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Purchases; Other Terms and Conditions
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TERMS AND CONDITIONS FOR THE SUPPLY OF EQUIPMENT AND SERVICES
The Customer’s attention is particularly drawn to the provisions of clause 15 .
1.1 Definitions. In these Conditions, the following definitions apply:
“Business Day” a day other than a Saturday, Sunday or public holiday in Republic of Ireland when banks in Dublin are open for business. “Charges” has the meaning set out in clause 12.2 .
“Conditions” these terms and conditions as amended from time to time in accordance with clause 18.7 .
“Contract” the contract between the Supplier and the Customer for the supply of Equipment and/or Services in accordance with these Conditions.
“CTO Equipment” any Equipment which is customised to the Purchase Order. “Customer” the person, firm or company who purchases Equipment and/or Services
from the Supplier.
“Delivery Location” has the meaning set out in clause 4.3 .
“Device” any device or equipment (including any iOS Device), indicated in the Purchase Order by serial number, in relation to which the Customer requests Repair Services from the Supplier.
“Diagnostic Fee” the Charges for the Supplier’s initial computer diagnosis for the Repair Services and any additional Charges arising from additional faults discovered during repair.
“Equipment” the equipment (or any part of it) set out in the Purchase Order. “Force Majeure Event” has the meaning set out in clause 17.1 .
“Installed Software” any Software installed on any Equipment at the time of its delivery.
“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“iOS Device” all variants of the following Devices: iPads (excluding Verizon iPads), iPods, Airport Expresses, Airport Extremes, Time Capsules, Apple TVs and any Apple peripherals (including adaptors, cables, headphones and earphones).
“Line of Credit” has the meaning set out in clause 12.6 .
“Parts” any component used in the construction of a Device, except in the case of
iOS Devices, where “Parts” means whole units. “Price” has the meaning set out in clause 12.1 .
“Purchase Order” the Customer’s written instruction for the supply of Equipment and/or Services, incorporating these Conditions.
“Repair Charges” the Charges for the Repair Services.
“Repair Services” any Services relating to the servicing or repair of Devices whether pursuant to Warranty or otherwise, including the Supplier’s initial computer diagnosis for the same, provided pursuant to clause 11.7 .
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“Services” the services set out in the Purchase Order (including any Repair Services).
“Software” any and all computer programs and computer software (of whatever type and in whatever form or media) installed on or supplied with any Equipment at the time of its delivery and either necessary for its operation in the manner contemplated by the Customer or otherwise referred to in the Purchase Order.
“Supplier” MacXchange Ltd t/a Compu b, registered in The Republic of Ireland with company number 07034450.
“Warranty” any of the following service care plans: AppleCare Protection Plan, Apple Limited Warranty, or an extended service contract entered into by the Customer and the Supplier.
“Warranty Charge” the charges for any Repair Services provided pursuant to Warranty for any Device, set out in the terms of or by reference to that Warranty.
1.2 Construction. In these Conditions, the following rules apply :
- 1.2.1 a person includes a natural person, corporate or unincorporated body(whether or not having separate legal personality);
- 1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
- 1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
- 1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
- 1.2.5 a reference to writing or written includes faxes and e-mails.
2 Basis of Contract
- 2.1 The Purchase Order constitutes an offer by the Customer to purchase Equipment and/or Services in accordance with these Conditions. Accordingly, any acceptance of the Purchase Order by the Supplier shall establish a binding Contract for the sale and purchase of that Equipment and/or Services on these Conditions.
- 2.2 The Purchase Order shall be deemed to be accepted when the Supplier issues acceptance of the Purchase Order by email, or the Supplier executes, commences work or commences delivery pursuant to the Purchase Order.
- 2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
- 2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- 2.5 Subject to clause 11.7 , any quotation or confirmation of specification given by the Supplier shall not constitute an offer, and is only valid for a period of 7 (seven) days from its date of issue. The Supplier may withdraw it at any time by notice to the Customer.
- 2.6 All of these Conditions shall apply to the supply of both Equipment and Services except where application to one or the other is specified.
- 2.7 Subject to clause 2.8 , no Purchase Order which has been accepted by the Supplier may be cancelled by the Customer.
2.8 The Customer may, with the prior written consent of the Supplier, cancel a Purchase Order to the extent that it relates to Equipment other than CTO Equipment and/or Software other than Installed Software, in each case provided that the Customer indemnifies 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 cancellation.
- 3 Equipment (Quantity and Description)
- 3.1 The quantity and description of the Equipment shall be as set out in the Supplier’s email acceptance of the Purchase Order or (if there is no such email) quotation or confirmation of specification.
- 3.2 All samples, drawings, descriptive matter, specifications and advertising issued by or on behalf of the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures (or those of its suppliers) are issued or published for illustrative purposes only and they do not form part of the Contract.
- 3.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by or on behalf of the Supplier shall be subject to correction without any liability on the part of the Supplier.
- 3.4 The Supplier reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment which are required to conform with any applicable legislation or make any changes in the specification of the Equipment or substitute for the Equipment such other equipment which the Supplier, in its reasonable opinion, considers not to materially affect their quality or performance. Any Equipment so changed or substituted and offered to the Customer in fulfilment of its original Purchase Order shall be subject to the Customer’s acceptance (which shall be deemed to have been given unless the Customer cancels its original Purchase Order within 7 (seven) days of the Supplier’s offer of the changed or substituted Equipment). The Supplier shall have no liability to the Customer in respect of its cancellation of its original Purchase Order or acceptance of the changed or substituted Equipment pursuant to the foregoing.
- 3.5 Where the Supplier is not the manufacturer of the Equipment, the Supplier shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to the Supplier.
- 3.6 The Supplier’s employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Equipment.
- 4 Delivery of Equipment and Acceptance
- 4.1 The Supplier shall use its reasonable endeavours to deliver the Equipment on the date or dates specified in the Supplier’s email acceptance of the Purchase Order, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the Purchase Order. Time is not of the essence as to the delivery of the Equipment and the Supplier is not in any circumstances liable for any delay in delivery, however caused.
- 4.2 The Equipment may be delivered by the Supplier in advance of the quoted delivery date on giving reasonable notice to the Customer.
- 4.3 Delivery shall be made during normal business hours (excluding bank or public holidays) to the location set out in the Purchase Order or such other location as the parties may agree (“Delivery Location”).
- 4.4 The Customer shall be responsible (at the Customer’s cost) for preparing the Delivery Location for the delivery of the Equipment and for the provision of all necessary access and facilities reasonably required to deliver and (if applicable) install the Equipment. If the Supplier is prevented from carrying out delivery or (if applicable) installation on the specified date because no such preparation has been carried out, the Supplier may levy additional charges to recover its loss arising from this event.
- 4.5 Delivery of the Equipment shall be completed on the Equipment’s arrival at the Delivery Location.
- 4.6 The Customer shall, upon delivery of the Equipment at the Delivery Location, visually inspect the Equipment and its packaging for any damage, shortage or loss in transit, and promptly notify the Supplier of any such damage, shortage or loss in transit. The Customer shall be deemed to have accepted the Equipment when the Customer has had three days to inspect it after delivery and has not exercised in writing its right of rejection in accordance with clauses 4.7 or 8 .
- 4.7 The Supplier shall be responsible for any damage, shortage or loss in transit, provided that the Customer notifies it to the Supplier (or its carrier, if applicable) within three days of delivery or the proposed delivery date of the Equipment, and that the Equipment has been handled in accordance with the Supplier’s stipulations, provided always that the Supplier shall have no liability for any damage to the Equipment to the extent that such damage is caused (accidentally or otherwise) by the Customer (or its customer, agent, or its or their employees). Without prejudice to clause 4.13 , any remedy under this clause 4.7 shall be limited, at the option of the Supplier, to the replacement or repair of any Equipment which is proven to the Supplier’s satisfaction to have been lost or damaged in transit. The Customer acknowledges that the quantity of any consignment of Equipment as recorded by the Supplier on dispatch from its place of business shall be conclusive evidence of the quantity received by the Customer upon delivery at the Delivery Location, unless the Customer can prove otherwise to the Supplier’s reasonable satisfaction within three days of delivery.
- 4.8 The Supplier may deliver the Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
- 4.9 If the Supplier fails to deliver the Equipment, its liability shall be limited to the replacement (within a reasonable period) of any Equipment which the Supplier failed to deliver or a refund of the price of the Equipment paid by the Customer to the Supplier, provided always that the Supplier shall have no liability for any failure to deliver the Equipment to the extent that such failure is caused by a Force Majeure Event, the Customer’s failure to provide the Supplier with adequate delivery instructions or otherwise comply with clause 4.4 .
- 4.10 If the Customer fails to accept or take delivery of the Equipment within three days of the Supplier notifying the Customer that the Equipment is ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Equipment:
- 4.10.1 delivery of the Equipment shall be deemed to have been completed at 9:00 am on the first Business Day following the day on which the Supplier notified the Customer that the Equipment was ready; and
- 4.10.2 the Supplier shall store the Equipment until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
- 4.11 If three days after the Supplier notified the Customer that the Equipment was ready for delivery the Customer has not taken or accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Equipment and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Equipment or charge the Customer for any shortfall below the price of the Equipment.
- 4.12 The Supplier shall provide proof of delivery of the Equipment to the Customer provided that the Customer requests the same in writing to the Supplier within 10 Business Days of delivery. If any such request is received by the Supplier after this time, the Supplier reserves the right to make a reasonable charge to the Customer for providing such proof of delivery, which charge the Customer agrees to pay.
4.13 Without prejudice to its rights under clauses 4.7 and 8 :
- 4.13.1 subject to clauses 4.13.2 to 4.13.5 , the Customer shall be entitled to return any unwanted Equipment to the Supplier;
- 4.13.2 the Customer shall, at its risk and cost, return the unwanted Equipment together with all original packaging to the Supplier’s place of business within 30 days of delivery;
- 4.13.3 where the unwanted Equipment is returned to the Supplier unopened and in the same condition as that in which it was delivered to the Customer, the Supplier shall refund the following sums to the Customer:184.108.40.206 where the unwanted Equipment is returned to the Supplier within 14 days of delivery, the Price; and220.127.116.11 where the unwanted Equipment is returned to the Supplier between 15 and 30 days after delivery, the Price less a restocking fee of 10% of the Price;
- 4.13.4 where the unwanted Equipment is returned to the Supplier within 14 days of delivery, opened but together with all original and undamaged packaging and (except for being opened) in the same condition as that in which it was delivered, the Supplier shall refund the Price to the Customer less a restocking fee of 10% of the Price; and
- 4.13.5 the Customer’s right at clause 4.13.1 shall not apply in respect of any CTO Equipment or Installed Software.
5 Title and Risk
- 5.1 The risk in the Equipment shall pass to the Customer on completion of delivery.
- 5.2 Title to the Equipment shall not pass to the Customer until the earlier of:
- 5.2.1 the Supplier receives payment in full (in cash or cleared funds) for the Equipment and any other equipment that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Equipment shall pass at the time of payment of all such sums; and
- 5.2.2 the Customer resells the Equipment, in which case title to the Equipment shall pass to the Customer at the time specified in clause 5.4 .
- 5.3 Until title to the Equipment has passed to the Customer, the Customer shall:
- 5.3.1 store the Equipment separately from all other Equipment held by the Customer so that they remain readily identifiable as the Supplier’s property;
- 5.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment;
- 5.3.3 maintain the Equipment in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
- 5.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clauses 16.1.2 to 16.1.13 ; and
- 5.3.5 give the Supplier such information relating to the Equipment as the Supplier may require from time to time.
- 5.4 Subject to clause 5.5 , the Customer may resell or use the Equipment in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Equipment. However, if the Customer resells the Equipment before that time:
5.4.1 it does so as principal and not as the Supplier’s agent; and
5.4.2 title to the Equipment shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
5.5 If before title to the Equipment passes to the Customer the Customer becomes subject to any of the events listed in clauses 16.1.2 to 16.1.13 , then, without limiting any other right or remedy the Supplier may have:
- 5.5.1 the Customer’s right to resell the Equipment or use it in the ordinary course of its business ceases immediately; and
- 5.5.2 the Supplier may at any time:
- (a) require the Customer to deliver up all Equipment in its possession; and
- (b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Equipment is stored in order to recover it.
- 6 Software Licence
- 6.1 If the Supplier refers to a software licence in its email acceptance of the Purchase Order, the price of the Equipment includes the licence fee for the Customer’s right to use the Software.
- 6.2 If the Customer is provided with any operating system software licence in respect of the Software, the Customer shall sign and return it to the Supplier within three days of installation of the Software, unless the licence has been supplied on a “shrink-wrap” or “click-wrap” basis.
- 6.3 If no software licence has been provided to the Customer, the Customer hereby accepts a non-exclusive, non-transferable licence to use the Software on the following conditions:
- 6.3.1 the Customer shall not copy (except to the extent permissible under applicable law which is not capable of exclusion by Contract or for normal operation of the Equipment), reproduce, translate, adapt, vary or modify the Software, nor communicate it to any third party, without the Supplier’s prior written consent;
- 6.3.2 the Customer shall not use the Software on any equipment other than the Equipment, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Software on the medium on which it resides;
- 6.3.3 such licence shall be terminable by either party on 28 days’ written notice, provided that the Supplier terminates only if the continued use or possession of the Software by the Customer infringes the developer’s or a third party’s rights, or the Supplier is compelled to do so by law, or if the Customer has failed to comply with any term of the Contract; and
- 6.3.4 on or before the expiry of this licence, the Customer shall return to the Supplier all copies of the Software in its possession.
- 7 Export Terms
- 7.1 Where the Equipment is supplied for export from the United Kingdom, the provisions of this clause 7 shall (subject to any contrary terms agreed in writing between the Customer and the Supplier) override any other provision of these Conditions.
- 7.2 The Customer shall be responsible for complying with any legislation governing:
- 7.2.1 the importation of the Equipment into the country of destination; and
- 7.2.2 the export and re-export of the Equipment,
and shall be responsible for the payment of any duties on it.
- 7.3 Unless otherwise agreed in writing between the Customer and the Supplier, the Equipment shall be delivered free on board the air or sea port of shipment and the Supplier shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
7.4 The Supplier shall be responsible for arranging for the testing and inspection of the Equipment at the Supplier’s premises before shipment.
- 8 Quality of Equipment
- 8.1 The Supplier warrants that on delivery, and for a period of three months from the date of delivery (“Warranty Period”), the Equipment shall:
- 8.1.1 conform in all material respects with its description;
- 8.1.2 be free from material defects in design, material and workmanship; and
- 8.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
- 8.2 Subject to clause 8.3 , if:
- 8.2.1 the Customer gives notice in writing during the Warranty Period that some or all of the Equipment does not comply with the warranty set out in clause 8.1 ;
- 8.2.2 the Supplier is given a reasonable opportunity of examining or testing such Equipment (whether at its current location or at the Supplier’s place of business once the Equipment has been returned there pursuant to clause 8.2.3 ); and
- 8.2.3 the Customer (if asked to do so by the Supplier) returns such Equipment to the Supplier’s place of business at the Customer’s risk and cost,
the Supplier shall (if the Customer returns such Equipment pursuant to clause 8.2.3 within 30 days of delivery) replace the defective Equipment, or (if the Customer returns such Equipment pursuant to clause 8.2.3 after 30 days of delivery), at its (or Apple’s) option, repair or replace the defective Equipment.
- 8.3 The Supplier shall not be liable for the Equipment’s failure to comply with the warranty in clause 8.1 if:
- 8.3.1 the Customer (or its customer) makes any further use of such Equipment after giving a notice in accordance with clause 8.2.1;
- 8.3.2 the defect arises because the Customer (or its customer) failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice;
- 8.3.3 the Customer (or its customer) alters or repairs such Equipment without the written consent of the Supplier or the defect arises as a result of accidental damage by the Customer (or its customer);
- 8.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
- 8.3.5 the Equipment differs from its description as a result of changes made to ensure it complies with applicable statutory or regulatory standards.
- 8.4 Except as provided in this clause 8 , the Supplier shall have no liability to the Customer in respect of the Equipment’s failure to comply with the warranty set out in clause 8.1 .
- 8.5 The terms of these Conditions shall apply to any repaired or replacement Equipment supplied by the Supplier under clause 8.2 and to any Parts supplied in the performance of the Repair Services.
- 8.1 The Supplier warrants that on delivery, and for a period of three months from the date of delivery (“Warranty Period”), the Equipment shall:
- 9 Supply of Services
9.1 The Supplier shall provide the Services to the Customer in accordance with the Purchase Order in all material respects.
- 9.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Purchase Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
- 9.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
- 9.4 The Supplier warrants to the Customer that the Services (including, for the avoidance of doubt but subject to clause 11.3, Repair Services) will be provided using reasonable care and skill.
- 9.5 The provisions of clause 11 shall apply to Repair Services only.
- 10 Customer’s Obligations
- 10.1 The Customer shall:
- 10.1.1 ensure that the terms of the Purchase Order are complete and accurate;
- 10.1.2 co-operate with the Supplier in all matters relating to the Services;
- 10.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
- 10.1.4 provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
- 10.1.5 prepare the Customer’s premises for the supply of the Services;
- 10.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
- 10.1.7 keep and maintain all materials, equipment, documents and other property of the Supplier (“Supplier Materials”) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation.
- 10.2 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
- 10.2.1 the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
- 10.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 10.2 ; and
- 10.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
- 10.1 The Customer shall:
- 11 Repair Services Provision of Repair Services
- 11.1 This clause 11 shall apply to Repair Services only.
- 11.2 The Supplier shall, subject to the remaining provisions of this clause 11 and in accordance with the Purchase Order in all material respects, provide the Repair Services to the Customer in respect of any Device.
- 11.3 Where the Repair Services are performed under Warranty, they shall be performed in accordance with the terms of that Warranty and applicable law, provided always that the Customer shall provide to the Supplier satisfactory evidence of an applicable Warranty for the Device.Customer’s obligations
- 11.4 The Customer shall:
- 11.4.1 prior to delivering any Device to the Supplier, make a backup copy of any data contained on the Device and remove from the Device any confidential, proprietary or personal information and any removable media including floppy disks, CDs, PC cards and SIM cards;
- 11.4.2 deliver (at its own risk and cost) the Device to the Supplier’s place of business;
- 11.4.3 pay the Repair Charges in accordance with clauses 11.14 and 11.15 ;
- 11.4.4 collect the repaired Device within 60 (sixty) days of the Supplier’s notice of collection pursuant to clause 11.12 , failing which the Supplier shall be entitled to treat the Device as abandoned and dispose of it in accordance with applicable law.
- 11.5 The Customer warrants and represents to the Supplier that in the event that the Repair Services include:
- 11.5.1 the transfer of information or data to or from any Device, the Customer has the right to copy and transfer such information or data as aforesaid, and grants to the Supplier the right to copy and transfer such information or data as aforesaid in order to provide the Repair Services in accordance with the Purchase Order or as otherwise instructed by the Customer; and/or
- 11.5.2 the installation of software onto the Device, the Customer has read, understood and agrees to be bound by any licence terms governing such software and hereby authorises the Supplier to accept such terms on its behalf,and the Customer shall indemnify the Supplier for any costs, demands or losses sustained or incurred by the Supplier arising directly or indirectly from the breach of its warranty and representation under this clause 11.5 .
Supplier’s rights and obligations
- 11.6 The performance by the Supplier of the Repair Services shall be subject to and dependent upon the Customer’s timely performance of its obligations hereunder, including its obligation to provide evidence of any applicable Warranty for the Device pursuant to clause 11.3 .
- 11.7 The Supplier shall, as soon as reasonable practicable following receipt of the Device pursuant to clause 11.4.2 , inspect the Device and use all reasonable endeavours to provide to the Customer an initial computer diagnosis together with a quotation and specification for the Repair Services. Any such quotation and specification shall not constitute an offer, and is only valid for a period of 14 (fourteen) days from its date of issue. The Supplier may withdraw it at any time by notice to the Customer.
- 11.8 The Supplier reserves the right to refuse to provide the Repair Services in respect of any Device which (in the Supplier’s reasonable opinion):
11.8.1 has serial numbers altered, defaced or removed;
- 11.8.2 is damaged as a result of accident, abuse, neglect, misuse (including faulty installation, repair or maintenance by anyone other than the Supplier, Apple or a third party authorised service provider for Apple); or
- 11.8.3 has been subjected to any of the following: unauthorised modification, extreme physical or electrical stress or interference, fluctuation or surges of electrical power, lightning, static electricity, fire, acts of God or other external causes,
and in such event, the Supplier shall (at its own cost), return the Device (unrepaired) to the Customer and shall have no further liability to the Customer in respect of the Device or any Repair Services (or lack thereof) relating to it.
- 11.9 If, following its inspection of the faulty Device, the Supplier deems that the Repair Services are not required, the Supplier shall, return the Device to the Customer, and shall have no further liability to the Customer in respect of the Device or any Repair Services (or lack thereof) relating to it.
- 11.10 If, in its performance of the Repair Services, the Supplier deems that Parts or labour are required as a result of internal damage or any fault which (in either case) was not visible on the Supplier’s initial inspection carried out pursuant to clause 11.7 are required, the Supplier shall notify the Customer and seek its approval of a revised quotation and specification for the Repair Services. If the Customer fails to give such approval within 7 days of such notification, the Supplier shall be entitled (at its own cost) to return the Device (unrepaired or part repaired) to the Customer, and shall have no further liability to the Customer in respect of the Device or any Repair Services (or lack thereof) relating to it.
- 11.11 In its performance of the Repair Services, the Supplier shall (at its own cost) send all defective Parts to Apple in exchange for an equivalent replacement Part. The Customer acknowledges and agrees that Apple shall be entitled to retain any replaced Parts as its property and that any replacement Part shall become the Customer’s property in accordance with clause 5.2. In the event of Apple or a third party making a repair or replacement charge to the Supplier then this will be passed on to the Customer.
- 11.12 The Supplier shall notify the Customer when any repaired Device is ready for collection from its place of business.Repair Charges
- 11.13 The Supplier reserves the right to invoice the Customer for the Diagnostic Fee in the event that:
- 11.13.1 the Supplier refuses to provide the Repair Services pursuant to clause 11.8 ;
- 11.13.2 following its inspection of the Device, the Supplier deems that the Repair Services are not required; or
- 11.13.3 following the provision of a quotation and specification pursuant to clause 11.7 or a revised quotation and specification pursuant to clause 11.10 , the Customer does not authorise the Supplier to provide (or continue to provide) the Repair Services.
- 11.14 Where the Repair Services are performed under Warranty, the Supplier shall invoice the Customer for the Warranty Charges, which the Customer shall pay in accordance with the terms of the Warranty.
- 11.15 Where the Repair Services are performed other than under Warranty, the Supplier shall invoice the Customer for the Repair Charges, and the Customer shall pay such invoice on delivery either by cash or in cleared funds to a bank account nominated in writing by the Supplier, or pursuant to any Line of Credit established in accordance with clause 12.6 . Without limitation to clauses 12.7, 12.8 and 12.9 (which for the avoidance of doubt, apply in respect of such payments), the Supplier shall be under no obligation to return any Device to the Customer until the Supplier has received in full all amounts due under the Contract.
- 11.16 The Customer acknowledges that there is a risk in the provision of the Repair Services, of loss, corruption or disclosure of confidential, proprietary or personal data or information contained on any Device and/or loss of or damage to removable media from any Device (“Data or Media Loss”). Without prejudice to clause 9.4 , the Supplier gives no warranty that the Repair Services will be performed without any such Data or Media Loss.
- 11.17 Risk in any Device shall remain at all times with the Customer. In the event of any loss of or damage to the Device whilst in the Supplier’s possession, the Supplier shall (at its option) repair or replace the lost or damaged Device and shall have no further liability to the Customer in respect of any such loss or damage.
12 Charges and Payment
- 12.1 The price for the Equipment shall be the price set out in the Purchase Order or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of delivery (“Price”). The Price is exclusive of all costs and charges of packaging, insurance, transport of the Equipment, which shall be paid by the Customer when it pays for the Equipment.
- 12.2 Subject to clause 12.3 , the charges for the Services shall be the charges set out in the Purchase Order or, if no charges are quoted, the charges set out in the Supplier’s published charges list as at the start date of the performance of the Services (“Charges”).
- 12.3 The Supplier reserves the right to:
12.3.1 increase delivery, Supplier
the Price by giving notice to the Customer at any time before
to reflect any increase in the cost of the Equipment to the that is due to:
any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
any request by the Customer to change the delivery date(s), quantities or types of Equipment ordered; or
any delay caused by any instructions of the Customer in respect of the Equipment or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Equipment; and
performance begins, to reflect any increase in the cost of performance to the Supplier that is due to:
any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other service costs);
any request by the Customer to change the Services themselves or the dates for performance thereof;
any delay caused by any instructions of the Customer in respect of the Services or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Services; or
in accordance with clause 11.10 in respect of the Repair Charges.
the Charges by giving notice to the Customer at any time before
- 12.4 Subject to clauses 11.14 and 11.5 (which shall apply in respect of the provision of Repair Services), the Supplier shall invoice the Customer and the Customer shall pay such invoice in accordance with clause 12.5 , (in the case of Equipment), prior to delivery, and (in the case of Services) prior to the commencement of performance thereof.
- 12.5 The Customer shall pay each invoice submitted by the Supplier within the timeframes referred to in clause 12.4 , either by cash or in cleared funds to a bank account nominated in writing by the Supplier, or pursuant to any Line of Credit established in accordance with clause 12.6 , as agreed by the Supplier and the Customer in the Supplier’s email acceptance of the Purchase Order. In any event, time for payment shall be of the essence of the Contract.
- 12.6 The Supplier may in its sole discretion establish a line of credit for the Customer (the “Line of Credit”). If the Supplier establishes a Line of Credit, it will do so on the following terms and conditions:
- 12.6.1 payment terms for all amounts due from the Customer to the Supplier (including payments for Services) will be 30 (thirty) days from the date of the Supplier’s invoice, except as otherwise required by the Supplier in writing;
- 12.6.2 the Line of Credit will limit the aggregate amount of credit that may be extended at any time to the Customer for amounts owing to the Supplier under any Contract, any other agreement or for any other sales or extensions of credit of any kind by the Supplier to the Customer;
- 12.6.3 the amount of the Line of Credit may be immediately adjusted upwards or downwards at any time as appropriate, at the discretion of the Supplier. In exercising its discretion, the Supplier reserves the right to consider and act upon the following, among other criteria: (i) the profitability and financial well-being of the Customer; (ii) whether current and accurate financial and business performance information are provided in a timely fashion by the Customer; (iii) the amount and likely present value of whatever collateral or credit enhancement has been provided; and (iv) whether the Supplier will likely be, or has been required to realise upon and liquidate such collateral or credit enhancement. The Customer acknowledges and agrees that the Supplier may reduce, vary or cancel the Line of Credit at any time without liability to the Customer;
- 12.6.4 the Supplier may, without liability to the Customer, suspend all sales or deliveries of Equipment or the supply of Services, to the Customer upon written notice to it in the event that the outstanding balance owed by the Customer to the Supplier would exceed the Line of Credit or whenever the Customer fails to make payment to the Supplier in accordance with these Conditions;
- 12.6.5 the Customer will provide to the Supplier its bank details, a bank reference, relevant and recent financial statements, at least two trade references and such other financial information as may be reasonably requested by the Supplier, on a quarterly basis. If such information is not provided in a timely manner, the Supplier may suspend all sales and deliveries of the Equipment or the supply of Services without liability to the Customer until such information is provided;
- 12.6.6 the Customer will pay a finance charge (interest) for all advances made under the Line of Credit at a daily periodic rate of 5% above Barclays Bank Plc’s base rate from time to time. The finance charge shall start to accrue on the date of the advance and shall be calculated by or on behalf of the Supplier by taking the unpaid balance for each day since the last payment made by the Buyer (or if no payment has been made, from the time of the advance) and multiplying by the applicable daily periodic rate. The sum of these amounts is the finance charge. The balance used to calculate the finance charge is the unpaid balance each day after payments and credits have been deducted and additions made.
- 12.7 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Equipment at the same time as payment is due for the supply of the Services or Equipment.
- 12.8 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then without limiting the Supplier’s remedies under clause 16 , the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
- 12.9 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
- 13 Intellectual Property Rights
- 13.1 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Equipment are and shall remain the sole property of the Supplier or (as the case may be) third party rights’ owner.
- 13.2 In relation to the Software:
- 13.2.1 the Customer acknowledges that it is buying only the media on which the Software is recorded and the accompanying user manuals;
- 13.2.2 nothing contained in these Conditions shall be construed as an assignment of any Intellectual Property Rights in the Software or user manuals; and
- 13.3 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier or (as the case may be) third party rights’ owner.
- 13.4 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
- 13.5 All Supplier Materials are the exclusive property of the Supplier.
- 14 Confidentiality
14.1 A party (“receiving party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (“disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
- 14.2 Without limitation to the generality of clause 14.1 ,the Customer shall keep in strict confidence and shall not disclose to any person (other than in accordance with clause 14.1 ) the Price or the Charges (including any Repair Charges and Warranty Charges).
- 14.3 This clause 14 shall survive termination of the Contract.
15 Limitation of Liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
- 15.1 The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
- 15.1.1 any breach of the Contract howsoever arising;
- 15.1.2 any use made or resale by the Customer of any of the Equipment or of any product incorporating any of the Equipment; and
- 15.1.3 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising out of or in connection with the Contract.
- 15.2 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
- 15.3 Nothing in these Conditions excludes or limits the liability of the Supplier for:
- 15.3.1 death or personal injury caused by the Supplier’s negligence; or
- 15.3.2 fraud or fraudulent misrepresentation.
- 15.4 Subject to clauses 15.2 and 15.3 :
- 15.4.1 the Supplier shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
- (a) loss of profits; or
- (b) loss of business; or
- (c) depletion of goodwill or similar losses; or
- (d) loss of anticipated savings; or
- (e) loss of goods; or
- (f) loss of contract; or
- (g) loss of use; or
- (h) loss or corruption of data or information;
- (i) loss, corruption or disclosure of confidential, proprietary or personal data or information;
- (j) loss of or damage to removable media from any Device; or
- (k) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses,
in each case, however caused, even if foreseeable; and
- 15.4.2 the Supplier’s total liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total price payable under the Contract for any Equipment and/or Services supplied or due to be supplied.
- 15.4.1 the Supplier shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
- 15.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
- 15.6 This clause 15 shall survive termination of the Contract.
16.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
- 16.1.1 the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 30 (thirty) days after receipt of notice in writing to do so;
- 16.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
- 16.1.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
- 16.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
- 16.1.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
- 16.1.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
- 16.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
- 16.1.8 the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
- 16.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- 16.1.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.1.2 to clause 16.1.9 (inclusive);
- 16.1.11 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
- 16.1.12 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
16.1.13 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
- 16.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment, or fails to comply with clause 12.6 or any other credit terms.
- 16.3 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Equipment under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer fails to comply with clause 12.6 or any other credit terms, the Customer becomes subject to any of the events listed in clauses 16.1.2 to 16.1.13 , or the Supplier reasonably believes that the Customer is about to become subject to any of them.
- 16.4 On termination of the Contract for any reason:
- 16.4.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
- 16.4.2 without prejudice to the generality of clause 16.4.1 , the Customer shall immediately pay to the Supplier all of the amounts due pursuant to any Line of Credit established in the Customer’s favour (including any applicable finance charge which has accrued up to and including the date of actual payment by the Customer pursuant to this clause 16.4.2 ), and the Customer’s right to benefit from such Line of Credit shall immediately cease;
- 16.4.3 the Customer shall return all of the Supplier Materials to the Supplier’s place of business;
- 16.4.4 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
- 16.4.5 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
- 17 Force Majeure
- 17.1 For the purposes of this Contract, “Force Majeure” Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
- 17.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
- 17.3 If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Equipment for more than 4 (four) weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
- 18 General
18.1 Assignment and other dealings.
- 18.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
- 18.1.2 The Customer acknowledges that the Supplier may refer it to third parties for the provision of certain services, in which event the Customer acknowledges and agrees that:18.104.22.168 such third parties may impose their own terms and conditions in respect of the provision of such services;22.214.171.124 the Supplier makes no representations, warranties or guarantees, whether express or implied, as to the status or reliability of such third parties or their ability to provide such services; and126.96.36.199 the Supplier shall have no liability to the Customer in respect of the provision of any such services by any such third parties.
- 18.1.3 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
- 18.2 Notices.
- 18.2.1 Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.
- 18.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 18.2.1 ; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
- 18.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
- 18.3 Severance.
- 18.3.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part- provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
- 18.3.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- 18.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- 18.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
- 18.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
- 18.7 Variation.
- 18.7.1 The Supplier shall give the Customer at least 30 (thirty) days’ writtennotice of any proposed amendment to these Conditions.
- 18.7.2 Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
- 18.8 Governing law. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of The Republic of Ireland.
- 18.9 Jurisdiction Each party irrevocably agrees that the courts of The Republic of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non- contractual disputes or claims).