Terms and Conditions – Infinity EPOS Distribution

These Terms and Conditions of Business shall be deemed to be a contract between Infinity Business Advancement Systems Limited and/or any subsidiary or associates (hereafter referred to as “the Supplier/Seller”) on the one part and the person, firm, company, entity, organisation and/or subsidiary or associate (hereafter called “the Customer/Buyer”) with whom Infinity Business Advancement Systems Ltd contracts for the sale of Products and/or supply of Services (hereafter called “Goods”) of the other part.

1. GENERAL

(a) In these conditions, ‘The Software’ shall mean all integral operational software and all other software provided in terms of this Order whether as an update or otherwise. ‘The Hardware’ shall mean all goods and other materials or support materials, other than ‘The Software’ supplied in terms of this Order and any update thereof. ‘The Equipment’ shall mean any combination of ‘The Hardware’ and ‘The Software’ together.

(b) The Supplier, by signed acceptance of this Order agrees:-

(i) to sell to the Customer the Hardware; and

(ii) to furnish the Customer in relation to the Software, with a non-exclusive, non-transferable licence to use the Software upon the terms herein contained;

(iii) to provide maintenance for the Equipment (‘The Maintenance’) specified under the terms and conditions of warranty supplied at the time.

(i) to accept delivery of the Equipment and the Maintenance;

(ii) to be bound by the terms and conditions specified herein.

2. APPLICATION OF TERMS

(a) These terms and conditions shall supersede any arrangements made or existing between the parties prior to, simultaneously with or subsequent to conclusion of this Agreement and shall constitute the entire understanding between the parties hereto. Except as otherwise provided herein, no addition, amendment or modification of these terms and conditions shall be effective, unless in writing and signed or accepted by a Director of the Supplier.

(b) These terms and conditions are applicable to every purchase or order made by the Buyer.

(c) The Supplier shall not be bound by the placing of any order by the Customer or the Customer’s signed acceptance overleaf unless or until the Supplier has also provided its signed acceptance hereof or delivery of the Equipment has been effected.

(d) The Buyer agrees that any order placed on the Seller including by Electronic Means mentioning or utilising the Buyer’s Identification is a valid and binding purchase order.

3. PRICES

(a) The price of the Equipment is based on the cost prevailing at the date hereof. The Supplier reserves the right to adjust the price of any good or service at any time without notification.

(b) Prices quoted do not include VAT or any similar taxes.

(c) The Seller reserves the right without notice to alter the price of goods after acceptance of an order due to an increase in its supplier’s price due to circumstances beyond the Seller’s control, but the Seller shall only increase its price by such level as is necessary to reflect such increases and also to correct errors and omissions.

(d) Where the Buyer requests items to be supplied with release certificates the Seller reserves the right to make an extra charge for providing such certificate.

(e) Where agreed call offs are not adhered to by the Buyer, the Seller reserves the right to amend the price structure in accordance with the quantities delivered.

(f) Special Order Products may require prepayment and may be subject to additional fees.

4. PAYMENT

(a) All credit accounts are payable within 30 days following the date of the invoice for any Hardware, Software, Equipment or Maintenance, unless explicitly stated otherwise on the supporting invoice. If no credit account is agreed, payment is due prior to dispatch.

(b) Any queries regarding invoices should be made known to the Seller in writing within 7 days of receipt thereof by the Buyer. If no such notification is given it will be assumed the invoice and goods/services thereunder have been accepted.

(c) The Seller reserves the right to charge a 2% surcharge on all debit/credit card transactions by way of processing or handling charge.

(d) If the Customer shall fail to take delivery of any Equipment under this order within twenty one (21) days of notification that it is ready for delivery, the Supplier shall have the right to present its invoice for payment at any time after the expiry of the said period and payment shall be due thereon as if delivery had been made.

(e) Should the Customer fail to make full payment of any invoice within 30 days of the due date, a 15% charge may be added to the account. An interest charge of 2% per month, compounded daily, may also be added to the account from the due date of the invoice thereafter until the full amount due has been paid.

(f) The Supplier shall then have the right by notice in writing forthwith to suspend all further manufacture, deliveries, installation, maintenance or warranty service until the default be made good or, at the Supplier’s absolute discretion, to determine any contract or agreement where goods remain to be delivered, without prejudice to any other remedies available. Further to this, required legal action shall be taken to recover any monies owed from the Customer to the Supplier. The Customer shall be responsible for any costs incurred relevant to this debt collection process in accordance with section 6 of the Late Payment of Commercials Debts (Interest) Act 1998.

(f) By accepting credit with the Seller, you agree that a Directors Guarantee is in place, and any amount owed that remains unpaid by a limited company will be the joint and several responsibility of the director(s) of that company.

(g) It is a pre-condition of any claim against the Seller that the Buyer shall have complied in full with the terms of payment and other obligations under these Conditions.

5. DELIVERY

(a) Unless otherwise stated, carriage and packing are charged extra. A standard carriage and packing charge at the current rate prevailing is applied and only applicable to mainland UK destinations, excluding (but not limited to) Northern Ireland, Scottish Highlands, Isle of Man, Isle of Wight, and Channel Islands. Any additional costs incurred at the time of shipment due to location shall be borne by the Customer.

(b) Overseas delivery costs and fluctuations in currency (Dollar rate) will be charged to the Customer in full.

(d) Unless otherwise agreed prior to acceptance of an order, delivery charges are for a single consignment to a single address.

(e) While the Seller will take all responsible steps to deliver the goods within the delivery period, the Seller accepts no responsibility for failure to do so. Despatch may be postponed because of conditions beyond the Seller’s reasonable control, and in no event shall the Seller be liable for any damages or penalty for delay in despatch or delivery.

(f) The Seller reserves the right to deliver in more than one shipment at its discretion.

(g) Notwithstanding the provision of Condition 6, the goods shall be at the Buyers’ risk from the time of despatch by the Seller. The Seller accepts no liability for loss or damage caused of any carrier or agent acting on his behalf.

(h) Notwithstanding the above, the Supplier accepts responsibility for damage or loss in transit if;-

(i) the same is notified to the Supplier and the carrier (if not delivered by the Supplier) within three days of receipt of the Equipment by the Customer and (where applicable)

(ii) the Equipment has been handled by the Customer in accordance with the Supplier’s or the carrier’s conditions of carriage or handling stipulations.

(i) Where the Supplier accepts responsibility under this sub-clause, it shall, at its sole option, replace or repair (as the case may be) any such Equipment, provided it is proved to the Supplier’s satisfaction to have been lost or damaged in transit.

(j) The Customer shall provide at its own expense and be responsible for all proper accommodation and facilities necessary for the proper functioning of the Equipment, including correct environmental conditions, as directed and recommended by the Supplier. Any loss caused by failure so to do shall be the responsibility of the Customer.

(k) Delivery of the Goods shall be made by the Seller to such place shall have been agreed between the Seller and the Buyer. The Seller shall be entitled to assume that any person who both reasonably appears and claims to have authority to accept delivery who signs a note in respect of the Goods on behalf of the Buyer does in fact have the authority. If Goods are returned for non-delivery, the Seller reserves the right to charge accordingly for the return carriage and the Buyer is liable if further costs are incurred for re-delivery.

6. TITLE TO EQUIPMENT AND PASSING OF RISK

(a) Delivery, installation and acceptance notwithstanding title to the hardware shall not pass to the Customer but shall be retained by the Supplier until full payment for the Hardware has been received by the Supplier.

(b) Notwithstanding the above, risk in the Equipment shall pass when the Equipment is delivered by the Supplier or its carriers to the Customer or its agent.

(i) hold the Equipment on a fiduciary basis as the Supplier’s bailee;

(ii) store the Equipment (at no cost to the Supplier) in satisfactory conditions so that it remains readily identifiable as the Supplier’s property;

(iii) not destroy, deface or obscure any identifying mark (including serial numbers) or packaging on or relating to the Equipment; and

(iv) keep the Equipment insured on the Supplier’s behalf for its full price against all risks to the reasonable satisfaction of the Supplier, and hold the proceeds of such insurance on trust for the Supplier and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

(d) The Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect it, or where the Customer’s right to possession has terminated, to remove it. All costs incurred by the Supplier in repossessing the Equipment shall be borne by the Customer.

7. SALE OR RETURN

(a) All Goods supplied on a “Sale or Return” (SOR) basis shall remain the property of the Supplier until full payment has been received for their purchase.

(b) The Supplier reserves the right to recall any SOR goods at any time without prior notice.

(d) If the buyer does not wish to purchase any Goods supplied by the Supplier on an SOR basis, the Buyer must return these Goods to the Supplier in the exact same condition and without damage to Goods, including internal and external packaging, within 14 days of the end of the SOR agreement date.

(e) If the Buyer does not notify the Seller of their intention to return the Goods within the SOR rental period, an invoice will be issued for the full amount stated and must be paid in full on its receipt in accordance to the company’s stated payment terms unless alternative arrangements have been agreed prior.

8. SOFTWARE

The Customer hereby accepts a non-exclusive, non-transferable licence to use any software provided by the Supplier but that only in conformity with these terms and conditions and in particular the Customer undertakes not to copy, reproduce, translate, adapt, vary, tamper with, or modify the Software or any part thereof nor to communicate the same to any third party without the Supplier’s prior written consent.

9.COPYRIGHTS, PATENTS, TRADEMARKS AND INTELLECTUAL PROPERTY RIGHTS

(a) The Customer acknowledges that any and all of the trademarks, trade names, copyrights, patents and other intellectual property rights used or embodied in or in connection with the Equipment, in which the Supplier or the respective manufacturer, developer or third party has an interest, is and shall remain the sole property of the Supplier or such manufacturer, developer or third party.

(b) The Supplier agrees to protect and save harmless and defend at its own expense the Customer from and against any and all claims of infringements of patents, trade-marks, industrial designs, copyrights or other property rights affecting equipment produced by the supplier PROVIDED THAT (i) the Customer shall not have done, permitted or suffered to be done anything which may have been or become an infringement of any rights in any patent, trade mark or other rights as herein before provided, and (ii) the Customer shall have exercised a reasonable standard of care in protecting the same; failing which the Customer shall indemnify the Supplier against all actions, proceedings, costs, claims and expenses incurred in respect thereof.

(c) The Customer undertakes that the Supplier shall be given prompt notice of any claim that is made against the Customer and the Supplier shall have the right to defend any such claim and make settlements thereof at its own discretion and the Customer shall give such assistance as the Supplier may reasonably require to settle or oppose any such claims.

(d) In the event that any such infringement occurs or may occur, the Supplier may at its sole option and expense:

(i) procure for the Customer the right to continue using the Equipment orinfringing part thereof; or

(ii) modify or amend the Equipment or infringing part thereof so that the same becomes non-infringing; or

(iii) replace the Equipment or infringing part thereof by other Equipment of similar capability; or

(iv) in relation to the Software, repay to the Customer the licence fee relating to the whole;
(v) or the infringing part thereof.

10. CONFIDENTIAL INFORMATION

(a) The Customer hereby acknowledges that all information, data, drawings, specifications, documentation, software listings, source or object codes and all other materials which the Supplier may have imparted and may from time to time impart to the Customer relating to the Software or support materials (including technical specifications and manuals) is proprietary and confidential. The Customer hereby agrees that it shall use the same solely in accordance with these terms and conditions and that it shall not at any time during or after the expiry or termination of these terms and conditions disclose the same, whether directly or indirectly, to any other party without the Supplier’s prior written consent. The Customer further agrees that it shall not itself or through any subsidiary, agent or third party modify, vary, enhance, copy, sell, lease, licence, sub-licence or otherwise deal with the Software or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or any supporting Software or other materials or have any software or other program written or developed for it based on the Software or other confidential information supplied to it by the Supplier.

(b) The Customer shall fully indemnify the Supplier from and against any loss or damage (including but not limited to loss of business opportunities and profits) suffered by the Supplier as a result of any breach of Conditions 8 or 10 hereof, whether such breach is by the Customer, its agents or employees, or attributable to the actions of the Customer, its agent or employees.

11. WARRANTY

(a) The Supplier warrants to the Customer that the Equipment marketed by the Supplier is believed to be free from defects of workmanship and materials in accordance with the Warranty section of this website.

(b) The Supplier shall not be liable at any time for damage or defects in the Equipment or parts caused by improper use, abuse, mismanagement of the Equipment or use outside the specific application of the Equipment.

12. SUPPORT

(a) The Supplier agrees to support the goods provided directly to the Customer according to the warranty terms above, and advice on software issues. Under no circumstances will the Supplier provide support to any third party company or individual that has not purchased the goods directly.

(b) The Supplier will endeavour to hold sufficient spare Equipment to satisfy the Customer’s maintenance needs, however is under no responsibility to do so for circumstances out of its control that would prevent them from doing so.

13. LIABILITY

(a) The Supplier shall not be liable to the Customer for any loss or damage whatsoever or howsoever caused arising in connection with this agreement, the Equipment or its use, or otherwise, other than by the negligent act or omission of the Supplier, its sub-contractors or its employees.

(b) Notwithstanding the above, the Supplier hereby expressly excludes liability for all indirect or consequential loss or damage including but not limited to loss or damage to data or to other equipment or property, (whether or not the same may be in the Supplier’s care, custody or control) or for loss of profit, business, revenue, goodwill, anticipated savings or any other special loss.

(c) In the event that any limitation or provision contained in this Agreement shall be held to be invalid for any reason or the Supplier becomes liable for loss or damage that would otherwise have been lawful to exclude, such liability shall be limited to £20,000.

(d) The Supplier does not exclude liability for death or personal injury to the extent that the same arises directly from the negligence of the Supplier, its sub-contractors, or employees.

14. TERMINATION

(a) Notwithstanding any other right of the Supplier to terminate this agreement, the Supplier shall be entitled by notice in writing to repudiate this agreement either wholly or in part and to receive back in good condition the Equipment delivered or despatched to the Customer (in the event that the Equipment has not been fully paid for) in the event of:

(i) breach by the Customer of any term, condition or provision of these conditions or required by law;

(ii) the Customer being apparently or absolutely insolvent, or any proceedings by or against the Customer in bankruptcy or insolvency or the appointment of an Administrator, Receiver, Liquidator, Trustee or other assignee for the benefit of creditors;

(iii) the Customer disputing that any or all of the trademarks, trade names, copyrights or other intellectual property rights used or embodied in or in connection with the Equipment in which the Supplier has an interest, is the property of the Supplier.

(b) Where credit terms are agreed, the Company may at its absolute discretion cancel this contract at any time after acceptance if in its opinion the customer’s credit rating is unsatisfactory or if the customer is in excess of the Company’s published or agreed credit terms the Company shall be under no liability whatsoever arising out of any such cancellation.

15. WAIVER

Failure or neglect by the Supplier to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of the Supplier’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice the Supplier’s rights to take subsequent action.

16. ASSIGNMENT

The rights and obligations hereunder shall not be assigned by the Customer without the prior written consent of the Supplier.

17. FORCE MAJEURE

The Supplier shall not be under any liability to the Customer or to any other party in any way whatsoever for destruction, damage, delay or any other matters of the nature whatsoever arising out of war, rebellion, civil commotion, strikes, lock-outs and industrial disputes; fire, explosion, earthquake, act of God, flood, drought or bad weather; the unavailability of deliveries, supplies, disks or other media or the requisitioning or other act or order by any government department, council or other constituted body.

18. CANCELLATION AND AMENDMENT OF ORDERS

(a) No cancellation or amendment of any Order will be accepted unless received by the Seller in writing before goods are dispatched and no customisation has been performed.

(b) Any cancellation or amendment of any Order shall be subject to acceptance by the Seller at the Seller’s sole discretion, and also subject to a reasonable administration charge. The Buyer hereby agrees to indemnify the Seller against all losses, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling.

(c) Notwithstanding the provision of 9.1 above no cancellation or amendment of an Order will be accepted where goods have been ordered or purchased by the Seller to meet the Buyer’s requirements or where a special price has been negotiated with the Buyer.

19. RETURN OF GOODS

(a) Save under condition 11 (ii);

(i) No goods may be returned to the Seller without the previous consent in writing of the Seller. Software may not be returned.

(ii) The Supplier is in no way obliged to accept the return of installed products on site due to current Business to Business regulations of England and Wales. A charge of 15% of invoice value will be levied on goods returned, with a minimum charge of £25. All hardware that has been removed from its original packaging and hence cannot be resold as new will only be refundable to a maximum of 50% of the total purchase price.

(iii) All costs of returning goods shall be borne by the Buyer.

(iv) All returned goods must be received by the Seller within thirty days of the original delivery date.

(v) All returned goods must be accompanied by the original packing note, together with the full reason for returning the goods.

(vi) All returned goods must be returned to the address supplied by the Seller.

(vii) If a partial return is accepted the cost of returning returns deemed unacceptable by the Seller will be deducted from any refund/credit due.

(viii) This condition shall not affect the statutory rights of the Buyer as defined by English Law neither shall it affect any manufacturer’s guarantee passed on by the Seller to the Buyer.

20. VARIATION OF TERMS

The conditions are subject to any express conditions written by the Seller on the face hereof.

21. ACCURACY

While the company believes the information in its publications to be accurate and reliable, it accepts no liability in negligence or otherwise whatsoever in respect of any inaccuracies or omissions in any such information or of any consequences whatsoever arising from or in connection with the use of such information.

22. GOVERNING LAW

The parties hereby agree that these conditions shall be governed by the Law of England and Wales, and the parties propagate the non-exclusive jurisdiction of the Courts of the United Kingdom.