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1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions of Business (save where the context otherwise requires) the following expressions shall have the following meanings:-
1.1.1 “ARKANCE UK Limited” means ARKANCE UK Limited (Company Registration No. 02486719) whose registered office is at Gatwick House, Peeks Brook Lane, Horley, Surrey, RH6 9ST
1.1.2 “Client” means the person(s) purchasing the Products and Services from ARKANCE UK Limited
1.1.3 “Confidential Information” means information concerning or relating to know-how, trade secrets, technical processes, customer, client and supplier lists, price lists, reports, memoranda, products, materials, computer programs, details of contractual arrangements and any other matters concerning the business affairs or finances of ARKANCE UK Limited or the Client (as the case may be) or clients or customers of or other persons having dealings with either of them
1.1.4 “Consumer” means an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession
1.1.5 “Distance contract” means a contract concluded between ARKANCE UK Limited and a Client under an organised distance sales or service-provision scheme without the simultaneous physical presence of ARKANCE UK Limited and the Client, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded
1.1.6 “Intellectual Property Rights” means any and all patents, trademarks, rights and names, rights and designs, copy rights and database rights (whether registered or not) and any applications to register or rights to apply for registration or any of the foregoing, rights and confidential information and all other intellectual property rights of a similar or corresponding character which may exist now or in the future in any part of the world
1.1.7 “Off-premises contract” means
1.1.7.1 a contract concluded in in the simultaneous physical presence of ARKANCE UK Limited and the Client, in a place which is not the business premises of ARKANCE UK Limited;
1.1.7.2 a contract for which an offer was made by the Client in the simultaneous physical presence of ARKANCE UK Limited and the Client in a place which is not the business premises of ARKANCE UK Limited;
1.1.7.3 a contract concluded on the business premises of ARKANCE UK Limited or through any means of distance communication immediately after the Client was personally and individually addressed in a place which is not the business premises of ARKANCE UK Limited in the simultaneous physical presence of ARKANCE UK Limited and the Client; or
1.1.7.4 a contract concluded during an excursion organised by ARKANCE UK Limited with the aim or effect of promoting and selling Products or Services to the Client
1.1.8 “Privacy Policy” means the privacy policy displayed on the Website
1.1.9 “Products” means those products that ARKANCE UK Limited advertises or makes available for sale on the Website or any other products which are required by the Client and which ARKANCE UK Limited agrees to provide to the Client
1.1.10 “Property” means the property of the Client as notified in writing by the Client to ARKANCE UK Limited
1.1.11 “Services” means any services that ARKANCE UK Limited advertises or makes available for sale on the Website or any other services which are required by the Client and which ARKANCE UK Limited agrees to provide to the Client
1.1.12 “Terms” means these Terms and Conditions of Business governing the sale and provision by ARKANCE UK Limited and the purchase by the Client of the Products and Services including (but not limited to) any special terms and conditions that may be agreed in writing between ARKANCE UK Limited and the Client, the Privacy Policy and the Terms and Conditions of Website Usage
1.1.13 “Terms and Conditions of Website Usage” means the terms and conditions of website usage displayed on the Website
1.1.14 “Website” means the means the ARKANCE UK Limited website with the address https://arkance.world/gb-en or the ARKANCE UK Limited community website with the address www.cadlinecommunity.co.uk and any sub-domains of these sites unless expressly excluded by separate terms and conditions governing the use of them
1.2 Words importing the singular number only shall include the plural number and vice versa and where a party consists of more than one person obligations and agreements of that party shall take effect as joint and several obligations and agreements.
1.3 The clause headings in these Terms are for ease of reference only and shall not be taken into account in the construction or interpretation of the clauses to which they refer.
1.4 Words importing the neuter shall include the masculine and feminine and words denoting natural persons shall include corporations and firms and all such words shall be construed interchangeably in that manner.
1.5 Words denoting an obligation on a party to do any act matter or thing shall include an obligation to procure that it be done and words placing a party under a restriction shall include an obligation not to permit or allow infringement of such restriction.
1.6 Any reference in these Terms to a statute or provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
1.7 These Terms supersede any prior agreement (oral or in writing) between the parties and the parties acknowledge that these Terms contain the whole agreement between them and that the Client has not relied upon any oral or written representations, statements, collateral or other warranties, assurances, or undertakings made by ARKANCE UK Limited or its employees or agents.
1.8 These Terms shall be governed by the laws of England and Wales and the parties shall submit any dispute arising hereunder to the exclusive jurisdiction of the Courts of England and Wales.
2. REQUEST FOR PRODUCTS AND SERVICES
2.1 If the Client wishes to purchase Products and/or Services the Client will submit an order to ARKANCE UK Limited using the Website or by telephone, email, post or fax (details of which can be found on the Website), such order detailing the Products and/or Services required by the Client together with all necessary information and data in relation to the Products and/or Services required by the Client (in respect of which the Client shall ensure such information is complete and accurate).
2.2 In placing an order for the Products and/or Services the Client confirms to ARKANCE UK Limited that the Client accepts and understands these Terms and agrees to be bound by them. The Client’s order is subject to confirmation and acceptance by ARKANCE UK Limited and a contract will only come into being upon such acceptance and confirmation in accordance with these Terms.
2.3 ARKANCE UK Limited shall be entitled to make any changes in the specifications of the Products which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Products are to be supplied to the Client’s specification, which do not materially affect their quality or performance.
2.4 ARKANCE UK Limited reserves the right, by giving notice to the Client at any time before delivery, to increase the price of the Products or Services to reflect any change in delivery dates, quantities or specifications for the Products and Services which are requested by the Client, or any delay caused by any instructions of the Client or failure of the Client to give ARKANCE UK Limited adequate information or instructions.
2.5 The Client further agrees and acknowledges that:
2.5.1 packaging and transport charges and expenses are payable by the Client (unless otherwise stated);
2.5.2 travel and parking expenses (if any) are payable by the Client for Services provided at the Client’s Property; and
2.5.3 any applicable value added tax excise, sales or taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Products and Services, are payable by the Client.
2.6 Subject to clause 2.8, 2.9 and clause 3, in the event that the Client wishes to cancel the Client’s order, the Client must notify ARKANCE UK Limited in writing within 24 hours of making the order which for the purpose of this clause only, time shall be of the essence, and such cancellation will only be valid if it is acknowledged, confirmed and accepted byARKANCE UK Limited in writing. The Client will be liable to pay for the Products and Services provided up to the date of cancellation and any costs, losses, damages or other expenses incurred as a result of cancellation (including but not limited to the work carried out and any goods, materials or services supplied or ordered on the Client’s behalf, loss of profit and all cancellation or termination fees payable by ARKANCE UK Limitedto any third party). If any Products ordered by the Client have already been despatched by ARKANCE UK Limited to the Client, the Client must at their own cost return the Products to ARKANCE UK Limited’s place of business immediately.
2.7 Subject to clause 2.8, 2.9 and clause 3, in the event that the Client wishes to amend or postpone the Client’s order, the Client must notify ARKANCE UK Limited in writing within 24 hours of making the order which for the purpose of this clause only, time shall be of the essence, and such amendment or postponement will only be valid if it is acknowledged, confirmed and accepted by ARKANCE UK Limitedin writing. has the right to accept such amendment or postponement or (at its sole discretion) to treat these Terms as cancelled. If ARKANCE UK Limited accepts the amendment or postponement the Client will within 14 days from the date of invoice pay to ARKANCE UK Limitedall costs associated with such amendment or postponement (including but not limited to costs in connection with the Products supplied and Services carried out and any goods, materials or services supplied or ordered on the Client’s behalf, loss of profit and all amendment and postponement fees payable by to any third party).
2.8 In the case of any Products ordered by the Client that are of a specialist, unique and individual nature or which are not advertised or made available for sale on the Website (“Bespoke Products”), unless agreed by in writing, will not process and/or commence work relating to the Customer’s order for a period of 3 days from the date of acceptance and confirmation by of the Customer’s order for the Bespoke Products and during that 3 day period, which for the purposes of this clause only, time shall be of the essence, the Client may cancel or change the order in writing to and such cancellation or change shall only be valid if it is acknowledged, confirmed and accepted by in writing and will be subject to any cost amendment which may be required. Due to the unique nature of the Bespoke Products ordered by the Client, upon the expiry of the 3 day period from the date of receipt by of the Client’s order, the Client will not be entitled to cancel or change the order and will be liable for payment in full.
2.9 If agrees with the Client to process and/or commence work relating to the Client’s order for Bespoke Products prior to the expiry of the 3 day period referred to in clause 2.8 and the Client then cancels or changes the order within the 3 day period and the cancellation or change is accepted by , has the right to charge the Client a cancellation or amendment fee depending on the amount of work carried out in relation to the Client’s order (including but not limited to the work carried out and any goods, materials or services supplied or ordered on the Client’s behalf, loss of profit and all cancellation/termination/amendment fees payable by to any third party). If any Bespoke Products ordered by the Client have already been despatched by to the Client, the Client must at their own cost return the Bespoke Products to ’s place of business immediately.
3. TRANSACTIONS WITH CONSUMERS – CONSUMER CONTRACTS (INFORMATION, CANCELLATION & ADDITIONAL CHARGES) REGULATIONS 2013 (“THE REGULATIONS”)
3.1 In cases where the Client is purchasing as a Consumer under a Distance contract or an Off-premises contract and the Regulations apply, the Client has the right to cancel their order for a full refund. However, this does not apply to:
3.1.1 Products and Services where the price is dependent on fluctuations in the financial market, and cannot be controlled by and which may occur within the cancellation period;
3.1.2 the supply of Bespoke Products or other Products made to the Client’s specification or are clearly personalised;
3.1.3 the supply of Products which are liable to deteriorate or expire rapidly;
3.1.4 contracts where the Client has specifically requested a visit from for the purpose of carrying out urgent repairs or maintenance;
3.1.5 contracts made at public auction;
3.1.6 the supply of sealed audio or sealed video recordings or sealed computer software, if those products become unsealed after delivery;
3.1.7 the supply of accommodation, transport of goods, vehicle rental services, catering services related to leisure activities, if the contract provides for a specific date or period for performance;
3.1.8 Products that become mixed inseparably (according to their nature) with other items after delivery.
3.2 Where the Regulations apply, the Client is entitled to cancel these Terms if the Client so wishes, provided that the Client exercises the right to cancel no longer than 14 days after:
3.2.1 the day on which the Client acquires or a third party other than the carrier and indicated by the Client acquires physical possession of the Products; or
3.2.2 in the case of a contract relating to multiple Products ordered by the Client in one order and delivered separately, the day on which the Client acquires or a third party other than the carrier and indicated by the Client acquires physical possession of the last Product; or
3.2.3 in the case of a contract relating to delivery of Products consisting of multiple lots or pieces, the day on which the Client acquires or a third party other than the carrier and indicated by the Client acquires physical possession of the last lot or piece; or
3.2.4 in the case of a contract for regular delivery of Products during a defined period of time, the day on which the Client acquires or a third party other than the carrier and indicated by the Client acquires physical possession of the first Product; or
3.2.5 in the case of Services the day of conclusion of the contract
3.3 To cancel under this clause 3, the Client must inform of their decision to cancel by a clear statement (for example, a letter sent by registered post to: Sales at ARKANCE UK Limited, Gatwick House, Peeks Brook Lane, Horley, Surrey, RH6 9ST or email to: [email protected]). The Client can use the model cancellation form set out in Schedule 1 of these Terms but it is not obligatory.
3.4 In the event the Client wishes to exercise their right of cancellation under the terms of this clause 3, the Client must retain possession of the Products and take reasonable care of them.
3.5 Unless has offered to collect the Products or in the case of an Off-premises contract the Products were delivered to the Client’s property when the contract was entered into and could not, by their very nature, normally be returned by post, the Client should return the Products at the Client’s cost within 14 days of such cancellation and will reimburse the Client (using the method used to pay for the original transaction unless the Client agrees otherwise) the amount in relation to the Products to which the cancellation rights under this clause apply. This includes the cost of delivery, unless the Client expressly chooses a kind of delivery costing more than the least expensive common and generally acceptable kind of delivery offered by , in which case is to reimburse the Client for an amount the Client would have paid if the Client chose the least expensive common and generally acceptable kind of delivery offered by .
3.6 will make the reimbursement to the Client without undue delay and not later than:
3.6.1 14 days after the day on which it receives back from the Client any Products supplied;
3.6.2 (if earlier) 14 days after the day the Client provides evidence that the Client has returned the Products; or
3.6.3 if no Products were supplied, 14 days after the day on which is informed about the Client’s decision to cancel this contract
3.7 has the right to deduct an amount from any refund due to the Client, or request payment from the Client, to reflect the loss in value of any Products supplied as a result of handling of the Products by the Client beyond what is necessary to establish the nature, characteristics and functioning of the Products.
3.8 If the Client wishes for and instructs in writing to commence works and/or to supply and/or provide Products and/or Services before the expiry of the relevant cancellation period referred to in this clause 3, the Client acknowledges and agrees that the Client loses their right to cancel once the contract has been performed. If the Services provided by have not been completed and the Client cancels within the cancellation period, the Client will have to pay for the part of the Services that has carried out. If Products were supplied with Services, the Client has the right to return the Products if the Client cancelled within the relevant cancellation period but the Client will be liable to pay for some or all of the Services provided.
4. TIME NOT OF THE ESSENCE
shall use its reasonable endeavours to meet any dates and times specified for performance of its obligations contained in these Terms. However, all such dates and times are approximate only and shall not be deemed to be in breach of these Terms and shall not be liable in any manner for any delay, for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the performance of its obligations and, subject to clauses 2.6, 2.7, 2.8, 2.9, 7.6 and 9.2, time shall not be of the essence of this Contract.
5. CLIENT’S OBLIGATIONS
5.1 The Client shall permit (where applicable) , its employees, sub-contractors, agents and other appointed representatives access to the Property at all reasonable times for the purposes of providing the Services.
5.2 The Client will be responsible for any loss or damage to any goods, materials, tools or equipment delivered to or stored at the Property except to the extent that such damage arises from the failure of to take reasonable care.
5.3 The Client shall at its own cost ensure that all information, data, documentation, and material (“Information”), all ventilation, light, telephone, power supplies and equipment and all personnel engaged by or associated with the Client and required for the performance of the Services by in accordance with these Terms are made available to at all reasonable times, and in the case of Information that is complete and accurate.
5.4 The Client shall ensure that any goods, products or other equipment supplied by it to for the purpose of carrying out the Services are of satisfactory quality and fit for their purpose.
5.5 The Client shall at all times be solely responsible for the security, integrity and reliability of all programs, equipment, data and other information (confidential, sensitive or otherwise) at the Property before, during and after the performance of the Services by in accordance with these Terms.
5.6 The Client shall ensure at all times that all software relating to the provision of the Services by is of a release version or level which is compatible with the current level of hardware, firmware and other software and is licensed for use by the Client and that the software is available at the Property and not out of date or incompatible and is readily installable and in good operational condition and not damaged or corrupted
5.7 The Client shall comply at all times with any obligations imposed on it under the Data Protection Act 2018, or any other data protection obligations applicable to it, in relation to the provision of information and other material to to facilitate the carrying out of the Services, and the Client shall ensure that the provision of any such information or other material to will not breach any confidentiality obligations that may be imposed upon it.
5.8 The Client shall ensure that it has a valid back-up system in respect of its I.T. desktop and server operating systems and the Client shall regularly check the same to ensure that it is operating correctly. If at any time such back-up system is not operating correctly, the Client must immediately notify in writing of the same.
5.9 The Client will utilise all software and equipment in accordance with the manufacturers’ or suppliers’ operating manuals and instructions and promptly and regularly carry out all operations and other support routines (if any) as are set out or referred to therein.
5.10 The Client will notify immediately if the software develops an operating fault Provided that if the Client shall fail to notify in accordance with this clause of any operating fault, ’s liability under these Terms shall be limited to such support as would have been required had the fault been reported when it first arose and the Client shall be liable for any additional services support or repairs which are necessitated as a result of the delay in reporting the defect or operating fault to .
5.11 The Client will afford to , its staff, agents and sub-contractors, whilst on the Property, the same protection for health and safety as is due to the Client’s employees and if , its staff, agents and sub-contractors are required to enter the premises of a third party, the Client will procure that the third party also affords such protection to , its staff, agents and sub-contractors as is due to its employees.
5.12 The Client shall be responsible for ensuring (except to the extent that instructions as to the use or sale of Products are contained in the packaging or labelling of the Products) that any use or sale of the Products by the Client is in compliance with all applicable statutory handling and sale of the Products by the Client and in accordance with directions given by (if any) or by any competent governmental or regulatory authority.
5.13 The Client acknowledges and agrees that in connection with the Client’s use of the Website, the Client is bound by the Privacy Policy and the Terms and Conditions of Website Usage. In the event of any conflict with the provisions of these Terms and the said Privacy Policy or Terms and Conditions of Website Usage, these Terms shall prevail.
6. ARKANCE UK’S OBLIGATIONS
6.1 The Products and any goods and materials supplied by in relation to the Services shall be of satisfactory quality and fit for their purpose. The Client must however satisfy itself that the Products and any goods and materials supplied by in relation to the Services are of the correct specification and designed for the required purpose.
6.2 If the Client requests that uses goods or materials supplied by the Client for the purposes of providing the Services, shall do so on the strict understanding that has no responsibility as to their quality or suitability and any loss or damages which may flow from the use of such goods or materials will be the sole responsibility of the Client.
6.3 shall provide all Services under these Terms using reasonable care and skill.
6.4 acknowledges its statutory responsibility to co-operate with the Client’s health and safety requirements Provided that it is given express notice of such requirements.
6.5 Where applicable, agrees to advise the Client in writing in accordance with procedures that it has put in place (including testing with the latest commercially available virus detection software if applicable) that any software supplied under these Terms and used in connection with the Services is not at the time of supply infected by viruses and/or logic bombs, worms, Trojan horses and any other types of disruptive, destructive or nuisance programs.
6.6 shall comply at all times with any obligations imposed on it under the Data Protection Act 2018, or any other data protection obligations applicable to it which arise from the entering into of these Terms.
7. DELIVERY OF PRODUCTS
7.1 Delivery shall be deemed to take place when:
7.1.1 in the case of Products which are to be collected by the Client from at ’s premises, the date on which notifies the Client that the Products are available for collection;
7.1.2 in the case of Products which are to be delivered to Client, from the moment that the Products are signed for or, if the Client fails to take delivery of the Products from the moment that has tendered delivery of the Products; or
7.1.3 in the case of Products to be installed by , from the moment that notifies the Client that the installation is complete.
7.2 The price for the Products, if appropriate, shall include the cost of delivery to the address specified in the Client’s order. will not be required to deliver an order in instalments or to more than one address. However, if the Client requests to deliver the Products in instalments or to a different address than that specified in the Client’s order, will be entitled to make an additional charge to the Client calculated in accordance with the extra costs incurred by it in respect of such delivery.
7.2.1 If you purchase a service or subscription, then by clicking on the “submit order”, “buy” or similar termed button and completing your purchase, you expressly agree, confirm and acknowledge that your service or subscription will continue for [the period set out in the order] (“Initial Term”) and shall automatically extend for periods equal to the length of the Initial Term (“Extended Term”) at the end of the Initial Term and at the end of each Extended Term. A party may give written notice to the other party, not later than [10 days] before the end of the Initial Term or the relevant Extended Term to terminate the service or subscription at the end of the Initial Term or the relevant Extended Term as the case may be.
7.2.2 will take payments in respect of each relevant Extended Term 5 working days before the expiry of the Initial Term or relevant Extended Term, as the case may be, to confirm payment before the relevant renewal of the service or subscription.
7.2.3 will send you at least one email to remind you of each upcoming extension/renewal of the service or subscription setting out the terms of that extension/renewal and any reasonable steps you must take if you do not want to extend/renew.
7.2.4 If the price applicable for the services or subscription in relation to any Extended Term is to change from that payable under the Initial Term or any previous Extended Term, as the case may be, the service or subscription will automatically terminate at the end of the Initial Term or the relevant Extended Term, as the case may be. will inform you of any such price change and give reasonable notice of the automatic termination. If you wish to renew at the new price, matters will be processed as a new order in accordance with ’s terms and conditions.
7.2.5 These online purchase and autorenewal terms contained in this agreement will apply to each Extended Term.
7.2.6 Cancellation and refund. You may cancel any automatic renewal of your product, service and/or subscription purchase in accordance with the terms of ’s terms and conditions at any time before the commencement of the Extended Term and for a period of 14 days after the commencement of that Extended Term [by giving written notice to us].
7.3 Any delivery date given by is approximate only and time for delivery shall not be of the essence unless expressly agreed and stated by in writing. The Products may be delivered by in advance of any delivery date given by it upon giving reasonable notice to the Client.
7.4 If the premises or property to which the Products are delivered are, at the time of delivery, closed, there is no answer, or if delivery is not accepted or if the Client fails to take delivery of the them or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Products to be delivered, will retain the Products until the Client has made alternative arrangements to accept delivery acceptable to and will be entitled to make an additional charge (to include but not limited to costs of storage and insurance charges) to the Client in respect of such.
7.5 All Products supplied by are at the Client’s risk from the moment of delivery under this clause 7 and the Client should insure the Products against loss or damage.
7.6 Any claim by the Client in respect of non-delivery of Products ordered by the Client must be made in writing to within 3 days of the date of delivery, which for the purposes of this clause only, time shall be of the essence, upon receipt of which shall deal with the claim as it sees fit. Failure to comply with this time period will render any potential claim void.
8. PRICE AND PAYMENT
8.1 The price for the Products and Services will be as shown in ’s current price and/or product list as amended from time to time and displayed on the Website, or as notified to the Client by . In the event that the price for the Products and/or Services changes between an order being placed by the Client and the acceptance of that order by , will contact the Client prior to processing the order and agree the price to be paid by the Client.
8.2 All sums payable by the Client pursuant to this Contract are (unless otherwise stated) exclusive of any Value Added Tax or any other applicable tax or levies which the Client will pay in addition on the due date for payment.
8.3 Unless otherwise agreed in writing, payment can only be made in pounds sterling and only in advance by bank transfer, cheque, or by credit or debit card via, if applicable, secure online payment. will not process or commence work relating to the Client’s order until such payment is made in full and is received by it. In the case of payment by credit or debit card, details of the credit or debit card are to be provided to by the Client and the Client authorises to deduct from the credit or debit card those sums due to it in accordance with these Terms. will not pass on the Client’s credit or debit card details to any third party (save as to the relevant payment processing agency). The Client undertakes that all details the Client provides to for the purposes of ordering and purchasing the Products and/or Services are correct, that (where applicable) the credit or debit card being used belongs to the Client and that there are sufficient funds to cover the cost of the Products and/or Services ordered.
8.4 The Client confirms that it consents to the transfer of data held concerning the Client by to any purchaser or prospective purchaser of only.
8.5 Should the Client fail to pay any invoice, or any part thereof, submitted by , may, without prejudice to any other right or remedy available to it, charge the Client interest (both before and after judgment) at the rate of 4% above the base rate of the Bank of England from the due date until payment is made in full.
8.6 Ownership of the Products, goods and materials (if any) supplied by or its agents, whether installed or not, shall not pass to the Client until all sums due to (whether under these Terms or any other agreement) have been paid in full and until such time the Client shall keep such Products, goods and materials in good repair and condition and properly protected and insured and designated in such a manner as clearly shows that the Products, goods and materials remain the property of and shall not pledge or charge the Products, goods and materials by way of security for any indebtedness of the Client, and shall at any time be entitled to enter the Property, or onto any property at which reasonably believes the Products, goods or materials to be, to remove any item the subject of the Services or any Products, goods or materials for which the Client has not paid in full, or to carry out an inspection to ensure compliance with the storage and identification provisions of this clause 8.
8.7 In the event that the Client sells or transfers the Products to a third party before legal and beneficial title has passed to it under these Terms, the proceeds of the sub-sale or transfer (or such proportion as is due to ) shall be held by the Client on behalf of . The Client shall ensure that such moneys are held separately from, and are in no way mixed with, any other moneys or funds and that all moneys held on ’s behalf are identified as such.
8.8 For the avoidance of doubt, the Client’s right to possession of the Products or any other goods or materials in which maintains legal and beneficial title shall terminate upon the happening of any of the events referred to at clause 15 of these Terms.
8.9 shall be entitled to cease or suspend the supply of any Products or Services to the Client until such time as all outstanding fees and interest are paid in full and shall be entitled to exercise a lien over any items, equipment or documentation belonging to the Client which may be in the possession of until all moneys due under these Terms have been paid.
8.10 All sums payable to under these Terms shall become due immediately upon termination of these Terms despite any provision to the contrary.
8.11 Payment is not considered received from the Client until receives notification of cleared funds representing the amount paid in its bank account or the bank account of its agent or nominee.
8.12 The Client shall make all payments due under these Terms without any deduction whether by way of set-off counterclaim or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by to the Client.
9. PRODUCT INSPECTION
9.1 Upon delivery of the Products to the Client, the Client will inspect the Products.
9.2 If during the inspection of the Products by the Client, the Client discovers any damage to, shortage of or any fault in the specification of the Products, the Client must notify in writing of such damage (and any further damage discovered) or shortage or fault in specification within 3 working days of delivery, which for the purpose of this clause only, time shall be of the essence. Failure to comply with this time period will render any potential claim void.
9.3 Once notified in accordance with clause 9.2 of the damage, shortage or fault in specification by the Client, will at its option:
9.3.1 As soon as reasonably practicable deliver to the Client to the address specified on the Client’s order any shortage of the Products provided that is satisfied that there is such a shortage of Products; or
9.3.2 Within 3 days of receiving such notification contact the Client to discuss matters and, if appropriate, to arrange to inspect the damaged Products and if satisfied that:
9.3.2.1 the damage occurred prior to delivery of the Products to the Client; and
9.3.2.2 the Products concerned have not been worked upon or fitted
will use its reasonable endeavours to replace the damaged Products as soon as practicable thereafter or if such is not possible, will provide the Client with a credit note in respect of those Products; or
9.3.3 Within 3 days of receiving such notification contact the Client to discuss matters and, if appropriate, to arrange to inspect the Products which are alleged to have a fault in their specification and if satisfied that the Products do not meet their specification (or any amended specification made in accordance with the provisions of clause 2) will use its reasonable endeavours to replace the Products as soon as practicable thereafter or if such is not possible, will provide the Client with a credit note in respect of those Products
9.4 In the event that accepts that the Products are to be replaced or a credit note issued in accordance with this clause 9, is under no obligation to provide any replacement Products or to issue a credit note until the Products have been returned to it by the Client in their original condition with all packaging and documentation.
10. NO WARRANTY
10.1 Unless otherwise stated and agreed in writing, the Products or materials used in the Products are not manufactured by and gives no express warranty to the Client in respect of such Products, material, their performance or durability. will where possible pass on such guarantees as manufacturers/suppliers provide and will notify manufacturer/suppliers of any written complaints made by the Client to it relating to any Products manufactured/supplied by them.
10.2 For the avoidance of doubt the Client acknowledges and agrees that ’s employees or agents are not authorised to make any representations concerning the Products and Services unless confirmed by in writing. In entering into these Terms the Client acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not confirmed by in writing.
10.3 warrants as an Autodesk Reseller that it has legally acquired the licenses and intellectual property rights to grant the Client the right to use any such software supplied as part of the Services in accordance with these Terms.
11. LIABILITY
11.1 All Products and any goods and materials supplied by in relation to the Services by are believed to be of satisfactory quality and fit for their purpose. The Client must however satisfy itself that the Products and any goods and materials supplied by in relation to the Services are of the correct specification and designed for the required purpose.
11.2 The Client shall only make a claim of any nature, if any, arising out of or in connection with these Terms against and shall not make any claim of any nature against any persons or persons involved in the performance of these Terms.
11.3 shall not be liable for any defect in any products and materials supplied nor for any works carried out which arise from fair wear and tear, wilful damage, negligence of the Client, damage caused by any third party, failure to follow ’s instructions (whether oral or in writing) or any instructions of the manufacturer or supplier of the Products or materials or alterations made or actions taken without ’s approval, or any other act or omission on the part of the Client, or damage caused as a result of working on the Products and in any event the Client should ensure that any work carried out on or with the Products is carried out by individuals or professionals with appropriate skills, qualifications and experience.
11.4 In no event shall be liable to the Client for any damages resulting from loss of data or use, any errors caused by any software, corruption of data, loss of profits or business, loss of goodwill or reputation, loss of opportunity, or any indirect or consequential loss or damage.
11.5 Subject as expressly provided in these Terms and except where the Products and Services are supplied to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
11.6 ’s liability to the Client in respect of breach of contract or breach of duty or fault or negligence or otherwise whatsoever arising out of or in connection with these Terms will be limited to taking reasonable steps to correct any such breach at ’s expense and Provided that the amount of its liability shall be limited in any event to a total fees paid by the Client to pursuant to these Terms to include interest and costs save that this provision shall have no application to any liability in respect of death or personal injury or any other liability for which exclusion or restriction is prohibited by law.
11.7 shall not be liable for the failure of the operation of the Website or any connected or linked website and shall not be liable (including any liability for negligence) for the acts or omissions of telecommunications service providers or for failures of, or faults in their networks and equipment or any other failure of fault connected therewith.
12. INDEMNITY
12.1 The Client will indemnify against any damages, losses, costs, claims or expenses, or any other sums incurred by it or against any loss suffers directly or indirectly, or any claim brought against it by any third party in relation to:
12.1.1 any loss, injury or damage wholly or partly caused by the Products or their use;
12.1.2 any loss, injury or damage in any way connected with the performance of these Terms;
12.1.3 any costs, claims or expenses of any third party involved in recovering outstanding monies due from the Client to
Provided that this clause will not require the Client to indemnify against any liability for the negligence of .
13. CONFIDENTIAL INFORMATION
13.1 and the Client shall not except as authorised or required by these Terms, or except as required by law, at any time (whether during or after the termination of these Terms) reveal to any person, firm or company, or use for its own benefit, any of the Confidential Information and it shall not use or attempt to use any Confidential Information in any manner which may injure or cause loss or may be calculated to injure or cause loss whether directly or indirectly to the other party Provided that the provisions of this clause 13 shall cease to apply to information which:
13.1.1 enters the public domain other than directly or indirectly by reason of the default of or the Client;
13.1.2 is lawfully in the possession of the recipient before the disclosure under these Terms took place;
13.1.3 is obtained from a third party who is free to disclose it;
13.1.4 is lawfully demanded or required to be disclosed by any governmental or judicial authority or by the Listing Rules of the London Stock Exchange (in force from time to time) provided that (if reasonable and lawful to do so) the receiving party informs the disclosing party in writing of the extent of the disclosure, prior to or as soon as reasonably practicable after such disclosure;
13.1.5 has been replicated independently by someone without access or knowledge of the information.
13.2 The parties shall use their reasonable endeavours to preserve the Confidential Information and to prevent the publication or disclosure of any Confidential Information.
13.3 The Client shall not except as authorised or required by these Terms or except as required by law, without the express written consent of and subject to such conditions as may in its discretion reasonably require to protect its Confidential Information, reveal to any person, firm or company or use for its own benefit, or use for any other purpose than that pursuant to these Terms any Confidential Information of including any created during the provision of the Product and Services.
13.4 shall be entitled to make and retain copies of any data, information, material or documentation provided to it by the Client in the course of providing the Products and Services as it deems necessary for the full and proper maintenance of its business records.
13.5 Unless the Client informs to the contrary in writing, may use non-confidential information in relation to the Products and Services for promotional purposes.
14. RESTRICTIVE COVENANTS
14.1 Without detracting from ’s duty of confidentiality, shall be entitled to act for any competitor or client of the Client whether or not there is a conflict of interest
14.2 The Client shall not during, nor at any time within 1 year after the termination of this Contract either on its own account or for any person, firm or company directly or indirectly solicit or entice away and/or receive business from and/or otherwise deal with any person, firm or company who was at any time during the 12 months immediately preceding the termination of this Contract an employee, sub-contractor, independent contractor or agent of in relation to the Services
15. TERMINATION
15.1 The Client may only terminate these Terms in accordance with provisions of clauses 2.6, 2.7, 2.8, 2.9 and 3 or in any of the following events:
15.1.1 if is in breach of its obligations under these Terms which in the case of a breach capable of remedy is not remedied by within 14 days of receipt by it of a notice specifying the breach and requiring its remedy
15.1.2 makes any voluntary arrangement with its creditors or becomes subject to an administration order or goes into liquidation or an encumbrancer takes possession or a receiver is appointed of any of the property or assets of , or if ceases to carry on business.
15.2 shall be entitled to terminate the whole or any part of these Terms at any time in the event that a third party supplier is unable or unwilling to provide or supply any Products or Bespoke Products or Services despite using reasonable endeavours to procure the provision or supply of them. In such cases of termination, shall refund to the Client any sums paid by the Client to in connection with the Products or Bespoke Products or Services to which the termination relates.
15.3 shall be entitled without prejudice to the other rights and remedies available to it, either to terminate the whole or any part of these Terms or to suspend any future service in any of the following events:
15.3.1 if any debt due and payable by the Client to is unpaid on the due date for payment;
15.3.2 if the Client is in breach of its obligations under these Terms which in the case of a breach capable of remedy is not remedied by the Client within 14 days of receipt by it of a notice specifying the breach and requiring its remedy:
15.3.3 if a meeting is convened of the Client’s creditors or a proposal is made for a voluntary arrangement or a proposal for any other composition scheme or arrangement with its creditors is made or it is unable to pay its debts under the terms of the Insolvency Act 1986 or a trustee, receiver, administrative receiver or a similar officer is appointed in respect of or any part of the Client’s business or assets or a petition is presented for the Client’s winding up or a meeting is convened to pass a resolution for winding up of the Client or the making of an administration order or where the Client ceases or threatens to cease to carry on its business or a petition is presented for the Client’s bankruptcy or the making of a bankruptcy order or if apprehends that such events are about to occur in relation to the Client
15.4 The termination of these Terms howsoever arising shall be without prejudice to the rights and duties of either the Client or accrued prior to termination.
15.5 Failure by to enforce or partially enforce any provision of these Terms will not be construed as a waiver of any of its rights under these Terms.
16. ADDITIONAL PRODUCTS AND SERVICES
For the avoidance of doubt, shall only be obliged to provide the Products and Services as detailed in these Terms. In the event that the Client wishes to provide any further products or services or carry out any other action in relation to them, such will be provided at ’s absolute discretion and will be subject to the payment by the Client of all costs, fees and expenses associated with them and upon terms agreed between the Client and .
17. GENERAL
17.1 All drawings, descriptive matter, specifications and advertising issued by and any descriptions or illustrations contained in ’s catalogues or brochures or other sales literature or displayed on the Website are issued or published for the sole purpose of giving an approximate idea of the products and services described in them and shall not be binding on . Details contained within them including (without limitation) specifications and prices may be subject to alteration or modification without notice. They will not form part of these Terms and, subject to clause 17.2, all Intellectual Property Rights in relation to such items shall remain vested in .
17.2 The Website and Products or part of them or any sales literature and material are or may be protected by Intellectual Property Rights and any such rights or confidential information relating to them remain with their legal owner solely and absolutely.
17.3 For the avoidance of doubt, save as to such rights as may be granted to the Client in relation to these Terms, no Intellectual Property Rights or other rights, interests or title of any nature whatsoever in connection with the Products or Services, shall pass to the Client.
17.4 The Client agrees that any suggestions, enhancement requests, recommendations or other feedback provided by the Client relating to the Products and Services and any additions, supplements or modifications made to them which may be developed for the Client its employees agents or subcontractors (whether under these Terms or otherwise and whether reimbursed or unreimbursed) and all Intellectual Property Rights therein shall be the absolute property of even where such development is in conjunction with the Client or its employees or agents unless otherwise agreed in writing by .
17.5 shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Products and Services any suggestions, enhancement requests, recommendations or other feedback provided by the Client relating to the Products and Services if for any reason the relevant provisions of clause 17.4 shall not apply.
17.6 The Client shall notify immediately in writing if any claim for infringement or alleged infringement of any Intellectual Property Rights is asserted against the Client based on its use of the Products and Services within the scope of these Terms and will comply with all ’s instructions in respect of the investigation of preparation and defence against or settlement of such claim and the Client:
17.6.1 shall not admit liability or compromise the claim without the prior consent of ;
17.6.2 acknowledge that has the exclusive right if it chooses to control and direct the investigation defence and settlement of such claim; and
17.6.3 shall co-operate with and provide all reasonable assistance to in connection with its obligations under this clause
17.7 The Client shall not, save to the extent expressly permitted by applicable law notwithstanding this limitation:
17.7.1 modify, copy, or de-compile any software provided as part of the Products or Services, or create derivative works based on the same; or
17.7.2 copy the manuals or documentation relating to that software, nor knowingly allow or permit anyone else to do so
Save that the Client shall be entitled to make such number of copies of that software for the purpose of back-up or disaster recovery as is reasonably necessary for the lawful use of the software in accordance with the Products and Services being provided.
17.8 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by shall be subject to correction without any liability on the part of .
17.9 may assign, licence or sub-contract all or any part of its rights or obligations under these Terms without the Client’s consent.
17.10 These Terms are personal to the Client who may not assign licence or sub-contract all or any of its rights or obligations under these Terms without ’s prior written consent.
17.11 The Client acknowledges that no data transmissions over the Internet can be guaranteed to be 100% secure or free from viruses or faults and cannot ensure or warrant the security of any information transmitted by it to the Client and the Client accepts such data transmission at its own risk.
17.12 No part of the Website is intended to constitute advice or guarantee any specific result and should not be relied upon by the Client when making decisions or taking action of any kind.
17.13 Any variation to these Terms shall have no effect unless expressly agreed in writing between the parties.
17.14 Neither party shall be deemed to be in breach of these Terms or otherwise be liable to the other party by reason of any delay in performance or non-performance of any of its obligations under these Terms where such delay or non-performance is caused by circumstances beyond its control including without limitation adverse weather conditions, flood, fire, war, national emergency, earthquake, or strike or lock-out (save in respect of strike or lock-out where such action has been induced by the party so incapacitated). If either party is affected it shall notify the other of the nature and extent of the circumstances in question with all reasonable speed and time for the performance of those obligations shall be extended accordingly Provided that if and when such period of incapacity exceeds 6 months these Terms shall automatically terminate unless the parties first agree otherwise in writing.
17.15 Notwithstanding the other provisions of these Terms and for the avoidance of doubt, the Client accepts and acknowledges that is not able to give any guarantee whatsoever in connection with any fix times with regard to the resolution of any software issues, particularly in circumstances where software manufacturers need to prepare and release new updates to resolve those issues, such preparation and release being outside the control of .
17.16 All notices under these Terms (save where otherwise provided and subject to clause 17.19) shall be in writing and in the case of notices sent by post shall be sent by registered post only and shall be deemed to have been served on:
17.16.1 the date of personal delivery if before 5pm or if after that time, the following day;
17.16.2 the second business day after mailing by registered post provided that such post is not returned undelivered;
17.16.3 the second business day after sending by confirmed facsimile; or
17.16.4 the second business day after the successful sending by email (as may be evidenced by, but not limited to, the transmission of an automatic electronic read receipt from, or a manual acknowledgement by, the recipient).
17.17 Notices to shall be addressed to the attention of the “Commercial Director”, with a copy to its Board to ’s registered office as set out above or to such address as notified by to the Client in accordance with this clause.
17.18 Notices to the Client shall be addressed to the Client’s registered office or principal place of business or last known place of address in accordance with this clause.
17.19 Notices in relation to breach, suspension or termination of these Terms and any document concerning legal proceedings or proposed legal proceedings may not be delivered by email.
17.20 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract and no person other than the parties to this Contract shall have any rights under it nor shall it be enforceable under that act by any person other than the parties to it.
17.21 and the Client agree to use their reasonable endeavours to resolve disputes arising from this Contract without the requirement for escalation and/or the involvement of the courts.
17.22 The parties undertake (in the case of , for itself as an Autodesk Reseller) that in relation to their dealings with customers they will not:
17.22.1 represent themselves as each other;
17.22.2 misrepresent their relationship with each other;
17.22.3 misrepresent the nature and/or effect of their contracts with customers;
17.22.4 assert that they have any authority to provide or promote any products or services on behalf of each other; or
17.22.5 in any other way pass off their business as being the others or represent that they are in any joint venture with each other.
17.23 reserves the right in its absolute discretion to change amend alter or otherwise deal with the Website or any of its content as it sees fit.
17.24 These Terms shall operate on the footing that if any provision of these Terms either in part or in whole is held by a court of competent jurisdiction or any other competent authority to be contrary to law or not to be valid or enforceable, the provision shall be modified by the court or such other competent authority and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law. This shall not affect any other provision of these Terms which shall remain in full force and effect.
Schedule 1
Model Form of Cancellation
To:
Limited
Suite 4F, First Floor
Gatwick House
Peeks Brook Lane
Horley
Surrey
RH6 9ST
Fax: [ ]
Email [ ]
I/We [*] hereby give notice that I/We [*] cancel my/our contract for sale of the following products[*]/for the supply of the following service[*],
Ordered on[*]/received on [*],
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
Date
[*] Delete as appropriate