EC COMPUTERS LTD – T&C’s, CONFIDENTIALITY & DISCLAIMER NOTICES
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Terms and Conditions
1. DEFINITIONS AND INTERPRETATION
In these terms and conditions the following words have the meanings given: –
“Business Day” means any day other than a Saturday, Sunday or a public or bank holiday in England, Wales, Scotland or Northern Ireland; “Contract” means a contract for the purchase by the Customer of Products or Services from EC Computers incorporating these terms and conditions and arising from the acceptance by EC Computers of an Order; “Customer” means the firm or company ordering Products or Services; EC Computers only sell to registered companies. “Default” shall mean any breach by either party of its obligations under a Contract, any default, act, omission, negligence or statement by either party, its employees, agents or sub-contractors arising out of or in connection with a Contract and in respect of which either party may be legally liable;
EC Computers means EC Computers Ltd or any such other company as EC Computers may appoint as sub-contractor to provide the Services to the Customer; “Group” means in relation to any party that company and every other company which is for the time being a subsidiary or holding company (as defined in the Companies Act 1985) of that company or a subsidiary of such holding company; “Intellectual Property Rights” means copyright, patent, trademark, service marks, registered designs, know-how, confidential information, trade or business names or other similar rights together with applications for any of the foregoing; “Licence Agreement” means any licence agreement relating to use of the Software; “Order” means any written order for Products, or Products and Services, received by EC Computers from the Customer; “Services” means any configuration or installation services provided by EC Computers as sub-contractor of the Customer to end-users of Products in conjunction with the supply of Products; “Software” means any computer software supplied by EC Computers, whether embodied in ROM, RAM, and firmware or on disk, tape or other media.
“Confidential Information” all information of whatsoever nature (whether oral, written or in any other form) containing or consisting of material of a technical, operational, administrative, economic, marketing, planning, business or financial nature or in the nature of intellectual property of any kind or in the nature of Specifications and relating either to the Products, the Seller or the Buyer (as the case may be); “Delivery Address” the address for delivery of the Products as stated on the Purchase Order; “Price” the price payable for the Products as specified in the Purchase Order and payable in accordance with the terms of this Agreement; “Products” such products to be sold by the Seller to the Buyer as may be determined from time to time by the Seller and Buyer; “Purchase Order” the buyers purchase order for the Products; “Specifications” any plans, drawings, data or other information relating to the Products;
1.2 All other words and expressions are to be given their normal English meaning taken in the context of the Contract. Any dispute as to the meaning of a word is to be settled by reference to the Oxford English Dictionary.
1.3 Any reference to a clause shall mean a clause of these terms and conditions unless otherwise stated.
1.4 The use of headings in these terms and conditions shall be for convenience only and shall not affect the interpretation of these terms and conditions.
1.5 Reference to any statute or statutory provision or any other regulation includes any provision which subsequently supersedes it or re-enacts it (whether with or without modification).
2. CONTRACT FORMATION
2.1 All Orders submitted by the Customer to EC Computers and accepted by EC Computers shall be subject to these following terms and conditions of which shall form part of and govern any Contract.
2.2 Acceptance by the Customer of any estimate or quotation for Products and/or Services issued by EC Computers shall be deemed to be acceptance of these terms and conditions.
2.3 Any terms and conditions appearing in any Order or other document whatsoever issued by the Customer shall be void and of no effect and these terms and conditions shall override any previous agreements relating to the provision of Products or Services between the parties.
2.4 No waiver of or amendment to these terms and conditions shall be effective unless made in writing and signed by a director of EC Computers. Purported amendments by e-mail or telephone will not be effective.
2.5 The Contract contains the entire agreement of the parties in relation to the supply of Products or Services by EC Computers to the Customer and the Customer irrevocably waives any right it might have to claim for damages and/or to rescind a Contract because of any misrepresentation by EC Computers (unless such misrepresentation was made fraudulently) or any warranty not contained in the Contract.
2.6 No Contract exists between the customer and EC Computers until EC Computers notifies the customer that EC Computers have accepted the order and delivered the goods. EC Computers may cancel the customer order if EC Computers cannot supply the goods for any reason
3.1 All prices for Products or Services stated in any quote, estimate or acceptance of order is that current at the time of the Customer’s enquiry.
3.2 The price payable by the Customer for Products or Services will be the price as quoted in the Purchase Order and unless otherwise notified in writing will be: (a) Exclusive of Value Added Tax or other applicable sales tax whether in substitution or in addition that shall be paid by the Customer at the rate from time to time in force. (b) Exclusive of EC Computers’s charges for delivery, handling or Services which will be added to EC Computers’s invoice for the Products.
3.3 Whilst every effort is made to ensure prices quoted and descriptions of goods indicated are fully verified at the time the customer places an order, if an error is found EC Computers will inform the customer as soon as possible and provide them the option to continue with the order at the revised price or cancel the order.
4.1 EC Computers may at its discretion offer credit terms to the Customer subject to the status of the Customer and completion by the Customer of a credit application form supplied by EC Computers. Such credit terms shall be determined by EC Computers and confirmed in writing with the Customer.
4.2 Unless and until credit terms are granted, the Customer will pay for any Products or Services on a “cash with order” basis in which case the Customer should allow at least three (3) Business Days for the payment to be credited to EC Computers’s account. EC Computers reserves the right not to release any Products or provide any Services until all such payments are cleared and credited to EC Computers’s bank account.
4.3 Where credit terms are granted, and unless other terms are granted in writing, the Customer will pay no later than 30 days following the date of EC Computers’s invoice and EC Computers reserves the right to suspend deliveries where payment is delayed.
4.4 Where Credit terms are granted, no amendments will be effective unless made in writing by the Credit Manager. Purported Amendments by e-mail or telephone will not be effective.
4.5 If Products are delivered in instalments EC Computers reserves the right to invoice each instalment as and when delivery is made to the Customer in which case payment shall be due in accordance with clause 4.2 or 4.3 above notwithstanding non-delivery of other instalments or fulfilment of the entire order.
4.6 If any payments are overdue the Customer may be placed on credit hold and no further Products or Services will be delivered or made available to the Customer until all payments due to EC Computers under the Contract have been paid. EC Computers may at its discretion, withdraw credit facilities in the event of any breach of this contract by the Customer.
4.7 If payment is not received by the relevant due date EC Computers may (1) Charge the Customer interest on any overdue amount (on a daily basis) from the due date of payment to the date of actual payment (both dates inclusive) at the rate of four (4) per cent per annum above the Bank of England Base Rate for the time being in force. (2) Take legal action for the recovery of any amount due and interest thereon at the rate specified in clause 4.7(2) above together with all collection and legal costs incurred.
4.8 All payments made by the Customer to EC Computers shall be in sterling in immediately available funds free and clear of any right of set off or counter claim or any withholding or deduction whatsoever.
4.9 Only a director of the company may agree terms of payment whereby the Customer may defer payment to EC Computers until receipt of monies from a third party.
4.10 Any agreement in 4.9 must be in writing, prepared before and referred to in the Customer’s Purchase Order and will not constitute a guarantee of performance to the Customer of any third party.
4.11 The customer agrees to make all payments due under this contract irrespective of any dispute or claim the Customer may have with or against any third party
4.12 If in the unlikely event that a price quoted or shown on a checkout page is incorrect and this is discovered before EC Computers accept the customer order, EC Computers are not required to continue with the sale at the price shown. The customer will receive a full refund if any payment has been received should the customer not wish to proceed at the revised price.
5.1 Risk of damage to or loss of the Products shall pass to the Customer upon delivery to the address specified in the Purchase Order in accordance with Clause 6.
5.2 Full legal, beneficial and equitable title to and property in any Products shall remain vested in EC Computers (even though they have been delivered and risk has passed to the Customer) until: (i) Payment in full of the purchase price (together with any interest and VAT thereon) and in cleared funds has been received by EC Computers in respect of those Products; and (ii) All other amounts payable by the Customer to EC Computers have been received by EC Computers.
5.3 Title to and property in Products will remain with EC Computers not withstanding that the relevant Products have been incorporated in or affixed to other products including, for the avoidance of doubt, the storage of or incorporation of any Software in ROM, RAM or any other hardware, software or firmware or other media whatsoever.
5.4 Until full legal, beneficial and equitable title to and property in any Products passes to the Customer, (a) The Customer shall hold the Products on a fiduciary basis as EC Computers’s bailee (b) The Customer will store those Products delivered to its premises in a proper manner and condition which adequately protects and preserves the products and shall insure them, without any charge to EC Computers and not tamper with any identification upon the products or their packaging and shall ensure that they are stored separately from any other goods (whether or not supplied by EC Computers) and are clearly identifiable as belonging to EC Computers and EC Computers shall be entitled to examine any such Products in storage at any time during normal business hours upon giving the Customer reasonable notice to do so. (c) EC Computers may at any time, on demand and with prior notice, require the Customer to deliver the Products up to EC Computers and may repossess and resell the Products if any of the events specified in Clause 15 occurs or if any sum due to EC Computers from the Customer under this contract is not paid when due.
5.5 If the Customer fails to redeliver any Product on demand in accordance with clause 5.3, EC Computers shall be entitled with notice, without incurring any liability to the Customer, to enter the Customer’s premises for the purpose of taking possession of the Product, and to take such steps as are necessary to remove the Product including the right to dismantle any product into which the Product has been incorporated and the right to detach the Product from any other goods to which the Product has been attached, provided that this can be done without damaging any product into which it has been incorporated.
5.6 The Customer shall fully indemnify EC Computers in respect of all EC Computers’s costs (including legal costs) in connection with enforcing the provisions of clause 5.5.
5.7 EC Computers hereby authorises the Customer to use and/or sell the Products in the normal course of the Customer’s business and to pass good title in the Products to its customers, if they are purchasers in good faith without notice of EC Computers’s rights. This right shall automatically cease on the occurrence of any event set out in Clause 15 and/or if any sum owed to EC Computers by the Customer is not paid when due. If the Customer sells the Product prior to paying the full price thereof the Customer shall hold the proceeds of sale on trust for EC Computers.
5.8 Where a Product is sold or otherwise disposed of to a third party before title to and property in it has passed to the Customer, the sale will constitute a sale by the Customer of EC Computers’s property, and the Customer shall hold on trust for EC Computers such sum as represents, or is equivalent to, the price at which the Product concerned was invoiced by EC Computers to the Customer.
5.9 On termination under Clause 15.1(a) or (b) or upon the Customer entering into a voluntary arrangement, if the Customer has not received the proceeds of any such sale or disposition, it will, if required by EC Computers, assign to EC Computers forthwith all rights against the person, firm or company by whom the proceeds are owed, identify the person, firm or company and provide all relevant information relating to the transaction with the third party.
6.1 EC Computers shall use its reasonable endeavour to deliver Products by the date stated upon the relevant acceptance of any Order but failure to do so shall not constitute a breach of this contract.
6.2 Any dates quoted or mentioned by EC Computers for delivery of the Products or the provision of the Services whether verbally or otherwise are estimates only and whilst EC Computers will use all reasonable endeavours to meet such dates it cannot guarantee to do so.
6.3 Time will not be of the essence in the delivery of the Products or the performance of the Services.
6.4 EC Computers shall deliver the Products to such address or addresses as notified by the Customer to EC Computers for each order, subject to prior agreement with the Customer. EC Computers shall be entitled to make partial deliveries of the Products or deliveries of the same by instalments. A signed delivery note shall be satisfactory proof that delivery has taken place.
6.5 Notwithstanding clause 5 above, the risk in any Product shall pass to the Customer on delivery of the same to the Customer at the address given by the Customer to deliver the Products.
6.6 All illustrations or specifications contained in any catalogues or publicity material produced by EC Computers are approximate only and are only intended to convey a general idea of the Products or Services.
6.7 EC Computers will accept no liability for non-delivery of, loss of or damage to any Products occurring prior to the delivery of the same to the Customer and no claim that the Products are not in accordance with the Contract will be accepted by EC Computers unless claims to that effect are notified in writing to EC Computers (with a copy to EC Computers’s carrier in the case of non-delivery, loss or damage): (a) Within two days of delivery in the case of loss, damage, or non-compliance with the Contract; or (b) Within two days of receipt of EC Computers’s invoice in the case of non-delivery.
6.8 In the event of a valid claim by the Customer under clause 6.7, EC Computers will at its option replace or repair the Product at its own expense but will be under no other liability to the Customer with respect to such claim whether in contract or in tort. All Products (or any part) replaced by EC Computers will become EC Computers’s property upon replacement.
6.9 If the Customer fails to give notice in accordance with clause 6.7, it will be deemed to have accepted the Products, the Products will be deemed to be in accordance with the Contract and the Customer will be bound to pay for the same.
7.1 Where the Customer requires EC Computers to carry out any configuration or installation services as defined in clause 1.1 herein either for the Customer and or the end-user EC Computers shall do so as sub-contractor to the Customer and this agreement and the terms contained herein shall constitute the sub-contract.
7.2 EC Computers will use all reasonable endeavours to provide the Services in accordance with the terms of the Contract and will ensure that the Services will be provided with all reasonable care and skill and by suitably trained and qualified persons.
7.3 If the Services are to be provided according to a time table (“the Timetable”) EC Computers shall use all reasonable endeavours to adhere to the timetable in providing the Services but, save as stated herein, time shall not be of the essence in the provision of the Services.
8. CANCELLATION AND RETURN
Upon receipt of a contract (Purchase order) for products or services the contract will be deemed as non-cancellable unless prior written agreement has been met. If the customer wishes to cancel this contract at any time prior to the delivery of goods and services, EC Computers will enforce a 20% restock fee. This fee will be invoiced to the customer and will be paid under the customer’s normal credit terms.
You are entitled to request a return of any goods for any reason within 5 working days from their receipt. Any damaged goods must be notified to us verbally (and in writing via e-mail or fax) within two working days of receipt. Any items found damaged after this time will not be accepted back for a return. As well as a full refund, EC Computers will also refund any relevant consequential loss involved such as posting or delivery charges if the products are found to be faulty, sold incorrectly or otherwise not fit for their intended purpose. If you are returning a faulty item, first establish whether or not the good(s) are in fact faulty. It may well be that the item works perfectly well but does not tie in with your system correctly due to a configuration or set up problem. If you are unsure about any of this, please contact us and we can pass on the relevant manufacturers details.
If the goods are definitely faulty or if they have been shipped in error, you need to complete the returns form. Once we have received and validated your form, you will be contacted and issued with a returns number (RMA number). This normally takes 1-2 business days but can take longer if any details on the form have been omitted. RMA numbers cannot be issued without our knowledge of the relevant serial numbers, invoice numbers and dates involved. Note that once issued, RMA numbers will only remain valid for a period of 10 working days. If goods are not returned within this period, the return will be closed. The Company must receive the completed RMA form back within 48 working hours from time of send. As soon as you have been issued with an RMA number, you can arrange for the goods to be returned to us. EC Computers cannot accept responsibility for damages caused in transit so please ensure that: The item(s) are properly packaged. Ensure that you use the original packaging and ensure that the products are wrapped securely to avoid movement/damage in transit. Items not packaged with a reasonable amount of care will be rejected. No labels, stickers or any parts have been removed.
The goods have not been defaced, altered, manhandled or subjected to any other form of intentional or careless damage. All supplied contents; inner and outer packaging, manuals, documentation and accessories must be included. No writing or markings are made on the packaging as this may affect our ability to accept the goods back. Goods are inspected by us on arrival and, if appropriate, tested. Where appropriate, replacement item(s) will be shipped. EC Computers reserve the right to decide whether to issue replacement goods or a credit. Items returned where EC Computers have arranged collection, and do not conform to these requirements, will be charged according to any damage incurred. EC Computers will only meet shipping costs for returns in the case of an error on our part or in cases where the goods are faulty, sold incorrectly or are not suitable for the purpose for which they are intended.
For account holders, it may be possible to arrange an advanced replacement. If you require replacement goods to be sent to you before we receive the returned items, you will be invoiced at the original sales price and we will quote your original purchase order number on all documentation followed by the reference /R at the end of the PO. Once we receive the returned products, and providing that they comply with the above procedure, we will credit your account with the appropriate sale price. The return of any products, whether correctly or incorrectly supplied, or whether faulty or damaged, may only be made with our prior authorisation. Any attempts to return products to us without following the procedures described above will be rejected.
9. DOA POLICY
9.1 Any Products failing within the specified period of either EC Computers’s invoice to the Customer or the Customer’s invoice to their customer shall be returned to EC Computers within 10 days of the date of advising the return to EC Computers, at the Seller’s expense, for full credit to the Customer, subject to the product not having become discontinued as defined by the manufacturer.
9.2 The specified period in 9.1 will be (a) 30 days for all products
9.3 Products not returned within 10 days of notification will not be credited
9.4 All products must be returned with their original packaging.
9.5 On acceptance of the returned product, a credit note will be issued by EC Computers to the Customer for 100% of the value originally invoiced.
9.6 Unless otherwise agreed, this clause does not apply to Laptop computers with cracked or damaged screens.
10.1 EC Computers, to the extent that it is permitted to do so, hereby assigns the benefit of any guarantee or warranty covering any defects in Products received by EC Computers under an agreement with the manufacturer or supplier of the relevant Product.
10.2 The warranty services (if any) will be that provided by the manufacturer and any validation procedures relating to that warranty service are the responsibility of the Customer.
10.3 EC Computers may in its discretion offer support or maintenance services with respect to Products.
10.4 The warranty of the manufacturer or supplier is in lieu of all other terms or conditions whether express or implied concerning the quality or fitness for purpose of Products and all such other terms and conditions are hereby excluded.
10.5 If any services are provided by EC Computers, EC Computers warrants that the Services will be carried out with reasonable care and skill and by suitably trained and qualified persons.
11. Year 2000
11.1 EC Computers undertakes that it will use all reasonable endeavours to obtain from the original manufacturer of the Products a warranty that the Products are Year 2000 Compliant, and to the extent that it is able, EC Computers will transfer to the Customer the benefit of any such warranty. For the purposes of this clause “Year 2000 Compliant” means that neither the performance nor the functionality of the Products shall in any way be affected by any date whether before, at or after 1st January 2000, that the Products shall in any way be affected by any date whether before, at or after 1st January 2000, that the Products will be capable of correctly processing all dates and that Year 2000 will be recognised as a leap year.
11.2 EC Computers will in no circumstances be liable to the Customer for any losses, claims or damages of whatever nature that the Customer may suffer as a result of the Products not being Year 2000 Compliant.
11.3 All other express or implied warranties or conditions relating to quality or fitness for purposes (whether implied by statute or otherwise) are hereby excluded in so far as they might apply in the event of the Products not being Year 2000 Compliant.
12.1 EC Computers will accept liability without limitation for death or personal injury caused by the negligence of EC Computers (and for any fraudulent misrepresentation).
12.2 The maximum liability of EC Computers whether in contract, tort or otherwise for any direct physical damage to tangible property of the Customer caused by a Default by EC Computers shall be limited to the lesser of £50,000 per incident or series of incidents or an amount equal to the sums paid by the Customer under the Contract during the preceding 6 months.
12.3 The maximum aggregate liability of EC Computers to the Customer whether in contract, tort or otherwise for any direct loss or damage (other than to tangible property) suffered by the Customer as a result of any Default of EC Computers shall be limited in aggregate to the lesser of £25,000 or an amount equal to the sums paid by the Customer under the Contract during the preceding 12 months.
12.4 EC Computers shall not be liable to the Customer whether in contract, tort or otherwise and even if foreseeable by or in the contemplation of EC Computers for: – (a) Any loss of profits, business, revenue, goodwill, data or anticipated savings, whether sustained by the Customer or any other person; or (b) Any special, indirect, or consequential loss whether sustained by the Customer or any other person.
12.5 Any advice or recommendations given to the Customer by EC Computers or its employees or agents as to storage, application, use or preference of the goods which is not confirmed in writing by EC Computers, is followed or acted upon entirely at the Customer’s own risk and accordingly EC Computers shall not be liable for any such advice or recommendation which is not so confirmed.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 All Intellectual Property Rights in or relation to the Products (including any manuals and operating documentation relating thereto) or in any materials (including Software) created by EC Computers during the course of providing the Services shall vest in EC Computers or its suppliers as the case may be and the Customer shall have no title to or interest in any such Intellectual Property Rights except to the extent specifically agreed by EC Computers.
13.2 The Customer will notify EC Computers immediately if it becomes aware of any illegal or unauthorised use of any of the Products or any of the Intellectual Property Rights in the Products and will assist EC Computers and/or its suppliers in taking all steps necessary to defend the owners’ rights.
13.3 The Customer undertakes to ensure that any Software which is sold to end-users or any other third party will be accompanied by any Licence Agreement (whether shrink-wrap or otherwise) relating to that Software and any other documentation which EC Computers or EC Computers’s suppliers may require.
13.4 Unless specifically authorised under a Licence Agreement, the Customer undertakes that it shall not (and that it shall not employ nor permit any third party) attempt to copy, adapt, amend, disassemble, de-compile or reverse engineer Software or any part thereof except to the extent allowed by English law.
14.1 Each party shall treat as confidential all information obtained from the other which is specifically designated as confidential or proprietary and shall not divulge such information to any person (except to such party’s own employees and then only to those employees who need to know the same) without the other party’s prior written consent.
14.2 This clause shall not extend to any information which was rightfully in the possession of a party prior to the commencement of the negotiations leading to a Contract, which is already public knowledge or becomes so at a future date (otherwise as a result of a breach of the clause) or which is trivial or obvious.
14.3 Each party shall ensure that its employees are aware of and comply with the provisions of this clause.
14.4 This clause shall apply for a period of 2 years following any termination of this contract
15.1 Without prejudice to any other rights or remedies EC Computers might have against the Customer EC Computers may terminate a Contract or suspend the performance of its obligations under a Contract forthwith by notice in writing to the Customer if: – (a) The Customer defaults in making payment for any of the Products or Services supplied by EC Computers within seven days of its due date; or
(b) The Customer defaults in any of its obligations under these terms or a Contract; or
(c) The Customer makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or
reconstruction) or a trustee receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the Defaulting Party; or (d) The Customer is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 be unable to pay his debts or any steps are taken to wind up the Customer, or an administrator, administrative receiver or receiver is appointed over the Customer’s business or any part of its assets.
15.2 Upon termination of a Contract under clause 15.1, EC Computers shall have the right, without prejudice to any other right or remedy available, to enter the Customer’s premises and repossess the Product or any of them and shall have the right to dismantle any machinery, product, item or equipment into which the Product or any of them have been incorporated and the Customer shall be responsible for all EC Computers’s costs and expenses in connection with so doing.
15.3 Those clauses capable of surviving termination shall do so.
16.1 EC Computers reserves the right to modify these terms and conditions upon notice in writing to the Customer. Any such modification will apply on the effective date specified in the said notice to all Orders, which are accepted by EC Computers on or after the date of notice. The Customer shall have thirty days from the date of notice within which to cancel any Order sent to EC Computers prior to the date of notice and not accepted by EC Computers at that date.
17.1 The Customer shall not assign or otherwise transfer any of its rights or obligations under a Contract whether in whole or in part without the prior written consent of EC Computers, which shall not be unreasonably withheld.
18.1 The Customer acknowledges that EC Computers has incurred significant costs in recruitment and training its employees to enable them to provide the Services. Accordingly the Customer agrees that it will not, and it will ensure that no other company within its Group will not, solicit or approach in any way, any of EC Computers’s employees who are involved in the provision of the Services with a view to offering them employment or to solicit services from them on their own account (whether for the Customer or another party) during the period of the Contract and for a period of six (6) months after termination or expiration of the Contract.
18.2 The Customer acknowledges that damages will not be an adequate remedy for EC Computers if the Customer breaches clause 7.1 and that EC Computers will be entitled to seek injunctive relief and any other equitable remedies with respect to such breach.
18.3 If any employee of EC Computers leaves the employment of EC Computers as a result of a breach by the Customer of clause
18.4 and commences employment with, or provision of services to, the Customer or any other member of the Customer’s Group it shall pay EC Computers 50% of the higher of: – (a) The annual salary (including any benefits-in-kind, bonus payments, commissions and other emoluments) of the employee at the date that they ceased to be an employee of EC Computers; and
(b) The annual salary of the employee at the time they commence employment by the Customer or other member of the Customer’s Group and the Customer acknowledges that any such payment is by way of liquidated damages and is a reasonable and genuine pre-estimate of EC Computers’s losses.
19.1 If any provisions, or portions thereof, of a Contract are held to be invalid and unenforceable under any applicable statute or rule of law, they are to that extent to be deemed omitted and the validity and/or enforceability of the remaining provisions of the Contract shall not be impaired or affected by that omission.
20. FORCE MAJEURE
20.1 Neither EC Computers nor the Customer shall be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Products, if the delay or failure is beyond that party’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control: –
20.1.1 Act of God, explosion, flood, tempest, fire or accident
20.1.2 War, sabotage, insurrection, civil disturbance or requisition;
20.1.3 Acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
20.1.4 Import or export regulations or embargoes;
20.1.5 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of either the Seller or the Buyer or of a third party);
20.1.6 Power failure or breakdown in machinery.
21.1 All notices that are required to be given hereunder shall be in writing and shall be sent to the registered address of the party in question.
21. EXPORT CONTROL
22.1 The Customer acknowledges that certain Products may be subject to export controls imposed by United Kingdom or other Governments and undertakes to apply for and obtain any necessary licences or other consents that may be necessary to export or take any product (or any part thereof) out of the United Kingdom.
23.1 All Contracts shall be governed by, and construed in accordance with, English law and the parties submit to the exclusive jurisdiction of the English courts.
24.1 The waiver by either party of a breach or default of any of the provisions on this Agreement by either party shall not be construed as a waiver of any succeeding breach of the same or other provisions, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder operates as a waiver of any breach or default by either party.
25. RIGHTS OF THIRD PARTIES
25.1 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract. No person who is not a party to this Contract (including any employee, officer, agent, representative or subcontractor of either party) shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any term of this Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties which agreement must refer to this clause. Please note the following regarding Data Protection Act 1998.
We may transfer information about you to our bankers/financiers for the purposes of providing services for the following:
Obtaining credit insurance
Making credit reference agency searches
Assessment and analysis, including credit scoring, product and statistical analysis
Protecting our interests
We will provide you with details of our bankers/financiers and that of any credit reference agencies used on request.
26. IT RECYCLING
Our recycling service is only intended for use by people registered with us and resident in Great Britain and Northern Ireland. At our complete discretion we may accept or reject orders from people outside of these territories.
You must own all rights, title and interests in any device(s) that you return to us.
Ownership of the device(s) will pass to us when we receive the device(s), in accordance with these terms and conditions, and we have sent payment to you (if payment agreed), when, hence, a contract will be formed.
The contract between you and us is binding on you and us and on our respective successors and assigns.
You may not transfer, assign, charge or otherwise dispose of a contract, or any of your rights or obligations arising under it, without our prior written consent.
We may transfer, assign, charge, sub-contract or otherwise dispose of a contract, or any of our rights or obligations arising under it, at any time during the term of the contract.
You may cancel the contract with us at any time up to the time when you return the device to us (“cooling-off period”), providing:
The contract was negotiated and concluded exclusively by means of distance communication (including, but not limited to, telephone, letter, fax or email); and
You are a person acting outside the purposes of any business.
When cancelling during the cooling-off period, you need not give us any reason for cancelling the contract, nor will you have to pay any administration charges.
To cancel the contract you must notify us in writing.
Other than if the device does not meet our terms and conditions (see below), this contract cannot be cancelled after you have sent your device(s) to us (outside the “cooling-off period”).
By placing a request through our site, you warrant that:
You are resident in Great Britain or Northern Ireland; and
You are accessing our site from that country; and
You are legally capable of entering into a binding contract; and
You are at least 18 years old; or
If you are under 18 years of age, that you have obtained your parent’s or guardian’s consent to sell your phone to us for the sum indicated via our website.
You and your parents or guardians release us of any liabilities or claims that may arise if you send the phone to us in breach of this warranty.
Your statutory rights are not affected by this contract.
For the purposes of these terms and conditions, “consumer” means an individual who neither makes this contract in the course of a business, nor holds himself out as doing so, as defined by the Unfair Contract Terms Act 1977.
Businesses and Organisations
By placing an order through our site, you warrant that:
You are authorised to act on behalf of the registered business or organisation; and
You are based in Great Britain or Northern Ireland; and
You are accessing our site from that country; and
You are legally capable of entering into a binding contract with us.
Each device sold should match the make and model and/or specification in the order and meet the grading condition that you informed us of.
If a device fails to meet our terms and conditions we will issue a supplementary charge. If you choose to decline, we will return the device to you.
You are responsible for cancelling any airtime contract linked to each device.
Should you return mobile phones, we are not responsible for any call costs arising before, or after, receipt of your handset, or arising from any other circumstances whatsoever.
Where applicable please ensure you remove your SIM card before sending us your device. We accept no liability in the event that a SIM card is sent with a device and where charges are incurred. You shall continue to be responsible for such charges. Any SIM cards received by us are non-returnable and will be destroyed.
Please remember that by sending your device to us, you agree to release us from all and any claims, losses or damages with respect to the device, any data stored or contained therein or on any media used in conjunction with the device (whether in the form of personal details, SMS, photos, games, songs or other data (“Data”). We accept no responsibility in relation to the security, protection, confidentiality or use of such data and it is your responsibility to ensure that such data is removed from the phone prior to you sending it to us.
Lost, Stolen or Counterfeit Mobile Phones and Devices
Selling a mobile phone or device which you do not own may amount to a criminal offence. We support and adhere to the ‘Stop Stolen Mobiles Being Recycled’ code of practice set by the Home Office and the National Mobile Phone Crime Unit.
We will check the IMEI/Serial number of all mobile phones and devices received on the CheckMEND (www.checkmend.com) database of lost and stolen property records to ensure no lost or stolen items are purchased.
Counterfeit phones or devices are fake items which are manufactured to resemble products made by another company in breach of their Copyright.
If a mobile phone or device is found to have a record that indicates it is counterfeit or has been lost or stolen or we become aware of any other issue relating to its ownership, we will notify the seller by email and quarantine the mobile phone or device for an initial period of 28 days
(“the Quarantine Period”). Payment for the mobile phone or device will be withheld by us in the event that it has been identified as counterfeit or until the CheckMEND record does not show the mobile phone as stolen or lost.
In such circumstances you will be required to contact CheckMEND to prove that you are the rightful owner of the mobile phone or device and have the lost or stolen records associated with it cleared within the Quarantine Period and/or resolve any other issue relating to its ownership.
If during the Quarantine Period the mobile phone or device is cleared on the CheckMEND database and any other issue relating to ownership of the same is resolved, your sale will be processed and paid for as normal.
However, where the mobile phone or device is counterfeit or is not cleared on CheckMEND within the Quarantine Period, we will be required by law to hold onto the mobile phone or device, pass it to the Police or other law enforcement body or dispose of it, and by entering into this contract, you expressly agree to this action. You will not receive any payment if such steps are taken.
UK legislation states that we cannot under any circumstances return or pay for a mobile phone or device which is counterfeit, lost or stolen or recorded as such.
If you have received payment from us for a mobile phone or device which we subsequently become aware of an issue relating to ownership, you agree to immediately reimburse us in full, within 3 business days following a written request by us, for any such payment pending an investigation by us or any law enforcement body into ownership of the mobile phone or device.
If we at any time become aware of any issues relating to the ownership of the mobile phone or device, you agree to co-operate with us fully with a view to resolving the issues. You may also be contacted by the Police and/or other law enforcement authorities.
We may disclose seller details to the Police or other authorised bodies (such as, but not limited to, network operators and insurance companies) for the purpose of investigating or preventing a crime. By entering into this contract you agree to us supplying data to the police or other authorised bodies for the purpose of the prevention and detection of crime, arrest and prosecution of offenders or for the recovery of stolen property.