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Consumer Terms and Conditions of Trading

1. DEFINITIONS
1.1. In these Conditions: "Conditions" are these terms and conditions of trading and any special terms and conditions mentioned on any written quotation or acceptance of the Consumers order.
1.2. "Consumer" means the party identified as the Consumer in these conditions to whom Smartcom Software may agree to supply Products in accordance with these conditions.
1.3. "Contract" is the contract for the purchase and sale of the products.
1.4. "Quotation" is a tender made by Smartcom Software whether oral or in writing.
1.5. Smartcom Software means Smartcom Software Ltd of Portsmouth Technopole, Kingston Crescent, Portsmouth PO2 8FA, United Kingdom or any subsidiary or associated company.
1.6. "Products" means Products or services including but not limited to computer hardware and software items to be provided by Smartcom Software to the Consumer in accordance with these terms and conditions.
1.7. "Software" means all software owned by or licensed to the Consumer from an owner (whether or not supplied by Smartcom Software) and which comprises part of the Products.
2. CONSUMER RIGHTS
2.1. The terms of these conditions do not affect a consumers statutory rights
2.2. The following terms shall only apply to those persons who purchase products from Smartcom Software as a consumer as defined in the consumer protection (distance selling) regulations ("Regulations")
2.3. A consumer shall, subject to the terms set out in this clause 15, have the right to cancel a contract within 7 working days from the day after the date of the delivery of the products by Smartcom Software to the consumer providing that the consumer makes the request to Smartcom Software in writing.
2.4. Should a consumer exercise their right to cancel pursuant to this clause, Smartcom Software will in accordance with the regulations, reimburse any payment made by the consumer for the products within 30 days of receiving the written notification of cancellation unless: -
2.4.1. The consumer does not take reasonable care of the products whilst in their possession, either prior to or after cancellation. The consumer will be deemed not to have taken reasonable care of the Products if such Products are not kept packaged in their original boxes, with all disks, manuals, cables and other items and that the external packaging is not altered in any way.
2.4.2. The Products contain software where the seal to the licence has been broken, or the software has been registered.
2.4.3 The order includes services, whether provided by Smartcom Software or a third party, and the service has commenced
2.4.4 The order includes goods made to your specifications or clearly personalised or which by reason of their nature cannot be returned
2.5. Any Products returned by the consumer under this clause must be returned carriage paid and insured by the consumer.
3. ORDER ACCEPTANCE
3.1. Smartcom Software may refuse to accept your order for any reason. We will not charge you for the order and will refund any monies already paid for the order.
3.2. Your order will be deemed accepted once you are sent notification that your order is accepted, or the order has been fulfilled.
4. DESPATCH
4.1. Smartcom Software endeavors to dispatch goods within 30 days from receipt of your order. You will be contacted in the event of your goods not being dispatched within 30 days from acceptance of your order and given the option to either cancel your order and receive a full refund, order a different product or wait for the delivery.
4.2. The place for delivery of the Products will be notified to Smartcom Software by the Consumer prior to despatch of the Products. If the Consumer fails to take delivery of the Products or fails to give Smartcom Software adequate delivery instructions at the time stated for delivery then Smartcom Software may store the Products until actual delivery and charge the Consumer for the costs (including insurance) of storage and redelivery; or sell the Products at the best price readily obtainable and (after deducting all storage, selling and other expenses) account to the Consumer for the excess over sums owing by the Consumer or charge the Consumer for any shortfall.
4.3. Risk shall pass to the Consumer at the time the Products are delivered by Smartcom Software or their agents.
4.4. If Products have not been received, the Consumer must notify Smartcom Software within 7 days of the date of the invoice. If proof of delivery is required, this must be requested within 14 days of the date of the invoice.
5. CANCELLATION AND RESCHEDULING
5.1. Smartcom Software may cancel the Contract with the Consumer by giving written notice in the event that:
5.1.1. any invoices for the sale of Smartcom Software's Products are overdue for payment;
5.1.2. for reasons beyond the control of Smartcom Software it is unable to effect delivery following the manufacturer's termination or recall of the Products or there is an insufficient supply of Products from the manufacturer;
5.1.3. On the giving of such notice of cancellation, Smartcom Software shall repay to the Consumer any sums paid in respect of the price of the Products.
6. PRICING
6.1. Catalogues, price lists and other advertising literature or material as used by Smartcom Software are intended only as an indication as to the price and range of Products offered and no prices, descriptions or other particulars contained therein shall be binding on Smartcom Software until the order is accepted.
6.2. All prices are given by Smartcom Software at the time of the order on an ex-works basis and the Consumer is liable to pay for transport, packing and insurance.
6.3. All prices are exclusive of Value Added Tax and any similar taxes. All such taxes are payable by the Consumer and will be supplied in accordance with UK legislation in force at the taxpoint date.
6.4. Quotations may be withdrawn at any time prior to acceptance of order and shall automatically be taken to have lapsed after 7 days from the date of the Tender.
7. PAYMENT TERMS
7.1. Invoices will be raised and dated by Smartcom Software on the date of despatch of the Products. Unless otherwise specifically requested and agreed, invoices will be payable prior to the despatch of the Products. Payments which are not received when payable will be considered overdue and remain payable by the Consumer together with interest for late payment from the date payable at the rate of 4% per annum above the base rate for the time being of The Co-Operative Bank. Such interest shall accrue on a daily basis and be payable on demand after as well as before judgment.
7.2. In the case of cheque payments, prior to despatch, Smartcom Software may at its discretion await clearance of the funds prior to despatch.
8. RETENTION OF TITLE & RISK
8.1. When all prices, taxes and charges due in respect of the Products and any Products supplied previously to the Consumer have been paid in full, title to hardware Products only shall pass to the Consumer.
8.2. The Consumer's power of sale or right to use such Products shall immediately cease if an Administrative receiver is appointed over all or any part of its assets or if it adjudicated bankrupt or enters liquidation whether compulsory or voluntary, or if the Consumer makes an arrangement with its creditors, or generally becomes unable to pay its debts within the meaning of the Insolvency Act 1986.
8.3. On termination of the Company's power of sale or right to use the Products the Consumer will immediately hold the Products to the order of Smartcom Software.
9. SPECIFICATION OF PRODUCTS
9.1. Smartcom Software will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in the manufacturer's specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. Smartcom Software will use its reasonable endeavours to advise the Consumer of any such impending variation as soon as it receives any such notice thereof from the manufacturer. Smartcom Software will not charge you for the order and will refund any monies already paid for the order should you wish to cancel.
9.2. Unless otherwise agreed, the Products are supplied in accordance with the manufacturer's standard specifications as these may be improved, substituted or modified. Smartcom Software reserves the right to increase its quoted or listed price, or to charge accordingly in respect of any orders accepted for Products of non-standard specifications "Specials" and in no circumstances will it consider cancellation of such orders or the return of such orders.
10. PROPRIETARY RIGHTS IN SOFTWARE PRODUCTS
10.1. The Consumer hereby acknowledges that any proprietary rights in any Software supplied hereunder including but not limited to any title or ownership rights, patent rights, copyrights and trade secret rights, shall at all times and for all purposes vest and remain vested in the Software owner.
10.2. The Consumer hereby acknowledges that it is its sole responsibility to comply with any terms and conditions of licence attaching to Software supplied and delivered by Smartcom Software (including if so required the execution and return of a Software licence). The Consumer is hereby notified that failure to comply with such terms and conditions could result in the Consumer being refused a software licence or having the same revoked by the proprietary owner. The Consumer further agrees to indemnify Smartcom Software in respect of any costs, charges or expenses incurred by Smartcom Software at the suit of a Software owner as a result of any breach by the Consumer of such.
10.3. NO TITLE OR OWNERSHIP OF SOFTWARE PRODUCTS OR ANY SOFTWARE LICENCED TOTHE CONSUMER UNDER THIS AGREEMENT IS TRANSFERRED TOTHE CONSUMER UNDER ANY CIRCUMSTANCES.
11. ACCEPTANCE / RETURN OF PRODUCTS
11.1. The Consumer shall notify Smartcom Software of any shortage of quantity or damage to the Products or any alleged failure to comply with its description in writing within 7 working days of receipt of the Products.
11.2. Returns must be made subject to the following:
11.2.1. prior authority having been obtained from Smartcom Software which will be given at Smartcom Software's sole discretion;
11.2.2. the Products must be properly packed;
11.2.3. the Product is still covered by warranty (see section 12).
11.3. If Smartcom Software agrees to accept return of the Products. Smartcom Software will arrange to collect the goods. If upon inspection the goods have been mistreated, used in an inappropriate manner or are in fact not faulty, Smartcom Software reserves the right to charge a 15% restocking fee.
12. WARRANTY
12.1. If any part of the hardware Products should prove defective in materials or workmanship under normal operation or service, such Products will be repaired or replaced only in accordance with any warranty cover or terms as provided by the manufacturer of the Products PROVIDED THAT no unauthorised modifications to the Product or to the system of which the Product forms part have taken place. Smartcom Software is not responsible for the cost of labour or other expenses incurred in repairing defective or non-conforming parts.
12.2. If the Products are rejected by the Consumer as not being in accordance with the Consumer's order pursuant to clause 12.1, Smartcom Software will only accept the return of such Products provided that it receives written notification thereof giving detailed reasons for rejection. Smartcom Software will not consider any claim for compensation, indemnity or refund under liability, if any, has been established or agreed with the manufacturer and where applicable the insurance company. Under no circumstances shall the invoiced Products be deducted or set off by the Consumer until Smartcom Software has passed a corresponding credit note.
13. DEFAULT
13.1. The Consumer shall indemnify Smartcom Software against all reasonable losses arising out of the Consumer's breach or breaches of these conditions of sale.
14. FORCE MAJEURE
14.1. Smartcom Software shall be entitled to cancel or rescind the contract if the performance of its obligations under the contract is in any way adversely affected by any cause whatsoever beyond Smartcom Software's control including (but not limited to) the delays or default of any sub-contractor, war, strike, lock-out, trade disputes, flood, accident to plant or machinery, shortage of materials or labour."
15. TERMINATION
15.1. This agreement may be terminated forthwith by notice in writing:
15.1.1. By Smartcom Software if the Consumer fails to pay any sums due hereunder by the due date notwithstanding the provisions for late payment as in clause 7.1.
15.1.2. If either party fails to perform any of its obligations under this Agreement and such failure continues for a period of 14 days after written notice thereof, by the other party.
15.1.3. If either party is involved in any legal proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or a reconstruction, or makes an arrangement with creditors or petitions for an administration order or has a Receiver or Manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986,then without prejudice to any other rights or remedies available to it, the other party shall have the right to terminate this Agreement forthwith.
15.2. Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law, and shall not affect any accrued rights or liabilities of either party.
16. EXPORT AND/OR RE-EXPORT LIMITATION
16.1. Having regard to the current statutory or other United Kingdom government regulations in force from time to time and, in the case of Products manufactured outside of the United Kingdom, to the current export rules and regulations of the country of manufacture in force from time to time and regardless of any disclosure made by the Consumer to Smartcom Software of an ultimate destination for any Products, the consumer will not export or re-export any Products without first obtaining all such written consents or authorisations as may be required by any applicable government regulations.
17. CONTRACT
17.1. Neither party shall be liable to the other for any delay in failure to perform its obligations hereunder (other than a payment of money) where such delay or failure results from force majeur, act of God, fire, explosion, accident, industrial dispute or any cause beyond its reasonable control.
17.2. Any documents or notices given hereunder by either party to the other must be in writing and may be delivered personally or by recorded delivery or registered post and in the case of post will be deemed to have been given 2 working days after the date of posting. Documents or notices shall be delivered or sent to the addresses of the parties on the first page of this Agreement or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of this Agreement.
17.3. These terms and conditions shall be construed in accordance with English Law.