Standard Conditions of Contract
These Terms and Conditions are effective from January 29, 2007.until further notice.
Zephyr means Zephyr Technologies. Zephyr's email address is: firstname.lastname@example.org
Zephyr contracts with the Customer subject to the terms and conditions set out in the Agreement. By clicking I agree to these terms and conditions, the Customer is accepting the terms of this Agreement and agrees to be bound by these terms. No additions to or modifications of this Agreement shall be effective unless accepted by Zephyr in writing. Zephyr may (only with a valid reason in the case of Consumers) modify these terms by posting an updated copy of them on the Website from time to time. Zephyr is entitled to terminate or revise the terms of this Agreement with immediate effect in the case of obvious errors or inaccuracies regarding the services or prices appearing on the Website by notifying the Customer at its last known email address.
Some sections of this Agreement apply to all of Zephyrs Customers, however, other sections are specific to Consumers only or to Business Users only. This Agreement intends to comply with all your statutory rights as a Consumer. However, in the event that any uncertainty arises your statutory rights as a Consumer will take priority over the Agreement.
This Agreement, together with any documents referred to in it, constitute the entire agreement between the parties relating to its subject matter and supersede any prior drafts, agreements, undertakings, representations, warranties and agreements of any nature, whether in writing or oral, relating to such subject matter. The Customer acknowledges that it has not been induced to enter into the Agreement by any representation or warranty other than those contained in this Agreement and, agrees that it shall have no remedy in respect of any other such representation or warranty except in the case of fraud. Business User acknowledges that its legal advisers have explained to it the effect of this Clause.
(a) Any period or times stated for delivery or for compliance with any other contractual obligations of Zephyr are estimates only. If the estimated delivery date cannot be met then the Consumer (although not the Business User) will be contacted & advised of a proposed new date for delivery. If the Consumer refuses the revised delivery date and delivery is not made within 30 days from the original date of order or prior to the specifically agreed delivery date if applicable, then Consumer may cancel the order without charge and obtain a full refund. In any event, Zephyr accepts no responsibility for loss or damage resulting from delay or failure to notify the Business User of any such delay.
(b) Such time estimates run from the date of the Order Confirmation together with any payment due and receipt of all samples, information, licences and consents necessary to proceed with the order.
(c) Changes in specification, additional work or revised instructions relating to any aspect of the order will entitle Zephyr to vary any estimates of price and/or time for fulfilment of its obligations under the Agreement.
(a) Unless otherwise specified by Zephyr, the Price is exclusive of any value added tax or other applicable sales tax or duty.
(b) In respect of Business Users only, the Price is subject to Zephyrs right to increase any price to take account of delivery charges, insurance, costs, special handling charges (if any) and/or packing charges (if any), agreed changes in the specifications of Equipment or changes in any taxes, duties or levies charged on or in relation to the Equipment or goods, materials or services used on or in relation to this Agreement and/or any extra costs or expense incurred by Zephyr as a result of site conditions, delays, interruptions, lack of information, currency fluctuations and/or without limitation any other factors beyond Zephyrs reasonable control.
5. DESPATCH AND DELIVERY
(a) Unless otherwise agreed in writing, the delivery of the Equipment will take place at Zephyrs premises (ex-works, in accordance with the Incoterms 2000). Unless otherwise stated on the Order Confirmation, the Customer shall be responsible for arranging, paying for and taking the risk in relation to carriage of the Equipment from Zephyrs premises or those of Zephyrs supplier. In all cases, the Customer shall make all arrangements necessary to take delivery of the Equipment whenever the Customer is informed that the Equipment is ready for delivery and the Customer is solely responsible for unloading the Equipment at the point of delivery.
(b) Subject to Clause 3(a), if the Customer refuses or fails to take delivery of Equipment tendered in accordance with this Agreement or fails to take any action necessary on its part for delivery and/or shipment of the Equipment, Zephyr shall be entitled (in its absolute discretion and without prejudice to any other rights and remedies) to:
(i) terminate the Agreement with immediate effect;
(ii) dispose of the Equipment as Zephyr may determine; and/or
(iii) recover from the Business User any reasonable losses and additional costs incurred as a result of such refusal or failure (including, without limitation, storage costs from the due date of delivery, any costs of disposal incurred pursuant to Clause 4(b)(ii) above and any shortfall in price between that obtained under Clause 4(b)(ii) and that set out in the Order Confirmation.
(c) If the Equipment is stored by Zephyr at the Customers request or after notice has been given that the Equipment is ready for despatch the Customer shall reimburse Zephyr for all reasonable costs and expenses of storage (including any necessary transit costs and insurance).
(a) The Customer shall be responsible for inspecting the Equipment on arrival and shall notify Zephyr immediately if there is any damage to the Equipment, or any discrepancy or shortage in the Equipment delivered from that specified in the Order Confirmation otherwise, subject to the time period set out in Clause 8(a) in respect of Consumers, the Customer shall be deemed to have accepted the Equipment. After acceptance the Customer shall not be entitled to reject any Equipment which is not in accordance with this Agreement.
(b) If the Customer specifically authorises Zephyr to make any contract of carriage and/or insurance as Zephyr considers necessary to enable the Customer to insure the Equipment during sea transit (if applicable), the Customer shall be responsible for complying with all conditions and requirements of the carriers or insurers under such contracts.
7. PROPERTY RISK AND INSURANCE
(a) Title in the Equipment shall only pass from Zephyr if:
(i) the Customer has paid Zephyr unconditionally and in full all monies due under this Agreement; and
(ii) in the case of Business Users only, no other sums are then outstanding from the Customer to Zephyr whether or not such sums have become due for payment.
(b) Until such time as title in the Equipment passes to the Customer, the Customer shall hold the Equipment as Zephyrs fiduciary agent and bailee, and shall:
(i) not permit any charge, lien or other encumbrance whatsoever to be created over any property of Zephyr;
(ii) take proper care of the Equipment and take all reasonable steps to prevent damage to or deterioration of them;
(iii) store the Equipment marked in such a way that they are clearly identifiable as Zephyr's property;
(iv) insure and keep insured the Equipment to its full value against all risks until the date that title in the Equipment passes from Zephyr and shall upon reasonable notice furnish Zephyr with satisfactory evidence that adequate policies of insurance are being maintained and that the premiums are paid up to date;
(v) notify Zephyr immediately upon the happening of any of the events set out in Clauses 7(a)(i) and 7(a)(ii); and
(vi) give Zephyr such reasonable information relating to the Equipment as Zephyr may from time to time require, and Zephyr shall be entitled at any time to require the Customer to deliver up the Equipment to Zephyr. If Business User fails to do so forthwith, to enter upon any premises of the Business User or any third party where the Equipment is stored and repossess and resell any of the Equipment to which it has retained title. Zephyrs consent to the Customers possession of the Equipment and any right the Customer may have to possession of the Equipment shall in any event cease upon the happening of any of the events set out in Clause 7(b).
(c) Risk in the Equipment shall pass to the Customer on despatch of or collection of the Equipment.
(d) The Business User grants an irrevocable right and licence to Zephyr and its employees and agents to enter at any time the Business Users premises, or agrees to procure such rights in the event that the Equipment are stored at premises other than the Business Users premises, during normal business hours for the purpose of inspecting and /or repossessing Equipment to which Zephyr has retained title. This right and licence shall continue to subsist notwithstanding the expiry or termination for any reason of this Agreement and is without prejudice to any accrued rights of Zephyr under this Agreement or otherwise.
8. COOLING OFF PERIOD
(a) Consumer may cancel their Orders for any reason until, but no later than:
(i) the end of the seventh Working Day after the day of receipt of the Equipment; or
(ii) the end of the seventh Working Day after the date when all such information required by law is supplied.
(b) Consumers right to cancel software that may be supplied on either CD, DVD or other similar storage devices is also lost if the software is unwrapped.
(c) On cancellation of the Order, the Consumer shall return the Equipment to Zephyr in their original condition, undamaged and at the cost of Consumer. Consumer shall take reasonable care to ensure that the goods are not damaged whilst in transit using means arranged by Consumer. Whilst in possession of the goods Consumer shall be under a duty to take reasonable care of them. Zephyr shall take action against Consumer for goods returned which have been made unfit for resale or damaged whilst in the possession of Consumer.
(d) The provisions of Clauses 8 (a) (c) do not apply to Equipment that is damaged or defective.
(e) On cancellation of the Order, Zephyr will refund the price paid, less the direct cost of recovering the goods (when applicable), within a period of 30 days from the date of cancellation.
(f) Notwithstanding anything herein to the contrary, Business Users may only reject Equipment for a material non-conformity with the Equipment description by providing written notice to Zephyr within 7 days after delivery or otherwise shall be deemed to have accepted the Equipment.
(a) Unless otherwise agreed in writing the Price must be paid within 7 days of the applicable invoice date. Time for payment is of the essence. For the avoidance of doubt, time shall not be of the essence in respect of any of Zephyrs obligations to Business Users under this Agreement.
(b) Payment shall be made before supply of Equipment. Zephyr may suspend delivery of Equipment until full payment is received. If Zephyr has delivered Equipment and the Equipment remains neither paid for nor made available for collection when reasonably demanded, then Zephyr may recover the outstanding payment and/or Equipment and the recovery costs are to be paid by the Consumer.
(c) In no case shall any dispute concerning any item or separate part of the Equipment or any further contractual obligation of Zephyr to the Customer affect the Customers obligation in respect of payments for other parts.
(d) Without prejudice to any other right of Zephyr under this Agreement or otherwise, all overdue payments shall carry interest at the rate of two (2) per cent above the HSBC base rate per month on the amount or amounts for the time being outstanding.
(e) In the event that the Customer does not take delivery of the whole quantity of the Equipment on any date or within any time specified in the Order Confirmation then, without prejudice to any other remedy available to Zephyr under this Agreement, any discount or other allowance in respect of quantities of goods ordered which is or would be otherwise allowed to the Customer shall be recalculated in relation to the amount of Equipment actually accepted by the Customer.
(a) Subject to Clause 10(j), the provisions of this Clause 10 set out the entire liability of Zephyr (including any liability for negligence or otherwise for the acts or omissions of its officers, employees, agents and sub-contractors) to the Customer in respect of: -
(i) any breach of this Agreement; and
(ii) any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement.
(b) Any defect in, or failure of, the Equipment shall be notified in writing forthwith to Zephyr. Zephyr will, on the basis indicated below, make good by repair or exchange the Equipment or parts thereof which are shown, in the case of Business Users only, to Zephyrs reasonable satisfaction to have proved defective in materials or workmanship within the manufacturers specified warranty period provided that such Equipment has been properly used and maintained by the Customer to Zephyrs satisfaction. Zephyr shall decide whether such making good shall be effected at the premises of the Customer or at Zephyrs premises. Defective Equipment or parts which are returned to Zephyrs offices must be carriage paid by the Customer and at Customers risk both to and from Zephyrs offices and Zephyr shall not be responsible for installation of parts so returned after repair or exchange by Zephyr. All labour costs and expenses (if any) incurred by Zephyr in extracting defective parts and/or components shall be borne by them and paid for by the Business User at Zephyrs then standard applicable rate.
(c) Disputes in quantity or dimensions of any Equipment shall not be a ground for Business Users to terminate this Agreement or any outstanding part of any Order.
(d) Except as expressly stated in this Agreement, Zephyr does not give any representations, warranties or undertakings in relation to the Equipment, and in particular the source of supply or manufacturer of the Equipment. Zephyr does not make any warranty or representation to Business Users as to merchantability of the Equipment or warrant that the Equipment is of satisfactory quality, without defect or fit for any particular purpose. Any representation, condition or warranty applicable to Business Users which might be implied or incorporated into this Agreement by reason of statute, common law or otherwise is excluded to the fullest extent permitted by law.
(e) The obligation of Zephyr in Clause 10(b) shall not apply if any defect in the Equipment has been caused by:
(i) any act or omission of the Customer or of any third party;
(ii) use of the Equipment in conjunction with other products or materials which have not been approved by Zephyr, or any modification of the equipment not approved by Zephyr;
(iii) abnormal or unsuitable conditions of storage or use;
(iv) non-compliance with any applicable documentation or any of Zephyrs instructions; or
and Zephyrs obligation under Clause 10(b) represents the Business Users sole remedy in respect of any defect in the Equipment and Zephyr shall not be under any obligation to provide any upgrades, updates, or maintenance of the Equipment. In claiming against Zephyr for any such losses Consumer is expected to have acted reasonably, for example, with regard to how the losses were accrued (including steps taken to mitigate or to avoid losses occurring) and taking reasonable precautions to avoid loss (such as contacting Zephyr promptly upon becoming aware of an issue).
(f) Equipment sold to Consumers shall be suitable for general use in a domestic, non commercial, non research environment in a manner which is consistent with the specification, functionality and service standards described in the Equipment description. Fitness for use in any other manner or environment must be explicitly and clearly agreed (preferably in writing) with Zephyr prior to purchase.
(g) Subject to Clause 10(j), Zephyr shall not in any circumstances be liable for any loss of profits (whether direct or indirect), any loss of revenue, anticipated savings, goodwill or any other type of special direct or consequential loss or damage of any nature howsoever arising and, in respect of Business Users only, whether occasioned by the negligent act or default of Zephyr, its servants, agents, subcontractors or suppliers or from anything supplied or specified by the Customer.
(h) The Customer shall reimburse Zephyr for all costs, expenses, losses or damages arising directly or indirectly from the late or non-delivery of anything supplied or specified by the Customer.
(i) Subject to Clause 10(j), Zephyrs total liability in contract, tort (including negligence or breach of statutory duty) misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Agreement to Business Users shall be limited to the invoiced value set out in the Order Confirmation.
(j) Nothing in this Agreement shall exclude or restrict Zephyrs liability:
(i) in respect of fraudulent misrepresentation;
(ii) for death or personal injury caused by negligence;
(iii) under section 12 of the Sale of Goods Act 1979; or
(iv) any other liability which cannot be limited by law.
11. PERFORMANCE DATA
Any performance figures quoted or referred to in any specification of the Equipment or other document associated with this Agreement are estimates only, and are based on amongst other considerations, use of the Equipment in a well managed office with experienced, adequate and efficient operators and appropriate services, and proper use of appropriate materials.
Zephyr reserves the right on the sale of any Equipment to make before delivery any alteration to or departure from the specifications or design of the Equipment details on the Order Confirmation, provided that, there is a valid reason to make such a change and it shall not to a material extent adversely affect the performance of the Equipment. Zephyr will identify any such changes in the Order Confirmation and draw the Consumers attention to these changes. All specification, drawings and technical documents issued by Zephyr either before or after conclusion of the Agreement are issued solely for the Customers use in connection with the Equipment and shall not be copied, reproduced or communicated to any third party without Zephyrs express consent in writing.
13. LICENCES AND CONSENTS
(a) If a licence or consent of any government or other authority is required for the acquisition, carriage or use of the Equipment by the Customer, the Customer shall obtain the licence or consent at its own expense and, if requested, produce evidence of it to Zephyr on demand. Failure to obtain any licence or consent does not entitle the Customer to withhold or delay payment of the Price. Any additional expenses or charges incurred by Zephyr resulting from such failure shall be paid by the Customer.
(b) Customer shall comply with all applicable export control law and regulation as well as the US Export Control applicable to the Equipment.
14. TELECOMMUNICATIONS EQUIPMENT
When the Equipment supplied by Zephyr is to be used in conjunction with British Telecom lines or apparatus then the following additional conditions shall apply:
(i) Any modifications to the Equipment by British Telecom will be carried out at the Customers expense; and
(ii) in no event shall Zephyr be liable for damage, loss of or injury to British Telecom equipment or personnel in connection with or arising out of or in connection with Customers fault.
(a) Either party may terminate this Agreement if the other
(i) commits a material breach of the Agreement; and
(ii) fails to remedy such a breach within 30 days of written notice being given to it by the non-affected party requiring a remedy.
(b) Zephyr may terminate this Agreement with immediate written notice if Customer:
(i) fails, without good reason, to pay on time; or
(ii) breaches or Zephyr reasonably suspects Customer has breached export control laws.
(c) Either party may terminate if the other becomes insolvent or bankrupt or is unable to pay debts as they fall due or if it ceases or threatens to cease to carry on its business, or makes any material change in its business, or if it suffers any analogous process under any foreign law. This provision shall not relieve Zephyr of an obligation to complete the delivery of any Equipment that has been ordered and fully paid for by a Customer prior to that Customer becoming insolvent or bankrupt.
(d) Following the delivery of a notice of termination by Zephyr, the full price of the Equipment less any sums already paid in respect of the Equipment shall immediately become due and payable by the Customer. In the case of Business Users only, Zephyr may at its option terminate this Agreement forthwith by giving written notice to the Business User or cancel or suspend despatch of any Equipment to a Business User. This provision shall not relieve Zephyr of an obligation to complete the delivery of any product that has been ordered and fully paid for by a Customer prior to the occurrence of any of the events set out in this Clause.
16. FORCE MAJEURE
Each party shall be entitled to cancel or suspend delivery of the Equipment or terminate this Agreement if the performance of either parties obligations under the Agreement is any way adversely affected by any cause whatsoever beyond the affected partys control including but not limited to the delays or defaults of suppliers or the default of any sub-contractor, war, strike, lock-out, trade disputes, flood, accident to premises or machinery (Force Majeure). Neither party shall be liable for any loss or damage arising directly or indirectly through or in connection with any such event of Force Majeure.
17. DATA PROTECTION
Personal data obtained by Zephyr from Customer shall be held & processed in accordance with all applicable laws, including, but not limited, to the Data Protection Act 1998. Zephyr may share such personal data with agents or subcontractors solely in the performance of services for Zephyr under this Agreement. Customer consents to the processing of Customers personal data in accordance with the above.
(a) Each party shall keep confidential all information relating to either party and/or any third party which is obtained by it as a result of it entering into or performing its obligations under this Agreement (including the terms of this Agreement) (the Confidential Information). Each party will only disclose Confidential Information to those of its employees, officers, approved sub-contractors and agents who (i) need to know it for the purpose of exercising or performing its rights and obligations under these terms and conditions; (ii) are informed of the confidential nature of the information divulged; and (iii) agree to act in compliance with these terms and conditions. Neither party will disclose that information to any third party (other than its employees, officers, approved sub-contractors, professional advisors and agents in accordance with this Clause), except for information that:
(i) is already in the public domain at the time of disclosure;
(ii) becomes publicly known through no fault of its own; or
(iii) is acquired by that party from a third party without any breach of any obligation of confidence.
(b) Notwithstanding any other provision set out herein, it shall not be a breach of this Agreement for either party to disclose any information given to it pursuant to a court order or a binding request from any regulator with jurisdiction or from any other third party with statutory power to require the disclosure of such information, provided that so far as it can the affected party gives all reasonable notice of such disclosure to the other party.
19. INTELLECTUAL PROPERTY
(a) Intellectual Property owned or licensed by Zephyr and/or its suppliers or licensors will be and will remain vested in Zephyr and/or its suppliers or licensors at all times.
No order under this Agreement may be modified or cancelled by the Business User without Zephyrs prior written consent. In the event that cancellation is agreed for whatever reason the Business User shall indemnify Zephyr against all costs, claims, loss and expenses incurred by Zephyr out of or in connection with such cancellation, including but no limited to, any consequential loss and loss of profits.
21. GENERAL PROVISIONS
(a) Governing Law And Jurisdiction
This Agreement shall be subject to and construed in accordance with the laws of England, but may be subject for Consumers to the jurisdiction of the English, Welsh, Northern Irish or Scottish courts at the claimants choosing. Business Users irrevocably submit to the jurisdiction of the English Courts. The uniform laws on international sales shall not apply.
(i) In respect of Consumers, Zephyr may at any time, without consent of the Consumer, assign all or any part of this Agreement or its rights, benefits and/or obligations arising pursuant to this Agreement to a competent third party, provided that the assignment does not negatively affect the provision of Equipment and the rights or remedies of the Consumer under the Agreement. Consumers shall be entitled to assign all or any part of this Agreement or its rights, benefits and/or obligations on prior written notice to Zephyr.
(ii) In respect of Business Users, Zephyr may at any time, without consent of the Business User, assign all or any part of this Agreement or its rights, benefits and/or obligations arising pursuant to this Agreement to a competent third party. Business Users shall not be entitled to assign all or any part of this Agreement or its rights, benefits and/or obligations.
Zephyr shall be entitled to carry out its obligations arising pursuant to this Agreement through any agents or sub-contractors appointed by it from time to time in its absolute discretion for that purpose.
(d) Rights etc cumulative and other matters
(i) The rights, powers, privileges and remedies provided in this Agreement are cumulative and are not exclusive of any rights, powers, privileges or remedies provided under this Agreement, by law or otherwise.
(ii) No failure to exercise nor any delay in exercising any right, power, privilege or remedy under this Agreement shall impair or operate as a waiver thereof in whole or in part.
(iii) No single or partial exercise of any right, power privilege or remedy under this Agreement shall prevent any further or other exercise thereof or the exercise of any other right, powers, privilege or remedy.
(e) Further assurance
At any time after the date hereof each of the parties shall, at the request and cost of the other party, execute or procure the execution of such documents and do or procure the doing of such acts and things as the party so requiring may reasonably require for the purpose of giving to the party so requiring the full benefit of all the provisions of this Agreement.
Any notice required or permitted to be given by either party to the other in relation to this Agreement shall be in writing addressed to that other party at the address stated on the Order Confirmation or such other address as may have been supplied by that party to the other, from time to time.
If any provision of this Agreement shall be held to be illegal, void, invalid or unenforceable by a court of competent jurisdiction under the laws of any jurisdiction, the legality, validity and enforceability of the reminder of this Agreement in that jurisdiction shall not be affected and the legality, validity and enforceability of this Agreement in any other jurisdiction shall not be affected.
(h) Relationship of the parties
(i) Nothing in this Agreement shall constitute, or be deemed to constitute, a partnership between the parties nor, except as expressly provided, shall it constitute, or be deemed to constitute, a party the agent of the other party for any purpose.
(ii) Subject to any express provisions to the contrary in this Agreement, the Customer shall have no right or authority to and shall not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on behalf of Zephyr or bind Zephyr in any way.
(i) Third Party Rights
No person who is not a party to this Agreement shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.