair. If subsequent work is carried out under the warranty, this does not extend the warranty. For example, if a warranty repair is done 3 months after the original repair, the warranty still ends 12 months from the date of the original repair.
36.3 What the warranty does not cover.
(a) The Company warranty does not apply to liquid damage repairs.
(b) The Company warranty is limited in relation to replacement batteries.
(i) Due to the unpredictable and varied nature of causes of battery performance issues, it is not always possible to diagnose whether the issue is due to hardware, software, board, or even accessories. Following completion of services, should the device continue to display the original symptoms (at any degree, be it increased, decreased, or the same) but continue to display some functionality, regardless of how minor, the Company retain the right to determine that the issue is as a result of damage to the U2 ic Chip and the warranty will not apply.
(ii) If the battery is not functioning or will not charge or turn on, at all, then the device will need to be diagnosed by the Company’s head technician on Company premises.
(iii) Battery performance can also be adversely affected by faulty chargers or dock connectors. The Customer must have tried alternative original equipment manufacturer (OEM) chargers for, and have the most recent software updates on, the device before booking in a battery replacement.
(iv) The warranty will not apply if the Customer has used non-OEM chargers, power banks, car chargers, charging phone cases, charging pads, plates, or any other form of battery/phone charging equipment not manufactured by the OEM. Any use of these accessories may cause damage to the device’s ic Chip and therefore a battery or charger port replacement is unlikely to resolve the issue. The Customer will not be entitled to a refund for products supplied.
(c) The warranty does not apply in the event of any of the following occurring in relation to a device upon which the Company has performed services:
(i) mishandling that causes subsequent damage;
(ii) water or other liquid damage;
(iii) damage or faults resulting from attempted repairs by the Customer or any third party;
(iv) software issues unrelated to the repair and/or any damage resulting from viruses or other malicious software that may have been transmitted during servicing or escaped detection;
(v) any jail broken or “rooted” device; or
(vi) any fault or damage unrelated to the products supplied by us under warranty.
(d) Pre-repair issues/events. The warranty does not apply if the device is jail broken or “rooted” or if, at or before the time the Company provide the products, there is in relation to the device:
(i) a known manufacturing or performance issue which is separate from the services ordered;
(ii) water or other liquid damage;
(iii) any damage or fault resulting from repairs attempted by the Customer or any third party; or
(iv) any performance issue with the device’s battery.
36.4 If upon inspection it is determined that the issue is not covered by the warranty (for example, because the device is cracked or the warranty does not apply due to one of the limitations set out above), the Customer may opt for the Company to either
(a) carry out a repair (to the extent that we are able to) at the standard price or
(b) pay the £25 call out charge.
37 YOUR RIGHTS TO END THE CONTRACT
37.1 The rights that apply when a contract is ended will depend on the service contracted, whether there is anything wrong with it, how the Company is performing, when the Customer decides to end the contract and whether the Customer is a consumer or business customer:
(a) If the goods or services are faulty or misdescribed the Customer may have a legal right to end the contract (or to get the product repaired or replaced or a service re-performed or to receive a full ,or partial refund), see clause 41 for consumers and clause 42 for businesses;
(b) If the Customer wants to end the contract because of something the Company has done or has told the Customer it is going to do see clause 37.2;
(c) If the Customer is a consumer and has changed their mind about the product, see clause 37.3. A refund may be agreed if the Customer is within the cooling-off period, but this may be subject to deductions;
(d) In all other cases (if the Company is not at fault and the Customer is not a consumer exercising the right to change their mind), see clause 37.5.
37.2 If the Customer is ending a contract for a reason set out at (a) to (d) below the contract will end immediately and the Company will refund the Customer in full for any products which have not been provided and the Customer may also be entitled to compensation. The reasons are:
(a) the Company have told the Customer about an error in the price or description of the product the Customer has ordered, and the Customer does not wish to proceed;
(b) there is a risk that supply of the products may be significantly delayed because of events outside the Company’s control;
(c) the Company has delayed supply of the products for technical reasons, or notify the Customer that the Company is going to delay them for technical reasons, in each case for a period of more than one week; or
(d) the Customer has a legal right to end the contract because of something the Company has done wrong.
37.3 If the Customer is a consumer then for some products bought online the Customer has a legal right to change their mind within 14 days and receive a refund. However, due to the type of products the Company supply, this right to change their mind will not apply in respect of:
(a) services, once these have been completed, even if the cancellation period is still running; or
(b) any products which become mixed inseparably with other items after their delivery.
These rights, under the Consumer Contracts Regulations 2013, are explained in more detail in these terms.
37.4 If the Customer is a consumer and has ordered device repair services, the Customer has 14 days after the day the Company emails the Customer to confirm acceptance of the Customer order. However, once the Company has completed the services the Customer cannot change their mind, even if the period is still running. If the Customer cancels after the Company has started the services, the Customer must pay for the services provided up until the time the Customer notifies the Company that they have changed their mind.
37.5 Even if the Company is not at fault and the Customer is not a consumer who has a right to change their mind (see clause 37.1), the Customer can still end the contract before it is completed, but the Customer may have to pay the Company compensation. Contracts are completed when the Company has finished providing the services and the Customer has paid for them. If the Customer wants to end a contract before it is completed where the Company is not at fault and the Customer is not a consumer who has changed their mind, please contact the Company. The contract will end immediately. If the Customer wishes to cancel:
(a) the Company will refund any sums paid by the Customer for products not provided if the Customer notifies the Company by 8.00am on the day before the arranged repair date;
(b) but do not tell the Company by 8.00am on the day before the arranged repair date, the Company will refund any sums paid by the Customer for products not provided but the Company will deduct from that refund a £25 call out charge (as compensation for the net costs the Company will incur as a result of ending the contract).
38 HOW TO END THE CONTRACT
38.1 To end the contract with the Company, the Customer must do so by taking one of the following actions;
(a) Call customer services on INSERT PHONE NUMBER or email us at INSERT EMAIL. Please provide the Customer’s name, home address, details of the order and, where available, the phone number and email address.
(b) Print off the form appearing at the end of these terms and return it to the Company at the address on the form. Alternatively, simply write to the Company at that address, including details of what the Customer bought, when the Customer ordered or received it and the name and address.
38.2 If the Customer is entitled to a refund under these terms the Company will refund the Customer by the method used for payment. However, the Company may make deductions from the price, as described in these terms.
38.3 If the Customer is exercising the right to change their mind and:
(a) the Customer tells the Company by 8.00am on the day before the arranged repair date, the Company will refund any sums paid by the Customer for products not provided if; or
(b) the Customer does not tell the Company by 8.00am on the day before the arranged repair date, the Company will refund any sums paid by the Customer for products not provided but the Company will deduct from that refund a £25 call out charge (as compensation for the net costs the Company will incur as a result of ending the contract); or
(c) the Company has commenced the supply of the services, the Company may deduct from any refund an amount for the supply of the service for the period for which it was supplied, ending with the time when the Customer notified that they had changed their mind. The amount will be in proportion to what has been supplied, in comparison with the full coverage of the contract, subject to a minimum charge of £25.
38.4 The Company will make any refunds due to the Customer as soon as possible but always within 14 days of the Customer telling the Company of the change of mind.
39 The Company’s RIGHT TO END THE CONTRACT
39.1 The Company may end the contract for a product at any time by writing to the Customer if:
(a) the Customer does not make any payment to when it is due;
(b) the Customer does not, within a reasonable time being asked for it, provide information that is necessary for the Company to provide the products;
(c) the Customer is not present at the agreed address at the arranged time to allow the supply the services as detailed in clause 34.3.
39.2 If the Company ends the contract in the situations set out in clause 39.1 the Company will refund any money the Customer has paid in advance for products the Company has not provided but the Company may deduct or charge the Customer a £25 charge (as compensation for the net costs the Company will incur as a result of the Customer breaking the contract).
39.3 The Company may write to the Customer with notification that the Company is going to stop providing the product. The Company will let the Customer know in advance of stopping the supply of the product and will refund any sums the Customer have paid in advance for products which will not be provided.
40 IF THERE IS A PROBLEM WITH THE PRODUCT
If the Customer has any questions or complaints about the product, please contact the Company. Contact details are available on the website and on all communication from the Company.
41 Consumer RIGHTS IN RESPECT OF DEFECTIVE PRODUCTS
41.1 If the Customer is a consumer the Company is under a legal duty to supply products that are in conformity with this contract.
41.2 Nothing in these terms (including the warranty at clause 9) will affect a consumer’s legal rights.
42 Business customers rights IN RESPECT OF DEFECTIVE PRODUCTS
42.1 Subject to clause 42.2, if:
(a) the Customer gives notice in writing during the warranty period within a reasonable time of discovery that a product does not comply with the warranty set out in clause 36. 9
(b) the Company is given a reasonable opportunity of examining such product; and
(c) the Customer returns such product or allows it to be collected from the Customer,
the Company shall, at its discretion, repair or replace the defective product, or refund the price of the defective product in full.
42.2 The Company will not be liable for a product’s failure to comply with the warranty in clause 36 if:
(a) the Customer makes any further use of such product after giving a notice in accordance with clause 42.1(a);
(b) the defect arises because the Customer failed to follow reasonable instructions as to the storage, installation, commissioning, use or maintenance of the product or (if there are none) good practice;
(c) the Customer alters or repairs the product without written consent; or
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
42.3 Except as provided in this clause 42, the Company shall have no liability to the Customer in respect of a product’s failure to comply with the warranty set out in clause 36.
42.4 These terms shall apply to any repaired or replacement products supplied under clause 42.1.
43 Company RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY CONSUMER CUSTOMERS
43.1 Subject to clause 43.2, if the Company fail to comply with these terms, the Company are responsible for loss or damage the Customer suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill, but the Company are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both the Company and the Customer knew it might happen, for example, if the Customer discussed it with the Company prior to placing the order.
43.2 The exceptions, where the Company are not liable to the Customer, are:
(a) any claims or damages of any kind or description that may arise from any repair work performed on the device, unless it is caused by Company negligence;
(b) loss, deletion, amendment to or corruption (howsoever caused) of any data or information that the Customer have stored on the device;
(c) data loss, corruption, deletion, or alteration, and hardware or software failure on SIM cards and memory cards;
(d) any damage to or loss of any SIM card, memory card, case, screen protector or other accessory that the Customer have failed to remove from the device;
(e) any loss of damage arising from the Customer’s failure to comply with any of the conditions set out in clause 34.6;
(f) when services performed by the Company void manufacturer warranties for the device. If the Customer do not wish to void the warranty, the Customer should not place an order but should contact the device manufacturer;
(g) any failure to repair any liquid damaged device;
(h) where it is not possible to repair the device (as the Company cannot guarantee that the device is capable of being repaired); and
(i) any waterproof (or water-resistant) device no longer being waterproof (or water- resistant) following completion of services.
43.3 This includes liability for death or personal injury caused by the Company’s negligence or the negligence of its employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of the Customer’s legal rights in relation to the products including the right to receive products which are: as described and match information the Company provided to the Customer and any sample or model seen or examined by the Customer; of satisfactory quality; fit for any particular purpose made known to the Company; supplied with reasonable skill and care and, where installed by the Company, correctly installed; and for defective products under the Consumer Protection Act 1987.
43.4 If the Customer is a consumer the Company only supply the products for to the Customer for domestic and private use. If the Customer use the products for any commercial, business or re-sale purpose our liability to the Customer will be limited as set out clause 44.
44 COMPANY RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY A BUSINESS CUSTOMER
44.1 Nothing in these terms shall limit or exclude the Company’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
44.2 Except to the extent expressly stated in clause 9 all terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982 are excluded.
44.3 Subject to clause 44.1:
(a) the Company shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise:
(i) for any loss of profit, or any indirect or consequential loss arising under or in connection with any contract between us;
(ii) any claims or damages of any kind or description that may arise from any repair work performed on the device, unless it is caused by our negligence;
(iii) loss, deletion, amendment to or corruption (howsoever caused) of any data or information that the Customer has stored on the device;
(iv) data loss, corruption, deletion, or alteration, and hardware or software failure on SIM cards and memory cards;
(v) any damage to or loss of any SIM card, memory card, case, screen protector or other accessory that the Customer has failed to remove from the device;
(vi) any loss of damage arising from the Customer’s failure to comply with any of the conditions set out in clause 34.6;
(vii) when services performed by the Company void manufacturer warranties for the device. If the Customer does not wish to void the warranty, the Customer should not place an order but should contact the device manufacturer;
(viii) any failure to repair any liquid damaged device;
(ix) where it is not possible to repair the device (as the Company cannot guarantee that the device is capable of being repaired); and
(x) any waterproof (or water-resistant) device no longer being waterproof (or water- resistant) following completion of services; and
(b) total liability to the Customer for all other losses arising under or in connection with any contract between us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total paid by the Customer for products under such contract.
45 HOW THE COMPANY MAY USE YOUR PERSONAL INFORMATION
45.1 The Company will use the personal information the Customer provides:
(a) to supply the products to the Customer;
(b) to process your payment for the products; and
(c) if the Customer agreed to this during the order process, to give the Customer information about similar products that the Company provide, but the Customer may stop receiving this at any time by contacting the Company.
45.2 When the Customer contacts the Company, the Company may ask for this personal information to be able to confirm identity and the Company may make a note of this contact if it is relevant.
45.3 The Company will only give out personal information to other third parties where the law either requires or allows it to do so.
46 OTHER IMPORTANT TERMS
46.1 The Company may transfer its rights and obligations under these terms to another organisation. The Company will tell the Customer in writing if this happens and the Company will ensure that the transfer will not affect Customer rights under the contract.
46.2 The Customer may only transfer its rights or obligations under these terms to another person if the Company agrees to this in writing.
46.3 This contract is between the Company and the Customer. No other person shall have any rights to enforce any of its terms.
46.4 Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
46.5 If the Company does not insist immediately that the Customer does anything the Customer is required to do under these terms, or if the Company delays in taking steps against the Customer in respect of breaching this contract, that will not mean that the Customer does not have to do those things and it will not prevent the Company taking steps against the Customer at a later date. For example, if the Customer misses a payment and the Company does not chase the Customer but the Company continues to provide the products, the Company can still require the Customer to make the payment later.
46.6 These terms are governed by English law and the Customer can bring legal proceedings in respect of the products in the English courts. If the Customer lives in Scotland the Customer can bring legal proceedings in respect of the products in either the Scottish or the English courts. If the Customer lives in Northern Ireland the Customer can bring legal proceedings in respect of the products in either the Northern Irish or the English courts.
46.7 If the Customer is a business, any dispute or claim arising out of or in connection with a contract between us or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.
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