These Terms and Conditions govern the provision of website hosting services provided by Spectrum Marcoms Limited trading as Spectrum IT, a company registered in England under number 08051080 whose registered office is at Southampton, United Kingdom (“the Host”) to clients wishing to use those website hosting services to host their website(s). Your agreement to comply with and be bound by these Terms and Conditions is deemed to occur on Your indicating Your acceptance and completing your Order for the Service.
Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
- “Account” means Your details that are required and held by Us to facilitate the provision of the Service to You including, but not limited to, identification and location details, username and password, and details of the Service provided to You;
- “Business Day” means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England;
- “Client Website” means the website that We shall host for You and refers to all parts of that website including, but not limited to, component files and related services such as e-mail;
- “Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
- “Contract” means the legally binding agreement formed between You and Us upon Your acceptance of these Terms and Conditions and Your completion of Your Order;
- “Fee” means the sum(s) payable by You to Us in order to receive the Service;
- “Hosting Hardware” means any and all computer and networking equipment used by Us in the provision of the Service including, but not limited to, servers and network infrastructure;
- “Hosting Package” means one of the hosting packages described on Our website at www.spectrum-it.co.uk and generally refers to the package selected by You during the sign-up process which shall refer to specific features including, but not limited to, tools, facilities, storage limits and duration of service;
- “Hosting Software” means any and all software used by Us in the provision of the Service including, but not limited, that which may be used by You;
- “Intellectual Property Rights” means copyright (and related rights), designs, patents, trade marks and any and all other intellectual property rights. This includes all such rights, whether they are registered or unregistered, and the rights to apply for renewals or extensions of those rights (where relevant);
- “Order” means Your order for the Service as completed by You via Our website at www.spectrum-it.co.uk specifying Your Account details, Your chosen Hosting Package and and additional services; and
- “Service” means, collectively, all components of Our website hosting service as provided to You in accordance with Your chosen Hosting Package, as fully described at www.spectrum-it.co.uk AND/OR in writing agreed.
1.2. Unless the context otherwise requires, each reference in these Terms and Conditions to:
- “writing”, and any similar expression, includes a reference to any electronic communication whether sent by e-mail, text message, fax or similar means;
- a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
- “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
- a Clause or paragraph is a reference to a Clause of these Terms and Conditions;
- “Party” or the “Parties” refer either singularly or jointly to Us and You;
- “We/Us/Our” is a reference to Spectrum IT, the Host;
- “You/Your” is a reference to you, the Client.
1.3. The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
1.4. Words imparting the singular number shall include the plural and vice versa.
1.5. References to any gender shall include the other gender.
1.6. References to persons shall include corporations.
2. The Service
2.1. Provision of the Service shall commence on the date specified in Your Order.
2.2. If the commencement of the Service is delayed by more than 5 Working Days from the date of Your Order, We shall contact You and shall give You the option of waiting for a further 50 Working Days or receiving a full refund of any and all Fees paid. In the event of further delay, the process set out in this sub-Clause 2.2 shall be repeated.
2.3. We are under no obligation to provide any services that do not form a part of Your chosen Hosting Package unless You upgrade Your Hosting Package, where available, or unless both Parties enter into a separate written agreement for the provision of additional services.
2.4. We may, at Our sole discretion, alter, improve or otherwise modify the Service provided that any such change will not alter the Service received by You to Your material disadvantage (which would include, but not be limited to, the removal of features from Hosting Packages). You will be notified no later than 15 Business Days in advance of any planned changes and shall receive full details of any action required on Your part. No alterations to the Service will affect the Fee payable by You.
2.5. Notwithstanding the provisions of sub-Clause 2.4 We may take any action necessary to diagnose and/or rectify faults in the Hosting Hardware or Hosting Software without any prior notice to You. If such diagnosis or rectification results in an interruption to the provision of the Service, You will be notified in accordance with the provisions of Clause 3.
3. Availability of Service
3.1. We will use reasonable endeavours to ensure that the Service is provided to You on a constant, uninterrupted basis throughout the duration of Your chosen Hosting Package.
3.2. Notwithstanding sub-Clause 3.1, We shall not be liable for Hosting Hardware downtime or interruptions to the Service where such downtime or interruptions last for no more than 5 Days.
3.3. Where the Service is unavailable for more than 24 Hours We will contact You and shall provide details of the interruption including, but not limited to the cause. If this is not possible due to an undiagnosed problem, We will, at a minimum, inform You that the problem is being investigated.
3.4. Where Service interruption due to Hosting Hardware failure cannot be remedied within 48 Hours We will transfer Your Client Website to alternative Hosting Hardware in order to restore the provision of the Service or, where this is not possible, notwithstanding sub-Clause 10.1.1, from the end of the initial 48 Hour period of Service interruption, keep a record of the number of whole days of Service interruption. Upon restoration of the Service, any partial days shall be rounded up and We will reimburse You for the interrupted period. Such reimbursement shall be calculated on a pro-rata basis and shall be paid to You within 60 Days. We acknowledge that this is an appropriate remedy in view of Your legitimate commercial interest in Service interruption due to failure of the Hosting Hardware being avoided or minimised.
3.5 Where the provision of the Service is interrupted through the fault of any third party, We shall bear no responsibility or liability.
4. Fees and Payment
4.1 Fees for Hosting Packages are detailed at www.spectrum-it.co.uk and the Fees for Your chosen Hosting Package are confirmed in Your Order.
4.2 You shall be required to pay all Fees due in advance of the Service for the duration of the Service specified in Your chosen Hosting Package.
4.3 For the first period of Service provision (as specified in Your chosen Hosting Package), payment of Fees shall take place on the date that You complete Your Order. For subsequent periods of Service provision, We will send You a renewal notice and invoice via e-mail not less than 5 Business Days prior to the expiry of the then current period. Payment must be made within 3 Business Days of receipt of the renewal notice and invoice in order for provision of the Service to continue without interruption.
4.4 We are free, at any time, to change the price of Our services (including, but not limited to, the Hosting Package chosen by You). You will not be subject to any additional charges during a period of Service Provision for which You have already paid resulting from a price increase, nor to any refunds resulting from a price decrease. Any changes in Fees due shall be reflected in subsequent renewals only. We reserve the right to continue charging old prices for renewals.
4.5 All Fees payable by You to Us must be paid in full, without set off or deduction. We reserve the right to suspend the Service or terminate the Contract if Fees are not paid on or before the due date.
4.6 You may change your Hosting Package at any time. If the You choose to do so, We shall refund the original Fee paid by You relative to the number of whole months out of the relevant period of Service provision that remain. Refunds shall be issued within 60 Days. You will be invoiced for a new complete period of Service provision as specified in Your newly chosen Hosting Package in accordance with the Fees for that Hosting Package.
4.7 All payments for Fees due under these Terms and Conditions must be made using a valid debit or credit card via Our own secure online payment system. AND/OR via Our chosen payment partner, PayPal. Payments made via PayPal are subject to PayPal’s own terms and conditions of service and We make no representations or warranties with respect to their services.
4.8 All Fees shown are exclusive of VAT, unless otherwise indicated.
5. Money Back Guarantee
5.1 From the date of Your payment under Clause 4 We offer a 30 Days money back guarantee during which You may cancel Your Order and receive a full refund if You are in any way unhappy with the Service.
5.2 If You choose to take advantage of the money back guarantee, You should email Us at [email protected] using the subject line: “Refund Request”, providing full details of Your Account and Order.
5.3 Please note that cancelling under this Clause 5 will result in the termination of the Service and thus the removal of Your Client Website from the Hosting Hardware. Any data You have not backed up Yourself will be lost.
6. Changes to these Terms and Conditions
6.1 We reserve the right to change these Terms and Conditions and any and all other terms and conditions and/or policies which may affect You in order to comply with changes in the law.
6.2 You will be informed of any changes made under this Clause 6 and shall be deemed to be bound by them 15 Days after receipt of the notice.
7. Your Obligations and Undertakings
7.1 You may not use the Service (including, but not limited to, the Hosting Hardware and/or the Hosting Software) for any unlawful or otherwise inappropriate purposes. This includes, but is not limited to:
7.1.1 Distribution of computer viruses, malware, spyware or any other form of code designed to cause harm or nuisance to hardware or software or to obtain data without consent;
7.1.2 Distribution of pirated material including, but not limited to, software, videos, music and written works; and
7.1.3 Distribution of obscene or illegal material including that which is pornographic, abusive, threatening, malicious, harassing, fraudulent, homophobic, defamatory or that which encourages criminal activities.
7.2 You may not use Your Client Website to link to any other websites or systems hosting any material described above in sub-Clause 7.1
7.3 You undertake to monitor and supervise any and all third party activity on Your Client Website (including, but not limited to, the submission of material by users and the use of communication systems such as forums). Any third party activity that may fall within the provisions of sub-Clause 7.1 must be stopped or removed, as appropriate.
7.4 You undertake to ensure that any and all personal information collected through Your Client Website is gathered, processed and held in accordance with the relevant provisions of the Data Protection Act 1998.
7.5 You undertake to ensure that any and all e-commerce conducted through Your Client Website complies with all relevant laws in force at the relevant time including, but not limited to, the Distance Selling Regulations 2000 and the EU E-Commerce Directive 2000.
7.6 You shall be responsible for all activity relating to Your Client Website.
7.7 You must use reasonable endeavours to ensure that We are furnished with any information reasonably required to provide the Service in a timely manner.
8. Intellectual Property Rights
8.1 You shall not acquire any rights in or over any Intellectual Property Rights subsisting in any materials and/or property owned by Us or by any third parties (where, for example, We are using materials under licence). Any materials owned by Us used by You in the normal course of the Service are used under a non-exclusive licence only to the extent required in order for Us to provide the Service to You.
8.2 We shall not acquire any rights in or over any Intellectual Property Rights subsisting in any materials and/or property owned by You or by any third parties (where, for example, You are using materials under licence) including, but not limited to, Your Client Website. Any such rights are used under a non-exclusive licence only to the extent required in order for Us to provide the Service to You.
8.3 You hereby agree to fully indemnify Us against all costs, expenses, liabilities, losses, damages, claims and judgments that We may incur or be subject to as a result of the infringement of any Intellectual Property Rights arising out of Your failure to obtain the necessary rights and permissions from third parties with respect to any materials used by You as hosted by Us under the Contract.
9. Your Use of the Hosting Software and Licence
9.1 Your use of any and all Hosting Software that We may from time to time provide including, but not limited to, the hosting control panel, cPanel, and CMS systems and any other applications installed from the control panel or provided by us, is under a non-exclusive licence and may be used only in accordance with these Terms and Conditions and only for the duration of the Service. You shall not gain any form of ownership rights over any Hosting Software or the Intellectual Property Rights therein.
9.2 Where We provide access to third party software (which, for the purposes of these Terms and Conditions, falls within the definition of “Hosting Software”) You agree to be bound by any licence agreements relating to such software upon Your first use of that software.
9.3 You may not under any circumstances:
9.3.1 attempt to copy any Hosting Software;
9.3.2 attempt to reverse-engineer, decompile, disassemble or in any other manner derive source code from any Hosting Software;
9.3.3 write or otherwise create any derivative software that is based in whole or in part on any Hosting Software; or
9.3.4 sell, lease, transfer, sub-licence, or in any other way treat any Hosting Software as Your property.
10. Limitation of Our Liability
10.1 Subject to the provisions of sub-Clause 3.4 and the remainder of this Clause 10, and to the fullest extent permitted by law, We shall not be liable to You or to any third party, whether in contract or tort (including negligence) for any loss or damage, direct or indirect, whether foreseeable or otherwise (including any indirect, consequential, special or exemplary damages) arising from:
10.1.1 interruptions or downtime to the Service;
10.1.2 any damage, loss or corruption of data (including, but not limited to, Your Client Website or any part thereof);
10.1.3 any incompatibility, whether of the Hosting Software, Hosting Hardware or Your Client Website with any of Your own equipment (or that of any third party);
10.1.4 any inability, on Your part, to use the Service (including, but not limited to, failure to follow reasonable instructions provided by Us);
10.1.5 the loss of confidentiality caused by the storage of information on the internet (this does not refer to the mutual confidentiality obligations of the Parties under Clause 14).
10.2 Nothing in these Terms and Conditions shall exclude Our liability for death or personal injury resulting from Our negligence or that of Our employees or agents.
10.3 Nothing in these Terms and Conditions shall exclude Our liability for fraud or fraudulent misrepresentation.
10.4 Nothing in these Terms and Conditions excludes or restricts Our liability for any loss resulting from Our failure to use reasonable skill and care, from Our gross negligence, or from Our wilful misconduct.
11. Warranty Disclaimer
Subject to the provisions of these Terms and Conditions, We give no further warranty, express or implied, in connection with the Service as to fitness for purpose, quality, non-infringement or merchantability.
12. Your Indemnity
You shall fully indemnify Us against all costs, expenses, liabilities, losses, damages and judgments that We may incur or be subject to as a result of any of the following:
12.1 Your misuse of the Service;
12.2 Your breach of these Terms and Conditions;
12.3 Your negligence or other act of default;
12.4 The activities of third parties conducted on or through Your Client Website.
13. Data Protection
13.1 All personal information that We may collect (including, but not limited to, Your name and address) will be collected, used and held in accordance with the provisions of the Data Protection Act 1998 and Your rights under that Act.
13.2 We may use Your personal information to:
13.2.1 Provide the Service to You;
13.2.2 Process payments made by You;
13.2.3 Inform You of products and services available from Us. You may request that We stop sending You this information at any time;
13.2.4 In certain circumstances, and with Your consent, We may pass Your personal information on to credit reference agencies. These agencies are also bound by the Data Protection Act 1998 and should use and hold Your personal information accordingly.
13.3 We will not pass Your personal information to any other third parties without first obtaining Your express permission to do so.
14.1 Except as provided by sub-Clause 14.2 or as authorised in writing by the other Party, each Party shall, at all times during the continuance of the Contract and for 3 years after its termination:
14.1.1 keep confidential all Confidential Information;
14.1.2 not disclose any Confidential Information to any other party;
14.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to these Terms and Conditions;
14.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
14.1.5 ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 14.1.1 to 14.1.4 above.
14.2 Either Party may:
14.2.1 disclose any Confidential Information to:
126.96.36.199 any sub-contractor or supplier of that Party;
188.8.131.52 any governmental or other authority or regulatory body; or
184.108.40.206 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
to such extent only as is necessary for the purposes contemplated by these Terms and Conditions (including, but not limited to, the provision of the Service by Us), or as required by law. In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause 220.127.116.11 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of this Clause 14, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
14.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of Your acceptance of these Terms and Conditions, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information which is not public knowledge.
14.3 The provisions of this Clause 14 shall continue in force in accordance with their terms, notwithstanding the termination of the Contract for any reason.
15. Force Majeure
15.1 Neither Party to the Contract will be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
15.2 In the event that either Party cannot perform their obligations thereunder as a result of force majeure for a continuous period of 30 Days, the other Party may at its discretion terminate the Contract by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all Service provision up to the date of termination or, where payment has been made in advance, a fair and reasonable reimbursement for Service provision not received.
16. Term and Termination
16.1 The initial period of Service provision shall commence on the date that Your Order is submitted and all Fees due under Clause 4 are paid. This period shall last for the duration specified in Your chosen Hosting Package, subject to any provisions in these Terms and Conditions to the contrary (including, but not limited to, this Clause 16).
16.2 Subsequent periods of Service provision shall last for the duration specified in Your chosen Hosting Package and shall follow on from a previous period, without interruption, subject to Your fulfilment of the payment obligations set out in Clause 4. All subsequent periods of Service provision shall remain subject to these Terms and Conditions unless expressly stated otherwise.
16.3 Either Party may immediately terminate the Contract by giving written notice to the other Party if:
16.3.1 any sum owing to that Party by the other Party under these Terms and Conditions is not paid within 15 Business Days of the due date for payment;
16.3.2 the other Party commits any other breach of any of these Terms and Conditions and, if the breach is capable of remedy, fails to remedy it within 15 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
16.3.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
16.3.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
16.3.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under these Terms and Conditions);
16.3.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
16.3.7 that other Party ceases, or threatens to cease, to carry on business; or
16.3.8 control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of the Contract. For the purposes of this Clause 16, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
16.4 For the purposes of sub-Clause 16.3.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
16.5 The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
17. Effects of Termination
Upon the termination of the Agreement for any reason:
17.1 We shall ensure the complete and secure removal of Your Client Website and all related material from the Hosting Hardware;
17.2 any sum owing by either Party to the other under these Terms and Conditions shall become immediately due and payable;
17.3 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Contract shall remain In full force and effect;
17.4 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of these Terms and Conditions which exist at or before the date of termination;
17.5 subject as provided in this Clause 17 and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and
17.6 each Party shall (except to the extent referred to in Clause 14) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
18. No Waiver
No failure or delay by either Party in exercising any of its rights under these Terms and Conditions shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of these Terms and Conditions shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time.
20. Assignment and Sub-Contracting
20.1 Subject to sub-Clause 20.2 The Contract shall be personal to the Parties. Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the written consent of the other Party, such consent not to be unreasonably withheld.
20.2 We shall be entitled to perform any of the obligations undertaken by Us through any other member of Our group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of these Terms and Conditions, be deemed to be Our act or omission.
21. Relationship of the Parties
Nothing in these Terms and Conditions shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in these Terms and Conditions.
22. Third Party Rights
22.1 No part of these Terms and Conditions is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply.
22.2 Subject to this Clause 22 the Contract shall continue and be binding on the transferee, successors and assigns of either Party as required.
23.1 All notices or communications shall be given to Us by email to [email protected] Such notice will be deemed received the day of sending if the email is received in full on a Business Day and on the next Business Day if the email is sent on a weekend or public holiday.
23.2 We may from time to time send You information about Our products and/or services. If You do not wish to receive such information, please e-mail us at [email protected]
In the event that one or more of the provisions of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of these Terms and Conditions. The remainder of these Terms and Conditions shall be valid and enforceable.
25. Law and Jurisdiction
25.1 The Agreement and these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
25.2 Any dispute, controversy, proceedings or claim between the Parties relating to the Agreement or these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
No part of this Website is intended to constitute a contractual offer capable of acceptance. Your order constitutes a contractual offer and our acceptance of that offer is deemed to occur upon our sending a dispatch email to you indicating that your order has been fulfilled and is on its way to you.
1. Definitions and Interpretation
In this Agreement the following terms shall have the following meanings:
“Account” means collectively the personal information, Payment Information and credentials used by Users to access Paid Content and / or any communications System on the Website;
“Content” means any text, graphics, images, audio, video, software, data compilations and any other form of information capable of being stored in a computer that appears on or forms part of this Website;
“Spectrum IT” means Spectrum Marcoms Limited Unit 62, Basepoint Enterprise Centre;
“Service” means collectively any online facilities, tools, services or information that Spectrum Marcoms Limited makes available through the Website either now or in the future;
“Services” means the services available to you through this Website, specifically Hosting services and products and remote support;
“Payment Information” means any details required for the purchase of Services from this Website. This includes, but is not limited to, credit / debit card numbers, bank account numbers and sort codes;
“Purchase Information” means collectively any orders, invoices, receipts or similar that may be in hard copy or electronic form;
“Premises” Means our place(s) of business located at Unit 62, Basepoint enterprise Centre, Andersons Road, Southampton SO14 5FF;
“System” means any online communications infrastructure that Spectrum Marcoms Limited makes available through the Website either now or in the future. This includes, but is not limited to, web-based email, message boards, live chat facilities and email links;
“User” / “Users” means any third party that accesses the Website and is not employed by Spectrum Marcoms Limited and acting in the course of their employment; and
“Website” means the website that you are currently using (www.spectrum-it.co.uk) and any sub-domains of this site (e.g. subdomain.spectrum-it.co.uk) unless expressly excluded by their own terms and conditions.
2. Business Customers
These Terms and Conditions apply to business customers only.
3. Intellectual Property
3.1 Subject to the exceptions in Clause 4 of these Terms and Conditions, all Content included on the Website, unless uploaded by Users, including, but not limited to, text, graphics, logos, icons, images, sound clips, video clips, data compilations, page layout, underlying code and software is the property of Spectrum Marcoms Limited, our affiliates or other relevant third parties. By continuing to use the Website you acknowledge that such material is protected by applicable United Kingdom and International intellectual property and other laws.
3.2 Subject to Clause 5 you may not reproduce, copy, distribute, store or in any other fashion re-use material from the Website unless otherwise indicated on the Website or unless given express written permission to do so by Spectrum Marcoms Limited.
4. Third Party Intellectual Property
4.1 Unless otherwise expressly indicated, all Intellectual Property rights including, but not limited to, Copyright and Trademarks, in product images and descriptions belong to the manufacturers or distributors of such products as may be applicable.
4.2 Subject to Clause 6 you may not reproduce, copy, distribute, store or in any other fashion re-use such material unless otherwise indicated on the Website or unless given express written permission to do so by the relevant manufacturer or supplier.
5. Fair Use of Intellectual Property
Material from the Website may be re-used without written permission where any of the exceptions detailed in Chapter III of the Copyright Designs and Patents Act 1988 apply.
6. Links to Other Websites
This Website may contain links to other sites. Unless expressly stated, these sites are not under the control of Spectrum Marcoms Limited or that of our affiliates. We assume no responsibility for the content of such websites and disclaim liability for any and all forms of loss or damage arising out of the use of them. The inclusion of a link to another site on this Website does not imply any endorsement of the sites themselves or of those in control of them.
7. Links to this Website
Those wishing to place a link to this Website on other sites may do so only to the home page of the site www.spectrum-it.co.uk without prior permission. Deep linking (i.e. links to specific pages within the site) requires the express permission of Spectrum Marcoms Limited. To find out more please contact us by email at [email protected]
8. Use of Communications Facilities
8.1 When using the enquiry form or any other System on the Website you should do so in accordance with the following rules:
8.1.1 You must not use obscene or vulgar language;
8.1.2 You must not submit Content that is unlawful or otherwise objectionable. This includes, but is not limited to, Content that is abusive, threatening, harassing, defamatory, ageist, sexist or racist;
8.1.3 You must not submit Content that is intended to promote or incite violence;
8.1.4 It is advised that submissions are made using the English language as we may be unable to respond to enquiries submitted in any other languages;
8.1.5 The means by which you identify yourself must not violate these Terms and Conditions or any applicable laws;
8.1.6 You must not impersonate other people, particularly employees and representatives of Spectrum Marcoms Limited or our affiliates; and
8.1.7 You must not use our System for unauthorised mass-communication such as “spam” or “junk mail”.
8.2 You acknowledge that Spectrum Marcoms Limited reserves the right to monitor any and all communications made to us or using our System.
8.3 You acknowledge that Spectrum Marcoms Limited may retain copies of any and all communications made to us or using our System.
8.4 You acknowledge that any information you send to us through our System or post on the forums/chant and support ticket software may be modified by us in any way and you hereby waive your moral right to be identified as the author of such information. Any restrictions you may wish to place upon our use of such information must be communicated to us in advance and we reserve the right to reject such terms and associated information.
9.1 In order to procure Services on this Website and to use the forums/chant and support ticket software facilities you are required to create an Account which will contain certain personal details and Payment Information which may vary based upon your use of the Website as we may not require payment information until you wish to make a purchase. By continuing to use this Website you represent and warrant that:
9.1.1 all information you submit is accurate and truthful;
9.1.2 you have permission to submit Payment Information where permission may be required; and
9.1.3 you will keep this information accurate and up-to-date.
Your creation of an Account is further affirmation of your representation and warranty.
9.2 It is recommended that you do not share your Account details, particularly your username and password. Spectrum Marcoms Limited accepts no liability for any losses or damages incurred as a result of your Account details being shared by you. If you use a shared computer, it is recommended that you do not save your Account details in your internet browser.
9.3 If you have reason to believe that your Account details have been obtained by another without consent, you should contact Spectrum Marcoms Limited immediately to suspend your Account and cancel any unauthorised orders or payments that may be pending. Please be aware that orders or payments can only be cancelled up until provision of Services has commenced. In the event that an unauthorised provision commences prior to your notifying us of the unauthorised nature of the order or payment, Spectrum Marcoms Limited accepts no liability or responsibility and you should make contact with the third party service provider detailed in the Purchase Information OR Spectrum Marcoms Limited will suspend provision of Services and the withdrawal of any scheduled payments pending investigation. Following investigation, it shall be determined whether or not to cancel the Services and make a full or partial refund of the payment.
9.4 When choosing your username you are required to adhere to the terms set out above in Clause 8. Any failure to do so could result in the suspension and/or deletion of your Account.
10. Termination and Cancellation
10.1 Either Spectrum Marcoms Limited or you may terminate your Account. If Spectrum Marcoms Limited terminates your Account, you will be notified by email and an explanation for the termination will be provided. Notwithstanding the foregoing, we reserve the right to terminate without giving reasons.
10.2 If Spectrum Marcoms Limited terminates your Account, any current or pending orders or payments on your Account will be cancelled and provision of Services will not commence.
10.3 Spectrum Marcoms Limited reserves the right to cancel orders or payments without stating reasons, for any reason prior to processing payment or commencing Services provision.
10.4 If orders or payments are cancelled for any reason prior to commencement of Services provision you will be refunded any monies paid in relation to those purchases.
10.5 If you terminate your Account any non-completed orders or payments will be cancelled and you will be refunded any monies paid in relation to those orders.
11.1 Any and all monies are due for payment on completion of the order or on the dates, or intervals specified in that order as may be appropriate, unless alternative arrangements are agreed between the Purchaser and Spectrum Marcoms Limited.
11.2 Interest will be charged on a daily basis, commercial interest at 7% above the base rate of the Bank of England obtaining at the time.
12. Services, Pricing and Availability
12.1 Whilst every effort has been made to ensure that all descriptions of Services available from Spectrum Marcoms Limited correspond to the actual Services, Spectrum Marcoms Limited is not responsible for any variations from these descriptions. This does not exclude our liability for mistakes due to negligence on our part and refers only to variations of the correct Services, not different Services altogether. Please refer to sub-Clause 13.4 for incorrect Services.
12.2 Where appropriate, you may be required to select the required package Services.
12.3 Spectrum Marcoms Limited does not represent or warrant that such Services will be available. Availability indications are provided on the Website however these may not take into account orders that have taken place during your visit to the web site.
12.4 All pricing information on the Website is correct at the time of going online. Spectrum Marcoms Limited reserves the right to change prices and alter or remove any special offers from time to time and as necessary. All pricing information is reviewed.
12.5 In the event that prices are changed during the period between an order being placed for Services and Spectrum Marcoms Limited processing that order and taking payment, [you will be contacted prior to your order being processed with details of the new price] OR [provision of Services shall commence as per your order and you will be charged the original price].
12.6 All prices on the Website do not include VAT.
13. Provision of Services
13.1 Provision of Services shall commence when full payment has been received or as otherwise detailed in the Terms & Conditions pertaining directly to those Services.
13.2 Spectrum Marcoms Limited shall use its best endeavours to provide the Services with reasonable skill and care.
13.3 Provision of all Services shall be subject to the Terms and Conditions pertaining directly to those Services.
13.4 In the event that Services are provided that are not in conformity with your order and thus incorrect, you should contact us within 10 days to inform us of the mistake. Spectrum Marcoms Limited will ensure that any necessary corrections to the Services provided are made within 7 working days.
13.5 Spectrum Marcoms Limited reserves the right to exercise discretion with respect to any alterations to Services under the provisions of this Clause 13. Factors which may be taken into account in the exercise of this discretion include, but are not limited to:
13.5.1 Any use or enjoyment that you may have already derived from the Services;
13.5.2 Any characteristics of the Services which may mean that cessation of provision is impossible without significant further work on the part and at the expense of Spectrum Marcoms Limited.
Such discretion to be exercised only within the confines of the law.
15.1 Spectrum Marcoms Limited makes no warranty or representation that the Website will meet your requirements, that it will be of satisfactory quality, that it will be fit for a particular purpose, that it will not infringe the rights of third parties, that it will be compatible with all systems, that it will be secure and that all information provided will be accurate. We make no guarantee of any specific results from the use of our Service or Services.
15.2 No part of this Website is intended to constitute advice and the Content of this Website should not be relied upon when making any decisions or taking any action of any kind.
15.3 No part of this Website is intended to constitute a contractual offer capable of acceptance.
15.4 Whilst Spectrum Marcoms Limited uses reasonable endeavours to ensure that the Website is secure and free of errors, viruses and other malware, all Users are advised to take responsibility for their own security, that of their personal details and their computers.
16. Changes to the Service and these Terms and Conditions
Spectrum Marcoms Limited reserves the right to change the Website, its Content or these Terms and Conditions at any time. You will be bound by any changes to the Terms and Conditions from the first time you use the Website following the changes. If Spectrum Marcoms Limited is required to make any changes to Terms and Conditions by law, these changes will apply automatically to any orders currently pending in addition to any orders placed by you in the future.
17. Availability of the Website
17.1 The Service is provided “as is” and on an “as available” basis. We give no warranty that the Service will be free of defects and / or faults. To the maximum extent permitted by law we provide no warranties (express or implied) of fitness for a particular purpose, accuracy of information, compatibility and satisfactory quality.
17.2 Spectrum Marcoms Limited accepts no liability for any disruption or non-availability of the Website resulting from external causes including, but not limited to, ISP equipment failure, host equipment failure, communications network failure, power failure, natural events, acts of war or legal restrictions and censorship.
18. Limitation of Liability
18.1 To the maximum extent permitted by law, Spectrum Marcoms Limited accepts no liability for any direct or indirect loss or damage, foreseeable or otherwise, including any indirect, consequential, special or exemplary damages arising from the use of the Website or any information contained therein. Users should be aware that they use the Website and its Content at their own risk.
18.2 Nothing in these Terms and Conditions excludes or restricts Spectrum Marcoms Limited’s liability for death or personal injury resulting from any negligence or fraud on the part of Spectrum Marcoms Limited.
18.3 Nothing in these Terms and Conditions excludes or restricts Spectrum Marcoms Limited’s liability for any direct or indirect loss or damage arising out of the incorrect provision of Services or out of reliance on incorrect information included on the Website.
18.4 Whilst every effort has been made to ensure that these Terms and Conditions adhere strictly with the relevant provisions of the Unfair Contract Terms Act 1977, in the event that any of these terms are found to be unlawful, invalid or otherwise unenforceable, that term is to be deemed severed from these Terms and Conditions and shall not affect the validity and enforceability of the remaining Terms and Conditions. This term shall apply only within jurisdictions where a particular term is illegal.
19. No Waiver
In the event that any party to these Terms and Conditions fails to exercise any right or remedy contained herein, this shall not be construed as a waiver of that right or remedy.
20. Previous Terms and Conditions
In the event of any conflict between these Terms and Conditions and any prior versions thereof, the provisions of these Terms and Conditions shall prevail unless it is expressly stated otherwise.
21. Third Party Rights
Nothing in these Terms and Conditions shall confer any rights upon any third party. The agreement created by these Terms and Conditions is between you and Spectrum Marcoms Limited.
22.1 All notices / communications shall be given to us either by post to our Premises (see address above) or by email to [email protected] Such notice will be deemed received 3 days after posting if sent by first class post, the day of sending if the email is received in full on a business day and on the next business day if the email is sent on a weekend or public holiday.
22.2 Spectrum Marcoms Limited may from time to time send you information about our products and/or services. If you do not wish to receive such information, please click on the ‘Unsubscribe’ link in the email. .
23. Law and Jurisdiction
These Terms and Conditions and the relationship between you and Spectrum Marcoms Limited shall be governed by and construed in accordance with the Law of England and Wales and Spectrum Marcoms Limited and you agree to submit to the exclusive jurisdiction of the Courts of England and Wales.
Full Terms & Conditions:
1. The competition is open to UK residents aged 18 years and over only, excluding employees of the Promoter or any other company linked to the competition in any way.
2. By entering the competition you are agreeing to these terms and conditions. Entrants may enter the competition by ‘retweeting’ and/or ‘liking and sharing’ as many times as they wish during the Promotion Period.
3. The competition is open between 09:00 on 05 April 2017 and 23.59 on 28 April 2017 (“Promotion Period”).
4.To enter: users must become a follower of the Spectrum IT Twitter account and retweet one of the Spring competition tweets, featuring the #ITSpringClean hashtag during the promotional period, or become a fan of the SpectrumMarcoms Facebook page, and ‘Like’ and ‘Share’ one of the promotional Facebook posts. Purchase is not necessary, however, Internet access and a Twitter or Facebook account will be required to enter.
5. Prizes: There is a total of one (1) prize to be won. HP Notebook
6. All valid entries will be entered into a draw. Winners will be selected by random draw during the morning of 02 May 2017.
7. The winner will be notified by direct message on Twitter or Facebook on the afternoon of 03 May 2017 and will have 48 hours to respond to the Promoter to accept their prize. If the winner does not respond within this time the Promoter shall select another winner at random from all remaining valid entries. The winner’s name will also be communicated on the Spectrum IT’s Twitter https://twitter.com/SpectrumIT_UK and Facebook page https://www.facebook.com/spectrummarcoms.
8. Spectrum IT will contact the winner to arrange collection of their prize.
9. All decisions are final and no correspondence will be entered into regarding the choice of winner.
10. The prize is non-transferable, non-refundable and cannot be exchanged for any cash alternatives in whole or in part. In the event for any reason the prize winner does not take an element of the prize at the time stipulated by the Promoter, then that element of the prize will be forfeited by the winner and neither cash nor any other form of compensation will be supplied in lieu of that element of the prize. However, the Promoter reserves the right to provide an alternative prize of equal or greater value in the event of unforeseen circumstances.
11. The Promoter accepts no responsibility for late, incomplete, incorrectly submitted, corrupted or misdirected entries.
12. If for any reason any aspect of this competition is not capable of running as planned, including by reason of infection by computer virus, network failure, bugs, tampering, unauthorised intervention, fraud, technical failures or any cause beyond the control of the Promoter which corrupts or affects the administration, security, fairness, integrity or proper conduct of this competition, the Promoter may in its sole discretion cancel, terminate, modify or suspend the competition, or invalidate any affected entries.
13. The winner shall, at the Promoter’s request, participate in all reasonable promotional activity (such as publicity and photography) surrounding the winning of the prize, for no further consideration, and they consent to the Promoter using their name and images in promotional material.
14. The Promoter and its associated agencies and companies will not be liable for any loss (including, without limitation, indirect, special or consequential loss or loss of profits), expense or damage which is suffered or sustained (whether or not arising from any person’s negligence) in connection with this promotion or accepting or using the prize, except for any liability which cannot be excluded by law (including personal injury, death and fraud) in which case that liability is limited to the minimum allowable by law.
15. No bulk, machine generated, consumer group or third party entries will be accepted. Entries will only be allowed in accordance with these terms and conditions. Any attempted interference with the running of this promotion will result in a void entry.
16. No responsibility will be accepted for entries lost, damaged or delayed. Proof of sending is not proof of receipt. No responsibility will be taken for telecommunication, device or website error.
17. If the winning entry or entrant is deemed not to comply with these Terms and Conditions, the entry or entrant will be discarded and the prize will be allocated to a reserve entrant.
18. The Promoter reserves the right to publish the name and county of residence of the winner. The winner may be required to participate in the Promoter’s marketing and promotional activities and by entering the prize draw consents to such participation.
20. These terms and conditions are governed by English law and subject to the exclusive jurisdiction of the English courts.
1. Application of Terms and Conditions
1.1 The Supplier shall supply and the Customer shall purchase the Goods and Services in accordance with the quotation and/or ordered on this website and/or service agreement which shall be subject to these Terms and Conditions; and
1.2 The Contract shall be to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
2. Definitions and Interpretation
2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day” means any day other than a Saturday, Sunday or bank holiday;
“Commencement Date” means the commencement date for the Contract as set out in the quotation / order / service agreement;
“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Contract” means the contract for the purchase and sale of the Goods and supply of the Services under these Terms and Conditions;
“Contract Price” means the price stated in the Contract payable for the Goods;
“Customer” means the person who accepts a quotation or offer of the Supplier for the sale of the Goods and supply of the Services, or whose order for the Goods and Services is accepted by the Supplier;
“Delivery Date” means the date on which the Goods are to be delivered as stipulated in the Customer’s order and accepted by the Supplier;
“Goods” means the goods (including any instalment of the goods or any parts for them) which the Supplier is to supply in accordance with these Terms and Conditions;
“Month” means a calendar month;
“Services” means the Services to be provided to the Customer as set out in the quotation / order / service agreement; and
“Supplier” means Spectrum Marcoms Limited, a company registered in England under 08051080 of Unit 62, Basepoint Enterprise Centre, Andersons Road, Southampton, SO14 5FF and includes all employees and agents of Spectrum Marcoms Limited.
2.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
“writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
“these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
a Schedule is a schedule to these Terms and Conditions; and
a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
2.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.4 Words imparting the singular number shall include the plural and vice versa.
2.5 References to any gender shall include the other gender.
3. Basis of Sale and Service
3.1 The Supplier’s employees or agents are not authorised to make any representations concerning the Goods or Services unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3.2 No variation to these Terms and Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Supplier.
3.3 Sales literature, price lists and other documents issued by the Supplier in relation to the Goods and Services are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. No contract for the sale of the Goods and Services shall be binding on the Supplier unless the Supplier has issued a quotation which is expressed to be an offer to sell the Goods and Services or has accepted an order placed by the Customer by whichever is the earlier of:
a) the Supplier’s written acceptance;
b) delivery of the Goods;
c) provision of the Services; or
d) the Supplier’s invoice.
3.4 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 the Supplier shall be subject to correction without any liability on the part of the Supplier.
4. The Goods
4.1 No order submitted by the Customer shall be deemed to be accepted by the Supplier unless and until confirmed in writing by the Supplier’s authorised representative.
4.2 The specification for the Goods shall be that set out in the Supplier’s sales documentation unless varied expressly in the Customer’s order (if such variation(s) is/are accepted by the Supplier). The Goods will only be supplied in the minimum units thereof stated in the Supplier’s price list or in multiples of those units. Orders received for quantities other than these will be adjusted accordingly
4.3 Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Supplier are intended as a guide only and shall not be binding on the Supplier.
4.4 The Supplier reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Customer’s specification, which do not materially affect their quality or performance.
4.5 No order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier on the terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of such cancellation.
5. The Services
5.1 With effect from the Commencement Date the Supplier shall, in consideration of the price being paid in accordance with Clauses 6 and 7 will provide the Services expressly identified in the quotation / order / service agreement.
5.2 The Supplier will use reasonable care and skill to perform the Services identified in the quotation / order / service agreement.
5.3 The Supplier shall use reasonable endeavours to complete its obligations under the Contract, but time will not be of the essence in the performance of such obligations.
6.1 The price of the Goods and Services shall be the price listed in the Supplier’s Price List / Quotation / Service agreement current at the date of acceptance of the Customer’s order or such other price as may be agreed in writing by the Supplier and the Customer.
6.2 Where the Supplier has quoted a price for the Goods other than in accordance with the Supplier’s published price list the price quoted shall be valid for 15 days only or such lesser time as the Supplier may specify.
6.3 The Supplier reserves the right, by giving written notice to the Customer at any time before delivery or provision, to increase the price of the Goods and/or Services to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods and services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
6.4 Except as otherwise stated under the terms of any quotation or in any price list of the Supplier, and unless otherwise agreed in writing between the Customer and the Supplier, all prices are exclusive of the Supplier’s charges for packaging and transport.
6.5 The price is exclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods and Services, which the Customer shall be additionally liable to pay to the Supplier.
7.1 Subject to any special terms agreed in writing between the Customer and the Supplier, the Supplier shall invoice the Customer for the price of the Goods and Services on or at any time after delivery of the Goods and/or the Provision of the Services (as applicable), unless, in the case of Goods, the Goods are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods, in which event the Supplier shall be entitled to invoice the Customer for the price at any time after the Supplier has notified the Customer that the Goods are ready for collection or (as the case may be) the Supplier has tendered delivery of the Goods.
7.2 The Customer shall pay the price of the Goods (less any discount or credit allowed by the Supplier, but without any other deduction, credit or set off) within 10 Business Days of the date of the Supplier’s invoice or otherwise in accordance with such credit terms as may have been agreed in writing between the Customer and the Supplier in respect of the Contract. Payment shall be made on the due date notwithstanding that delivery or provision may not have taken place and/or that the property in the Goods has not passed to the Customer. The time for the payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
7.3 All payments shall be made to the Supplier as indicated on the form of acceptance or invoice issued by the Supplier.
7.4 The Supplier is not obliged to accept orders from any customer or buyer who has not supplied the Supplier with references satisfactory to the Supplier. If at any time the Supplier is not satisfied as to the creditworthiness of the Customer it may give notice in writing to the Customer that no further credit will be allowed to the Customer in which event no further goods or services will be delivered or provided to the Customer other than against cash payment and notwithstanding sub-Clause 7.2 of these conditions, all amounts owing by the Customer to the Supplier shall be immediately payable in cash.
8. Delivery and Performance
8.1 Delivery of the Goods shall be made by the Supplier delivering the Goods to the place in the United Kingdom specified in the quotation / order / service agreement or, if no place of delivery is so specified, by the Customer collecting the Goods at the Supplier’s premises at any time after the Supplier has notified the Customer that the Goods are ready for collection.
8.2 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Supplier in writing. The Goods may be delivered by the Supplier in advance of the Delivery Date upon giving reasonable notice to the Customer.
8.3 If the Customer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Supplier shall be entitled upon giving written notice to the Customer to store or arrange for the storage of the Goods and then notwithstanding the provisions of sub-Clause 10.1 risk in the Goods shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall pay to the Supplier all costs and expenses including storage and insurance charges arising from such failure.
8.4 With effect from the Commencement Date the Supplier shall, in consideration of the price being paid in accordance with these Terms and Conditions and the quotation / order / service agreement provide the Services expressly identified in the quotation / order / service agreement.
9. Non-Delivery of Goods and Services
9.1 If the Supplier fails to deliver the Goods or provide the Services or any of them on the Delivery Date (or Commencement Date, as appropriate) other than for reasons outside the Supplier’s reasonable control or the Customer’s or its carrier’s fault:
a) if the Supplier delivers the Goods and/or provides the Services at any time thereafter the Supplier shall have no liability in respect of such late delivery; or
b) if the Customer gives written notice to the Supplier within 10 Business Days after the Delivery Date (or Commencement Date, as appropriate) and the Supplier fails to deliver the Goods and/or Services within 30 Business Days after receiving such notice the Customer may cancel the order and the Supplier’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods or services to those not delivered or provided over the price of the Goods or Services not delivered or provided.
10. Risk and Retention of Title
10.1 Risk of damage to or loss of the Goods shall pass to the Customer at:
a) in the case of Goods to be delivered at the Supplier’s premises, the time when the Supplier notifies the Customer that the Goods are available for collection;
b) in the case of Goods to be delivered otherwise than at the Supplier’s premises, the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Supplier has tendered delivery of the Goods; or
in the case of Goods being installed by the Supplier, the time that the Supplier notifies the Customer that the installation is complete.
10.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title to the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods.
10.3 Sub-Clause 10.2 notwithstanding, legal and beneficial title of the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods and any other goods supplied by the Supplier and the Customer has repaid all moneys owed to the Supplier, regardless of how such indebtedness arose.
10.4 Until payment has been made to the Supplier in accordance with these Conditions and title in the Goods has passed to the Customer, the Customer shall be in possession of the Goods as bailee for the Supplier and the Customer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Supplier and shall insure the Goods against all reasonable risks.
10.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Supplier, but if the Customer does so all money owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.
10.6 The Supplier reserves the right to repossess any Goods in which the Supplier retains title without notice. The Customer irrevocably authorises the Supplier to enter the Customer’s premises during normal business hours for the purpose of repossessing the Goods in which the Supplier retains title and inspecting the Goods to ensure compliance with the storage and identification requirements of sub-Clause
10.7 The Customer’s right to possession of the Goods in which the Supplier maintains legal and beneficial title shall terminate if:
a) the Customer commits or permits any material breach of his obligations under these Terms and Conditions;
the Customer enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986, the Insolvent Partnerships Order 1994 (as amended), or any other scheme or arrangement is made with his creditors;
b) the Customer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
c) the Customer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Customer, notice of intention to appoint an administrator is given by the Customer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer.
11.1 The Supplier may assign the Contract or any part of it to any person, firm or company without the prior consent of the Customer.
11.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.
12. Defective Goods
12.1 If on delivery any of the Goods are defective in any material respect and either the Customer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery as “condition and contents unknown” the Customer gives written notice of such defect to the Supplier within 10 Business Days of such delivery, the Supplier shall at its option:
a) replace the defective Goods within 30 Business Days of receiving the Customer’s notice; or
b) refund to the Customer the price for those Goods (or parts thereof, as appropriate) which are defective;
but the Supplier shall have no further liability to the Customer in respect thereof and the Customer may not reject the Goods if delivery is not refused or notice given by the Customer as set out above.
12.2 No Goods may be returned to the Supplier without the prior agreement in writing of the Supplier. Subject thereto any Goods returned which the Supplier is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Supplier’s sole discretion the Supplier shall refund or credit to the Customer the price of such defective Goods but the Supplier shall have no further liability to the Customer.
12.3 The Supplier shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Supplier’s instructions (whether given orally or in writing), misuse or alteration of the Goods without the Supplier’s prior approval, or any other act or omission on the part of the Customer, its employees or agents or any third party.
12.4 Goods, other than defective Goods returned under sub-Clauses 12.1 or 12.2, returned by the Customer and accepted by the Supplier may be credited to the Customer at the Supplier’s sole discretion and without any obligation on the part of the Supplier.
12.5 Subject as expressly provided in these Terms and Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.6 The Customer shall be responsible for ensuring that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Customer is in compliance with all applicable statutory requirements and that handling and sale of the Goods by the Customer is carried out in accordance with directions given by the Supplier or any competent governmental or regulatory authority and the Customer will indemnify the Supplier against any liability loss or damage which the Supplier might suffer as a result of the Customer’s failure to comply with this condition.
13. Customer’s Default
13.1 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
a) cancel the order or suspend any further deliveries or provision of Goods and Services to the Customer;
appropriate any payment made by the Customer to such of the Goods and/or Services (or the goods and/or services supplied under any other contract between the Customer and the Supplier) as the Supplier may think fit (notwithstanding any purported appropriation by the Customer); and
b) charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of 7% per annum above Lloyds Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
13.2 This condition applies if:
a) the Customer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract;
the Customer becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;
b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer;
c) the Customer ceases, or threatens to cease, to carry on business; or
d) the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
13.3 If sub-Clause 13.2 applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
14.1 The Supplier will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of the Contract (or these Terms and Conditions), be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Supplier’s servants or agents or otherwise) which arise out of or in connection with the supply of the Goods and Services.
14.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
14.3 The Customer shall indemnify the Supplier against all damages, costs, claims and expenses suffered by arising from loss or damage to any equipment (including that of third parties) caused by the Customer, its agents or employees.
14.4 Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.
14.5 The Supplier shall not be liable to the Customer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations if the delay or failure was due to any cause beyond the Supplier’s reasonable control.
4.6 Nothing in these Terms and Conditions excludes or limits the liability of the Supplier:
a) for death or personal injury caused by the Supplier’s negligence;
b) for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or
c) for fraud or fraudulent misrepresentation.
14.7 Subject to the remaining provisions of this Clause 14:
a) the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and
b) the Supplier shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
15.1 Each Party undertakes that, except as provided by sub-Clause 15.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Contract and for 3 Years after its termination:
a) keep confidential all Confidential Information;
b) not disclose any Confidential Information to any other person;
c) not use any Confidential Information for any purpose other than as contemplated by and subject to these Terms and Conditions and the Contract;
d) not make any copies of, record in any way or part with possession of any Confidential Information; and
e) ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-clauses 15.1.1 to 15.1.4 above.
15.2 Either Party may:
disclose any Confidential Information to:
18.104.22.168 any sub-contractor or supplier of that Party;
22.214.171.124 any governmental or other authority or regulatory body; or
126.96.36.199 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
to such extent only as is necessary for the purposes contemplated by these Terms and Conditions and the Contract, or as required by law, and in each case subject to that Party first informing the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in sub-Clause 188.8.131.52 above or any employee or officer of any such body) obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause 15, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Contract, or at any time after that date becomes, public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge.
15.3 The provisions of this Clause 15 shall continue in force in accordance with their terms, notwithstanding the termination of the Contract for any reason.
16.1 All notices under these Terms and Conditions and under the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
16.2 Notices shall be deemed to have been duly given:
a) when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or
b) when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
c) on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
d) on the tenth business day following mailing, if mailed by airmail, postage prepaid.
16.3 All notices under this Agreement shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
17. Force Majeure
Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.
20. Third Party Rights
A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
21. Law and Jurisdiction
21.1 These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.