Terms and Conditions for the Sale of IT Equipment

These terms and conditions (Terms) apply to the sale of IT equipment by us, Inbay Limited of 77 Kingsway, London WC2B 6SR from any of our stores (Store(s)) by visitors to a Store or at our customers’ homes as part of ‘Home Services’. We do not sell products online or via telephone or mail order.

1. INTERPRETATION

1.1 The following definitions apply in these Terms: Contract: your order and our acceptance of it in accordance with clause 3.3. Customer: you, the person, firm or company who purchases Equipment from us. Equipment: the equipment agreed in the Contract to be purchased by you from us (including any part or parts of it). Force Majeure Event: has the meaning given in clause 17.1. Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world. Representation: has the meaning given in clause 19.4. Software: any operating system installed on the Equipment or otherwise supplied by us to you. VAT: value added tax chargeable under English law for the time being and any similar additional tax.

2. APPLICATION OF THESE TERMS

2.1 These Terms shall apply to and be incorporated in the Contract and prevail over any inconsistent terms or clauses contained in or referred to in your purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

2.2 No addition to, variation of, exclusion or attempted exclusion of any condition of the Contract shall be binding on us unless in writing and signed by our duly authorised representative.

3. BASIS OF SALE

3.1 Any quotation is valid for a period of 30 days only and we may withdraw it at any time by notice to you.

3.2 Each order or acceptance of a quotation for Equipment by you shall be deemed to be an offer by you subject to these Terms. You shall ensure that its order is complete and accurate.

3.3 A binding contract shall not come into existence between us until we issue a written order acknowledgement to you, or we deliver the Equipment to you (whichever occurs earlier).

3.4 We 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 you to repudiate or cancel any other Contract or instalment.

3.5 Save as otherwise provided in these Terms, no order which has been acknowledged by us may be cancelled by you, except with our written agreement and provided that you indemnify us 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 us as a result of cancellation.

4. CONSUMER RIGHTS

4.1 If you are contracting as a consumer and you buy our Equipment during our visit to your home as part of our ‘At Home Services’, you may cancel a Contract at any time within seven working days, beginning on the day after you received the Equipment, provided that the Equipment costs more than £35. This is your statutory right under the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008.

4.2 In this case, you will receive a full refund of the price paid for the Equipment and we will process the refund due to you as soon as possible and, in any event, within 30 days of the day on which you gave us notice of cancellation. In this case, we will refund the price of the Equipment in full, and any applicable delivery charges. However, you will be responsible for the cost of returning the item to us.

4.3 To cancel a Contract, you must inform us in writing. You must also return the Equipment to us as soon as reasonably practicable, and at your own cost. You have a legal obligation to take reasonable care of the Equipment while it is in your possession. If you fail to comply with this obligation, we may have a right of action against you for compensation.

4.4 You will not have any right to cancel a Contract for the supply of any of the following Equipment:

(a) items made to your specification or which have been personalised for you;

(a) the supply of goods which by their nature are consumed by use and which, before the cancellation, were so consumed, such as software which has been unsealed or downloaded by you.

4.5 This clause 4 does not affect your other statutory rights as a consumer.

5. QUANTITY AND DESCRIPTION

5.1 The quantity and description of the Equipment shall be as set out in our acknowledgement of order or (if there is no acknowledgment of order) quotation.

5.2 All samples, drawings, descriptive matter, specifications and advertising issued by us, and any descriptions or illustrations contained in our catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.

5.3 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 us shall be subject to correction without any liability on our part.

5.4 We reserve the right (but do not assume the obligation) to make any changes in the specification of the Equipment which are required to conform with any applicable legislation or, where the Equipment is to be supplied to your specification, which do not materially affect their quality or performance.

5.5 Our employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Equipment.

6. PRICES

6.1 The price of the Equipment shall be our quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in our price list current at the date of acceptance of the order. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance and other charges and duties. Prices shown are inclusive of VAT for consumers/businesses visiting us in-Store or requesting a quote from a Store, but are always shown exclusive of VAT on our business quotations.

6.2 The price for the Equipment is based on the rate prevailing at the date of our acknowledgement of the order and we may increase the price to cover any increases due to market clauses (including, but not limited to, increases in foreign exchange rates relating to the Equipment, or in labour, materials, supply or transportation costs) which affect us at the date of delivery or caused by any change in delivery dates, quantities or specifications for the Equipment which is requested by you, or any delay caused by any of your instructions or your failure to give us adequate information or instructions.

7. PAYMENT

7.1 Subject to any special terms agreed in writing between us, we may invoice you for the price of the Equipment on or at any time after delivery of the Equipment, unless the Equipment is to be collected by you or you wrongfully fail to take delivery of the Equipment. In either case we shall be entitled to invoice you for the price at any time after we have notified you that the Equipment is ready for collection.

7.2 The terms of payment are as follows:

(a) for businesses we may (in our sole discretion) allow a credit period (on such terms as shall be agreed between us in writing) or we may ask for payment in advance by bank transfer, cleared cheque or credit/debit card;

(b) for consumers buying in a Store we require payment in advance by credit/debit card or in cash (we do not accept cheques);

(c) for consumers buying goods at home we require payment in advance by credit/debit card (we do not accept cash or cheques at a consumer’s home).

7.3 If we only have part of the Equipment in stock, we may elect to charge you just for that part or we may also request you to pay in advance for items which we order for you, in our sole discretion.

7.4 If you are a business and we have agreed any credit terms with you in writing, if you fail to make payment in full on the due date, the whole of the balance of the price of the Equipment then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to us, we shall be entitled to:

(a) terminate the Contract or suspend any further deliveries of Equipment (whether ordered under the same contract or not) to you;

(b) charge interest on the amount outstanding from the due date to the date of receipt by us (whether or not after judgment), at the annual rate of 4% above the base lending rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. We reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;

(c) suspend all further manufacture, delivery, installation or warranty service until payment has been made in full.

7.5 Time for payment of the price shall be of the essence of the Contract.

7.6 All sums payable to us under the Contract shall become due immediately on its termination, despite any other provision of the Contract. This clause 7.6 is without prejudice to any right to claim for interest under the law, or any right under the Contract.

7.7 We may, without prejudice to any other rights we may have, set off any liability of you to us against any liability of us to you.

8. DELIVERY OF EQUIPMENT AND ACCEPTANCE

8.1 We shall test and inspect the Equipment on or prior to delivery (at our option) to ensure that it complies with the requirements of the Contract.

8.2 We shall use our reasonable endeavours to deliver the Equipment on the date or dates specified in our acknowledgement of 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 order. Time is not of the essence as to the delivery of the Equipment and we are not liable for any delay in delivery, however caused.

8.3 Delivery shall be made during normal business hours (excluding bank or public holidays). We may levy additional charges for any deliveries made outside such hours at your request.

8.4 You shall be responsible (at your 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 install the Equipment. If we are prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, we may levy additional charges to recover our loss arising.

8.5 Unless otherwise agreed by us in writing, you shall be deemed to have accepted the Equipment when you have had seven days to inspect it after delivery and you have not exercised in writing your right of rejection in accordance with clause 11.

9. RISK AND PROPERTY

9.1 Unless you have elected to arrange for your own collection and delivery (when risk will pass to you upon collection), the Equipment shall be at our risk until delivery to you at the place of delivery specified in our acknowledgement of order or when you collect the Equipment from our premises.

9.2 Ownership of the Equipment shall pass to you on the later of completion of delivery, or when we have received in full in cleared funds all sums due to us in for the Equipment and all other sums which are or which become due to us from you on any account.

9.3 Until ownership of the Equipment has passed to you under clause 9.2, you shall:

(a) hold the Equipment on a fiduciary basis as our bailee;

(b) store the Equipment (at no cost to us) in satisfactory condition and separately from all your other equipment or that of a third party, so that it remains readily identifiable as our property;

(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment; and

(d) keep the Equipment insured on our behalf for its full price against all risks with a reputable insurer to our reasonable satisfaction, ensure that our interest in the Equipment is noted on the policy, and hold the proceeds of such insurance on trust for us and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

9.4 Your right to possession of the Equipment before ownership has passed to you shall terminate immediately if any of the circumstances set out in clause 16 arise or if you encumber or in any way charge the Equipment, or if you fail to make any payment to us on the due date.

9.5 You grant us, our 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 your right to possession has terminated, to remove it. All costs incurred by us in repossessing the Equipment shall be borne by you.

9.6 On termination of the Contract for any reason, our (but not your) rights under this clause 9 shall remain in effect.

10. SOFTWARE LICENCE

10.1 If we refer to a software licence in the acknowledgment of order, the price of the Equipment includes the licence fee for your right to use the Software.

10.2 If you are provided with any operating system software licence for the Software, you shall sign and return it to us within seven days of installation, unless the licence has been supplied on a "shrink-wrap" or "click-wrap" basis.

10.3 If no software licence has been provided to you, you hereby accept a non-exclusive, non-transferable licence to use the Software on the following conditions:

(a) you shall not copy (except to the extent permissible under applicable law or for normal operation of the Equipment), reproduce, translate, adapt, vary or modify the software, nor communicate it to any third party, without our prior written consent;

(b) unless authorised by us, you shall not use the Software on or in conjunction with 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;

(c) such licence shall be terminable by either party 28 days' written notice, provided that we terminate only if the continued use or possession of the Software by you infringes the developer's or a third party's rights, or we are compelled to do so by law, or if you have failed to comply with any term of the Contract; and

(d) on or before the expiry of this licence, you shall return to us all copies of the Software in your possession.

11. WARRANTY

11.1 Where we are not the manufacturer or developer of any part of the Equipment, we will endeav¬our to transfer to you the benefit of any warranty or guarantee given to us.

11.2 Subject to clause 11.1, we warrant to you that the Equipment will, on delivery, conform in all material respects with its description, be of satisfactory quality, and be reasonably fit for all the purposes for which products of that kind are commonly supplied.

11.3 We undertake (subject to the remainder of this clause 11), at our option, to repair or replace Equipment (other than consumable items) which is found to be in breach of the above warranty.

11.4 We shall not be liable for a breach of the warranty contained in clause 11.1 unless:

(a) you give us written notice of the defect within seven days of delivery; and

(b) after receiving the notice, we are given a reasonable opportunity of examining such Equipment and you (if asked to do so by us) return such Equipment to our place of business at our cost for the examination to take place there.

11.5 We shall not be liable for a breach of the warranty in clause 11.1 if:

(a) you make any further use of Equipment reported to us under clause 11.4(a);

(b) the defect arises because you failed to follow our oral or written instructions for the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice; or

(c) you alter or repair the relevant Equipment without our written consent.

11.6 We shall not be liable for any damage or defect to the Equipment caused by improper use of the Equipment or use outside its normal application.

12. REMEDIES

12.1 We shall not be liable for any non-delivery of Equipment (even if caused by our negligence) unless you notify us in writing of the failure to deliver within seven days after the scheduled delivery date.

12.2 Our liability for non-delivery of the Equipment shall be limited to replacing the Equipment within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Equipment.

12.3 If our performance of our obligations under the Contract is prevented or delayed by any act or omission by you (other than by reason of a Force Majeure Event under clause 17), you shall be liable to pay us all reasonable costs, charges or losses sustained by us as a result, subject to us notifying you in writing of any such claim we might have against you in this respect.

13. LIMITATION OF LIABILITY

13.1 The following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:

(a) any breach of the Contract; and

(b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising out of or in connection with the Contract.

13.2 Nothing in these Terms excludes or limits our liability for:

(a) death or personal injury caused by our negligence; or

(b) fraud or fraudulent misrepresentation.

13.3 Subject to clauses 13.1 and 13.2:

(a) we shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent) or otherwise for loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss or corruption of data or information; any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;

(b) our total liability in contract, tort (including negligence or breach of statutory duty), 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 price payable for the Equipment under clause 6.

14. INTELLECTUAL PROPERTY RIGHTS

14.1 You acknowledge that all Intellectual Property Rights used by us or subsisting in the Equipment are and shall remain our sole property or (as the case may be) that of a third party rights owner.

14.2 We shall retain the property and copyright in all documents supplied to you in connection with the Contract, which must not be communicated to any other person, firm or company without our prior written consent.

14.3 Our Intellectual Property Rights in and relating to the Equipment shall remain our exclusive property, and you shall not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any of your agents or contractors or any other person to do so.

14.4 In relation to the Software:

(a) nothing contained in these Terms shall be construed as an assignment of any Intellectual Property Rights in the Software or user manuals; and

(b) you shall be subject to the rights and restrictions imposed by the owner of the Intellectual Property Rights in the Software and user manuals, and you shall comply with all licence agreements, terms of use and registration requirements relating to them.

15. CONFIDENTIALITY AND OUR PROPERTY

15.1 You 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 you by us or our agents, and any other confidential information concerning our business or our products which you may obtain. You shall restrict disclosure of such confidential material to such of your employees, agents or sub-contractors as need to know the same for the purpose of discharging your obligations to us, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind you.

15.2 All materials, equipment and tools, drawings, specifications and data supplied by us to you shall at all times be and remain our exclusive property, but shall be held by you in safe custody at your own risk and maintained and kept in good condition by you until returned to us, and shall not be disposed of or used other than in accordance with our written instructions or authorisation.

15.3 This clause 15 shall survive termination of the Contract, however arising.

16. TERMINATION

16.1 Without prejudice to any other right or remedy we may have, we may terminate the Contract or suspend any further deliveries under the Contract without liability to you and, if the Equipment has been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary if:

(a) your ability to accept delivery of the Equipment is delayed, hindered or prevented by circumstances beyond your reasonable control;

(b) an order is made or a resolution is passed for your winding up, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to you;

(c) an order is made for the appointment of an administrator to manage your affairs, business and property, or documents are filed with a court of competent jurisdiction for the appointment of an administrator, or notice of intention to appoint an administrator is given by you or your directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);

(d) a receiver is appointed of any of your assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager, or if any other person takes possession of or sells your assets;

(e) you make any arrangement or composition with your creditors, or make an application to a court of competent jurisdiction for the protection of your creditors in any way, or become bankrupt;

(f) you cease, or threaten to cease, to trade; or

(g) you take or suffer any similar or analogous action to any of the foregoing in any jurisdiction in consequence of debt.

16.2 Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive or implicitly surviving termination.

17. FORCE MAJEURE

17.1 We reserve the right to defer the date of delivery, to cancel the Contract or to reduce the amount of Equipment ordered, if we are prevented from or delayed in carrying on our business or any obligation under these Terms by any act, event, omissions or accident beyond our reasonable control (Force Majeure Event), including (without limitation) any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, power outage or electrical failure, theft of computers or related equipment, viruses and other hostile computer acts, telecommunications failures, non-availability of third party data centres, acts of terrorism, civil riot or war).

17.2 Our obligations under these Terms are suspended for the period that the Force Majeure Event continues, and we will extend the time to perform these obligations for the duration of that period. We will take reasonable steps to bring the Force Majeure Event to a close or to find a solution by which our obligations under these Terms can be performed despite the Force Majeure Event.

18. NOTICES

18.1 Any notice required to be given pursuant to these Terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the address of the party as set out in these clauses, or such other address as may be notified by one party to the other. A notice delivered by hand is deemed to have been received when delivered (or, if delivery is not in business hours, 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

19. GENERAL

19.1 A waiver of any right under the Contract is only effective if it is in writing and signed by or on behalf of the waiving party, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

19.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

19.3 If any provision of these Terms (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

19.4 Each party acknowledges that, in entering into the Contract and the documents referred to in it, it does not rely on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this agreement or not) other than as expressly set out in the Contract or those documents.

19.5 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.

19.6 Nothing in these Terms shall limit or exclude any liability for fraud.

19.7 You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under the Contract.

19.8 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the Contract.

19.9 The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.

19.10 The Contract and these Terms and any disputes or claims arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England. Each of us hereby submits to the exclusive jurisdiction of the English courts.