TERMS AND CONDITIONS OF SALE

PROVISION OF GOODS (INCLUDING DIGITAL CONTENT) AND SERVICES – ON-PREMISES SALES

BACKGROUND

These Terms and Conditions explain the basis under which the Seller will provide the Goods and Services described at clause 2 for the price described at clause 4 to the Buyer.

The Buyer should read these Terms and Conditions and the accompanying Order Form very carefully to make sure that he understands exactly what is being agreed and that they contain everything that the Buyer wants.

1. DEFINITIONS

In these Terms and Conditions and the Order Form, the following words and phrases have the following meanings:
‘Agreement’the Terms and Conditions and Order Form taken together
‘Buyer’the person or company buying the Goods and Services as named in the Order Form
‘Confirmation of Acceptance’The Seller’s confirmation that the Buyer’s order has been accepted and a binding agreement has been formed for the supply of the Goods and Services
‘Digital Content’data which are produced and supplied in digital form
‘Goods and Services’what the Buyer is purchasing as described at clause 2 of the Terms and Conditions
‘Order Form’the form headed ‘Order Form’ containing the particulars of the Goods and Services and forming part of this Agreement
‘Parties’the Buyer and the Seller
‘Party’either one of the Buyer or the Seller
‘Seller’the person or company selling the Goods and Services as named in the Order Form
‘Terms and Conditions’this document detailing the rights and responsibilities of the Parties

2. GOODS AND SERVICES

2.1 The Services which are the subject of this Agreement are described more particularly in the Order Form and confirmed in the Confirmation of Acceptance. The Seller is under a legal duty to supply the Services using reasonable care and skill.

2.2 The Services will be performed insofar as reasonably practicable in accordance with the description in the Order Form, at such time or times as the Seller shall decide. Any times, dates or periods provided in the Agreement for provision of the Services are estimates only. The Seller will make reasonable efforts to comply with any such time estimates, and will perform the Services within a reasonable time. However, time is not of the essence in respect of the Seller’s performance of the Services.

2.3 The Goods which include digital content and are the subject of this Agreement are described more particularly in the Order Form and confirmed in the Confirmation of Acceptance. The Seller is under a legal duty to supply Goods that are in conformity with the Agreement. The Goods must be:

2.3.1 of satisfactory quality;

2.3.2 fit for purpose; and

2.3.3 as described in this Agreement.

2.4 The Seller may modify or update, or require the Buyer or a third party to modify or update any Digital Content component of the Goods, provided that the Digital Content shall always match the description provided before purchase by the Buyer.

3. ORDERING

3.1 By ordering Goods and Services from the Seller, the Buyer makes an offer to buy the Goods and Services for the price stated in the Order Form. There is no binding contract between the Parties at the time when the order is made.

3.2 The Seller will contact the Buyer by email to confirm the order. This Confirmation of Acceptance is the Seller’s acceptance of the order made by the Buyer using the Order Form. When the Confirmation of Acceptance is received there will be a binding contract between the Parties in the terms of this Agreement. The binding contract will only be for the Goods and Services that are included in the Confirmation of Acceptance. It may not cover all the Goods the Buyer ordered, for example if stock is unavailable.

4. PRICE AND PAYMENT

4.1 Where a fixed price has been agreed for the Goods and Services in advance, the total price of the Goods and Services at the time the Buyer placed the order, including tax and VAT where applicable, is detailed in the Order Form. VAT will be charged at the rate prevailing at the time that payment is due. If there is a delivery charge in addition to the price, that can also be found in the Order Form.

4.2 Where a fixed price has been given, including the cost of any Goods, the Seller’s prices may change between the date of the order and the date of the Seller’s Confirmation of Acceptance in accordance with clause 3.2 above. Reasons for a price change include, but are not limited to, a change in the amount that the Seller is charged by his supplier(s) or a change in the VAT rate. What happens when the price changes depends on whether the new price is lower or higher than the price stated on the Order Form:

4.2.1 if the new price is lower than that listed on the Order Form, the Seller will charge the lower price and dispatch the Goods;

4.2.2 if the new price is higher than that listed on the Order Form, the Seller will either cancel the Agreement or contact the Buyer to confirm whether he would prefer to cancel the Agreement or pay the higher price for the Goods.

4.3 Where an estimate of the total price for any Goods and Services has been provided by the Seller in the Order Form, the same is not a binding indication of how much the Seller will charge. The final price for the Goods and Services may be higher or lower than the estimate. Circumstances where the price may be different from an estimate include, but are not limited to:

4.3.1 the Services taking longer to complete than could have reasonably been anticipated;

4.3.2 the Buyer making any changes to the Services after this Agreement is entered into; or

4.3.3 changes to the prices charged by any of the Seller’s suppliers.

4.4 Payment of the price must be made by the Buyer in accordance with the arrangements stated on the Order Form.

4.5 Without prejudice to any other legal right or remedy:

4.5.1 if any payment required under the Agreement is not received by the Seller by the due date, the Seller can charge interest on the outstanding sum or sums. Interest will be charged at 0.01% per annum above the Bank of England base rate, such interest to accrue daily from the due date until payment is made;

4.5.2 if the amounts not paid to the Seller when due total 10% or more of the total value of the Services, the Seller is entitled to suspend the performance of any remaining Services until such time as the outstanding payments are made; and

4.5.3 the Buyer will not refuse to pay any amount which is owed to the Seller where there is only a minor or inconsequential defect or error in the performance of the Services.

5. DELIVERY OF GOODS

5.1 If applicable, the Seller will arrange for the Goods to be delivered to the Buyer. The delivery charge is stated on the Order Form. Delivery will be attempted to the address provided by the Buyer on the Order Form.

5.2 Dates or times for the delivery of the Goods given by the Seller are estimates and cannot be relied on as definitive. The Goods will be delivered within an estimated 1 days from the date of the Seller’s Confirmation of Acceptance in accordance with clause 3.2 above. Delivery for the purposes of this clause includes attempted delivery at the delivery address in the Order Form.

5.3 If the Buyer or anyone nominated by the Buyer to take delivery of the Goods fails to take delivery when it is attempted, the Seller may charge the Buyer any costs incurred for storage and redelivery as a result.

5.4 The Goods may be delivered directly from the manufacturer or the Seller’s supplier and may be delivered in a number of instalments.

5.5 The Seller delivers worldwide.

6. PASSING OF RISK AND OWNERSHIP

6.1 The Goods will be at the Seller’s risk until delivered either to the Buyer or otherwise at the Buyer’s direction.

6.2 The ownership of the Goods shall not pass to the Buyer until the Seller has sent the Confirmation of Acceptance to the Buyer under clause 3.2 and has received payment in full for them, regardless of whether the Goods have been delivered to the Buyer at that date.

6.3 For the purposes of clause 6 if the Goods include Digital Content which is to be downloaded by the Buyer, the delivery of the Digital Content is effected at the time when it reaches the Buyer’s device.

7. BUYER’S RESPONSIBILITIES

7.1 The Buyer shall co-operate fully with the Seller in the performance of this Agreement. Such co-operation shall include, but is not limited to:

7.1.1 responding promptly and properly to any correspondence, request, query or communication from or on behalf of the Seller;

7.1.2 promptly providing any information, documentation, instruction, support or other assistance as the Seller reasonably requires;

7.1.3 promptly making any space, resources or facilities available as may reasonably be required by the Seller; and

7.1.4 paying any and all sums due under this Agreement on time.

7.2 If the Buyer does not comply fully and properly with his responsibilities under clause 7.1, the Seller may, without prejudice to his legal rights:

7.2.1 charge the Buyer for any costs or expenses thereby reasonably incurred; or

7.2.2 suspend the provision of the Services until such time as the Buyer complies so far as reasonably practicable with his responsibilities under this Agreement.

8. RETURNS

8.1 If the Goods are not of satisfactory quality, are unfit for purpose or are not as described in this Agreement, the Seller will either refund the Buyer in exchange for the return of the Goods, repair the Goods or replace them. It is the Seller’s choice as to which of these actions to take.

8.2 To trigger the Buyer’s right to a refund, repair or replacement of the Goods under clause 8:

8.2.1 the Buyer must notify the Seller of the problem with the Goods in writing using the contact details in clause 22 below within 7 calendar days of receiving the Goods;

8.2.2 the Buyer must return the Goods to the Seller at the Seller’s expense; and

8.2.3 the Seller must be satisfied that the Goods are not of satisfactory quality, are unfit for purpose or are not as described in this Agreement. The Seller will require an opportunity to examine the Goods after their return to determine this.

8.3 The Buyer will be deemed to have accepted the Goods once her has either communicated his acceptance of the Goods to the Seller, or had a reasonable opportunity to inspect the Goods whether he has in fact inspected them or not. If the Goods form a Commercial Unit, the deemed acceptance by the Buyer of any part of that Commercial Unit shall be deemed acceptance by the Buyer of the whole of the Commercial Unit.

8.4 The Buyer cannot rely on a problem with the Goods as a reason for returning them if, before entering into this Agreement, the Buyer was expressly informed of the problem, inspected a sample of the Goods or used a trial version of any Digital Content from which the problem was obvious.

8.5 The Buyer is not entitled to only reject part of the Goods pursuant to clauses 8.1 and 8.2 if the Goods form a Commercial Unit. In these circumstances the Buyer must reject all or none of the Goods.

8.6 If the Goods are perishable, they are not returnable after the date by which the Goods can reasonably be expected to perish.

9. SUB-CONTRACTORS

9.1 The Seller can, at its absolute discretion, choose to retain or instruct sub-contractors to carry out the Services in whole or part.

10. AGENCY OR PARTNERSHIP

10.1 Nothing in this Agreement is intended to or does imply any partnership, fiduciary relationship, joint venture, agency or any other relationship between the Parties, save as provided for in the Agreement.

11. LIABILITY AND INDEMNITY

11.1 Nothing in this Agreement seeks to limit the liability of the Seller for fraudulent acts or omissions, death or personal injury caused under or in connection with this Agreement, whether arising in contract, negligence, tort, breach of statutory duty or otherwise.

11.2 Neither Party shall be liable to the other whether in contract, negligence, tort, breach of statutory duty or otherwise for any loss or damage sustained by the other Party indirectly or consequentially and including but not limited to economic loss or loss of profits, goodwill or business in general.

11.3 Subject to clauses 11.1 and 11.2, the Seller’s total liability to the Buyer will not, in any circumstances, exceed the total amount of the price payable by the Buyer.

11.4 In the event that the Buyer or his servants or agents breach the terms of the Agreement, or are negligent in their actions, the Buyer will, to the fullest extent permitted by law, indemnify the Seller against any liability, loss, claim, damage, expense suffered by the Seller as a result.

12. PROPERTY AND INTELLECTUAL PROPERTY

12.1 Any property or intellectual property rights in any material owned by the Seller shall belong to the Seller and the Buyer shall not cause or permit anything to endanger those rights or title, or permit, assist or encourage others to do so.

12.2 Any property or intellectual property rights in any material owned by the Buyer shall belong to the Buyer and the Seller shall not cause or permit anything to endanger those rights or title, or permit, assist or encourage others to do so.

12.3 Clauses 12.1 and 12.2 are subject to the right of the Parties to use any such material so far as is reasonably required to carry out the terms of the Agreement.

12.4 The Buyer warrants that any material, whether comprising documents, data, records or any other materials, that it provides to the Seller under the terms of this Agreement does not infringe the intellectual property rights of any non-Party. The Buyer agrees to indemnify the Seller against any loss, damage, cost, expense or claim of any kind that may arise as a result of such an infringement.

13. CONFIDENTIALITY

13.1 The Parties will use their best endeavours to keep confidential any confidential information relating to the other Party that is provided or otherwise accessed in the performance of this Agreement. Neither Party shall disclose any confidential information without the consent of the other Party, except in order to comply with the order of a court of competent jurisdiction or as required in connection with legal proceedings relating to or arising out of this Agreement.

13.2 The Parties’ obligations under clause 13.1 shall continue after the termination or completion of this Agreement unless or until the information concerned becomes public knowledge or is otherwise in the public domain through no fault of the Party bound to keep its confidentiality under this clause.

14. AMENDMENT AND ASSIGNMENT OF THIS AGREEMENT

14.1 This Agreement can only be amended by the agreement of the Parties in writing with signatures on behalf of both.

14.2 The Seller is permitted to assign or transfer the Agreement or any rights or obligations under it, or subcontract the same for performance to a third party. The Buyer is not permitted to assign or transfer the Agreement or his rights or obligations under it without the prior written permission of the Seller.

15. SEVERANCE

15.1 If any of the provisions of this Agreement are unlawful, invalid or otherwise unenforceable, such provisions shall be severed from the remainder of the Agreement. The remainder of the Agreement will remain valid and enforceable notwithstanding any such severance.

16. THIRD PARTIES

16.1 For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not confer any rights on any person who is not a Party. Any person who is not a Party does not have the right to enforce any provision of this Agreement.

17. CIRCUMSTANCES BEYOND THE CONTROL OF THE PARTIES

17.1 The Seller shall not be liable for any delay or failure to perform any term or part of the Agreement due to circumstances beyond the reasonable control of the Seller. Such circumstances include – but are not limited to – industrial action, lock out, trade dispute, power failure, internet outage, fire, natural disaster or outbreak of war. As soon as is reasonably possible after the discovery of such circumstances, the Seller must notify the Buyer in writing of any anticipated or existing delay or failure in performance.

17.2 If the circumstances referred to in clause 17.1 above continue for a period of longer than 7 days, the Seller can terminate the Agreement by giving 7 days’ notice in writing to the Buyer. All money owing under the Agreement before the circumstances arose shall be paid immediately.

18. ENTIRE AGREEMENT

18.1 These Terms and Conditions and the Order Form taken together are the entire agreement between the Seller and the Buyer and supersede any and all prior terms, conditions, warranties or representations to the fullest extent permitted by law.

19. WAIVER

19.1 Any failure or delay by the Seller in using rights or powers provided by this Agreement shall not constitute a waiver of the whole or any part of the Agreement. The partial or sole use of any rights or powers provided by this Agreement shall not prevent any additional use of the same rights or powers. The rights, powers and remedies in this Agreement are additional to the rights of the Parties provided by law.

20. GOVERNING LAW AND JURISDICTION

20.1 These Terms and Conditions shall be governed by and construed in accordance with English law and the courts of England and Wales will have exclusive jurisdiction in relation to them.

21. COMPLAINTS

21.1 In the event of a complaint of any nature the Seller can be contacted using the details below.

22. CONTACT DETAILS

22.1 The Seller is Coded Sky Design of 2087 Placita De Vida, Santa Fe, 87505 and can be contacted at Tel: 571-218-7840, Fax: none or results@codedskydesign.com. In circumstances where the Buyer is required to contact the Seller in writing, he can write to the Seller at results@codedskydesign.com.