EMS terms and conditions for the UK
These Terms and Conditions are effective from 06/02/2007 until further notice.
1. What is this Document?
1.1 This document (the "Conditions" ) forms part of an agreement between EMS & you, the Customer.
1.2 The Conditions together with the (1) Service Descriptions &/or (2) Product Descriptions & (3) pricing applicable to the Products & Services that you wish to buy together form the whole of EMS's "Agreement" with Customer. The Agreement is a binding document & Customers should ensure that they understand it.
1.3 Some of the Conditions in this Agreement apply to all Customers; other parts are specific to Consumers or Business Users only.
1.4 We need to have an agreed written record of what we are supplying to ensure that no mistakes are made. Consequently we will not normally seek to make or agree variations to the Agreement orally & will seek to ensure that changes are documented in writing.
1.5 Our Agreement is intended to comply with all of your statutory rights as a Customer. However, in the event that any uncertainty arises, your statutory rights as a Customer will take priority over the Agreement.
2. Definitions
Business User: company, firm or person who purchases or agrees to purchase Products and/or Services from EMS other than for private use
Conditions: this document;
Consumer: someone who buys or agrees to buy Products and/or Services from EMS for private use
Customer: Consumers and Business Users collectively;
EMS: the company identified in your Order Confirmation and/or invoice;
Description: a document forming part of the Agreement which describes a Product or Service that Customers may purchase from EMS;
Indemnify: promise to be responsible for another's loss, damage, liability or penalty including promise to compensate for any loss, damage, liability or penalty which occurs;
IM: "Integration Material": third party product(s) specified or provided by Customer within the scope.
IPR: "Intellectual Property Rights" , patents, trade marks, registered designs, & applications for same, copyright, design rights, know-how, trade & business names & any other similar protected rights in any country;
Order: request by Customer to purchase Product or Services from EMS;
Order Confirmation: written acceptance by EMS of Customer's Order;
Price: the total charge for Products &/or Services payable by Customer to EMS;
Products: an individual good (including Software) as described in any current document published by EMS physically &/or on its internet site, or in any Order Confirmation & which Customer buys or agrees to buy from EMS.
Pro-Forma Customer: One in which the customer pays for the product in advance of dispatch
Services: service & support carried out by or for EMS in accordance with the Service Offering;
Service Offering(s): the Service options offered by EMS as described in any current document published by EMS physically &/or on its internet site, or in any Order Confirmation;
Software: computer operating systems, middleware, applications or other software that is manufactured or owned by, or licensed by, EMS;
Third Party Products: products not manufactured, assembled or authored by EMS that EMS sells.
Third Party Software: computer operating systems, middleware, applications or other software from a third party editor or licensor.
3. Quotations/Orders and Changes
3.1 EMS quotations are valid only if in writing & for 10 days after the quotation date, unless otherwise stated in the quotation.
3.2 All Orders for Products &/or Services shall be regarded as an offer by Customer to purchase Products &/or Services under the terms of this Agreement.
3.3 EMS accepts Customer's offer to purchase under this Agreement & makes a binding Agreement by issuing an Order Confirmation. Order confirmation is binding. It is recommended that Customers review the Order Confirmation & notify EMS within a reasonable period of time of any discrepancies that are noticed.
3.4 EMS reserves the right to make changes to ordered specifications but will identify any such changes in the Order Confirmation. EMS guarantees that any such changed Products will offer at least equivalent functionality & performance. EMS will not make any significant variations to Products or Services without Customer's prior agreement &, except as provided for above, will manufacture & deliver Product in accordance with the Order Confirmation.
4. Price and Payment
All Customers:
4.1 The Price that Customers have to pay will be shown on EMS's Order Confirmation and invoices.
Consumers and Pro Forma Customers:
4.2 Payment shall be made before supply of Product or Service. EMS may suspend delivery of Product or Service until full payment is received. If EMS has delivered Product &/or Services & the Product &/or Services remain neither paid for nor made available for collection when reasonably demanded then EMS may recover the outstanding payment &/or Product & the recovery costs are to be paid by the Customer.
BusinessCustomers:
4.3 If agreed in advance in writing, Customers may pay within 30 days of the date of invoice. EMS may suspend delivery of Product or Service until full payment is received. If full payment is not received EMS will be entitled to charge interest on the amount outstanding at the rate of 3% per annum above the London Inter Bank Offer Rate ("LIBOR"). If EMS must recover the outstanding payment &/or Product, recovery costs are to be paid by the customer.
4.4 For Orders to be delivered in installments over a period of time, EMS may adjust prices due to changes to exchange rates, duties, insurance, freight, handling & purchase costs.
5. Delivery
All Customers:
5.1 The delivery date specified in the Order Confirmation is an estimate.
5.2 The place of delivery is as stated in the Order Confirmation.
5.3 For practical reasons, Products may be delivered by installments, which shall be communicated to Customer.
Consumers:
5.4 Delivery will take place less than 30 days after the date of Order unless specifically otherwise agreed at the time of making the Order.
5.5 If the estimated delivery date cannot be met and the revised delivery date will exceed 30 days from the original date of order then Customer will be contacted & advised of a proposed new date for delivery. If Customer 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 Customer may cancel the order without charge & obtain a full refund.
5.6 Where Product is delivered in installments, then, unless expressly otherwise agreed at the time of placing the Order, these installments will be delivered within 30 days of placing the Order.
6. Passing of Ownership & Risk
6.1 Ownership of Products passes to Customer on the later of receipt by EMS of full payment or delivery to Customer of Product. EMS may recover any Products supplied at any time prior to ownership passing if Customer is in breach of these Conditions.
6.2 Risk meaning: a: (for Consumers only, within the period of time specified in clause 7.3), a duty to take reasonable care of Product received and b: (after the period specified in Clause 7.3 for Customers and in all circumstances for Business Users) responsibility for damage caused to or by use, handling or storage of the Product, passes to Customer on delivery of Products to Customer or to their representative.
7. Acceptance of Products on Delivery, "Cooling Off" & rights of return and cancellation
7.1 Customer should notify EMS promptly: following delivery of any missing, incorrectly delivered, incorrect specification (subject to Clauses 3.3 & 3.4), or otherwise not as ordered Products or Products which are either in damaged packaging or are visibly damaged; following discovery of any non-visible damage or defect in Product supplied.
7.2 Where Product can be returned to EMS by Customer under the terms of this Agreement, it should be made available for collection at a time which is mutually convenient insofar as possible. Customers should act reasonably in complying with a request by EMS to collect Product at a particular time.
Consumers:
7.3 Consumers may cancel their Orders for any reason until, but no later than:
7.3.1 the end of the 7th "working day" (days other than weekend days & public holidays) after the day of receipt of the Product &/or of the Service Order Confirmation (as applicable); or
7.3.2 the end of the 7th working day after the date when all such information required by law is supplied.
7.4 Consumers' right to cancel Software that is supplied on CD, DVD or other similar storage devices is also lost if the Software is unwrapped.
7.5 On cancellation of Products Consumer is obliged to return the goods to EMS in their original condition, undamaged & 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. EMS shall take action against Consumer for goods returned which have been made unfit for resale or damaged whilst in the possession of Consumer.
7.6 The provisions of Clauses 7.3, 7.4 & 7.5 do not apply to Product or Software that is damaged or defective.
7.7 On cancellation of the Order by a Consumer EMS will refund the price paid, less the direct cost of recovering the goods (when applicable), within a period of 30 days from date of cancellation.
Business Users:
7.8 Notwithstanding anything herein to the contrary (including without limitation Clauses 3.3 & 3.4), Business Users may only reject Product for material non-conformity with the Product Description by providing written notice to EMS within 10 days after delivery or otherwise shall be deemed to have accepted the Products].
8. Statutory Rights, Warranties, Repairs, Replacements & Provision of Services
8.1 EMS will fulfill its legal obligations to repair &/or replace Products. These obligations are dependent upon proper use of Products & do not cover any parts of Products which have been modified or repaired without EMS's prior written consent. EMS may ask third party Software licensors to fulfill EMS's and/or licensor's legal obligations relating to the supply of that licensor's software.
8.2 EMS's obligations do not apply to the consumable components of consumable items or if a defect is caused by an external cause such as fair wear & tear, software or hardware loaded onto or connected to Product by Customer where this software or hardware has not been supplied by EMS, an accident, hazard, humidity control, electrical stress or other environmental conditions not commonly found in a safe home or office environment.
8.3 Products are delivered with a maximum one-year warranty unless a shorter period is stated in the applicable Service Offering. This warranty is not upgradeable.
8.5 EMS's obligations under its Service Offerings are as stated in the Descriptions for those Service Offerings. EMS will use all reasonable endeavors to meet response times estimated in the Service Offerings, but actual timings may vary depending, among other factors, on the remoteness or accessibility of Customer's location, weather conditions & availability of components. EMS will comply with all other terms of its Service Offerings. Notwithstanding the above, the following are excluded from Service unless stated otherwise in the Service Offering: local working hours, relocation, removal of non-EMS supplied hardware or software, preventative maintenance, repairs to Products that are functioning within industry standards including without limitation defective pixels on monitors, transfer of data or Software and viruses. Customer is responsible for removal of non-EMS supplied products.
8.6 EMS does not provide EMS Service Offerings for Third Party manufactured Software or Products but will pass to Customers, to the extent that it is permitted to do so, the benefit of any warranty or guarantee given by the manufacturer or supplier of Third Party Products.
8.7 Service may be provided via telephone (at the normal national rate) or Internet where appropriate. elephone calls may be recorded for training purposes. Customer must provide EMS with all reasonable courtesy, information & cooperation to enable EMS to deliver the Services & shall be responsible for all telephone & postal charges in contacting EMS.
8.8 EMS makes repairs as required at law &, if applicable, under Service Offerings by using components which are new or equivalent to new in accordance with industry standards and practice. Products will be repaired using parts which will work for the balance of the statutory entitlement period and/or the Service Offering period relating to the Product into which they are installed. If the part is installed into a Product for which this statutory entitlement period and/or the Service Offering Period (as applicable) has less than 90 days to run at the date of installation then the part itself will continue to work for at least 90 days after the date upon which it was installed.
8.9 EMS owns any Product or parts that are removed during repair. EMS may require Customer to return removed parts to EMS for reconditioning, analysis or for environmental reasons.
8.10 If Customer does not return removed parts EMS then may charge a fee of which Customer will be informed prior to charge. The fee will reflect the cost incurred by EMS in retrieving the part(s), &/or the cost of procuring another component to recondition &/or arising from failure to comply with environmental obligations as a result of the Customer's failure to return the Product or part.
8.11 The charge referred to in 8.9 and 8.10 above will not apply to Customers returning defective parts which have been replaced in accordance with statutory rights.
8.12 Products, Software & Services sold will correspond to their Description (except as stated in Term 3.4 above).
Consumers:
8.13 Products sold will be suitable for general use in a domestic, non commercial, non research environment in a manner which is consistent with the specification, functionality & service standards described in the Product's Description. Fitness for use in any other manner or environment must be explicitly and clearly agreed (preferably in writing) with EMS prior to purchase.
8.14 EMS will repair, or in the event that repair does not occur, replace Product which is defective within a reasonable period & with reasonable care & skill. This may only be varied to the extent reasonably agreed with Consumer.
Business Users:
8.15 Business Users must satisfy themselves as to the suitability of the Description for their needs. EMS does not warrant fitness for any particular purpose. Fitness for use in any particular manner or environment must be agreed in writing with EMS prior to purchase.
8.16 Business Users are not automatically entitled to repair or replacement other than as described in a Service Description or as otherwise agreed by EMS. EMS shall have no liability or obligation for defects in Products or failure to remedy defects except as expressly provided under this Agreement.
8.17 Except as expressly provided herein, no warranty, express or implied, as to the condition, quality, performance, merchantability, or durability of Products is given or assumed by EMS & all such warranties are hereby excluded.
9. Interfaces/Bespoke Development
9.1 Interfaces/Bespoke Development may be provided at the discretion of EMS in accordance with User’s instructions & technical specifications & subject to current EMS requirements. User will specify & provide INFORMATION MEMORANDUM or EMS may obtain INFORMATION MEMORANDUM at Customer's instruction. EMS will indicate acceptance &/or validation of INFORMATION MEMORANDUM & then will integrate INFORMATION MEMORANDUM into Product(s), producing a Product. EMS may install under Customer's instruction or under EMS technical advice, if agreed in writing. EMS will not carry out work if not technically feasible. EMS shall not warrant the functionality or provide support for INFORMATION MEMORANDUM in any case.
10. Frustration/Circumstances beyond the Parties' control ("Force Majeure")
Customers:
10.1 Neither party is responsible for non-performance in case of circumstances beyond its reasonable control ("Force Majeure") including without limitation, strikes by non EMS employees, terrorist acts, war, exchange fluctuations, governmental or regulatory actions, natural disasters, severe weather, unforeseeable transport or production problems affecting companies that supply EMS.
10.2 If a Force Majeure event occurs & EMS cannot deliver within the period set out in the Order Confirmation, EMS will & Customer may act in accordance with the terms of clause 5.5 above.
10.3 If the Force Majeure event lasts longer than 60 days then EMS shall have the right to terminate the Agreement by providing notice in writing to Customer & returning all sums paid by Customer under the Agreement. No compensation to Customer will then be due in these circumstances.
11. Liability
All Customers:
11.1 EMS accepts liability for any loss or damage to private property, death or personal injury caused by the Products & Services supplied, the negligence or deliberate misconduct of EMS, or any employees, agents or subcontractors acting on EMS's behalf, provided, however, that in all cases, except for death or personal injury (where there shall be no limit on liability), EMS's liability for losses suffered by Customer will be assessed in accordance with the applicable terms of this Clause 11.
Consumers:
11.2 EMS shall accept liability for reasonably foreseeable losses arising as a direct consequence of breach by EMS of its statutory duty. However EMS shall not be liable in certain circumstances for example where the causes or potential causes of the loss:
11.2.1 were not reasonably foreseeable by both parties; &/or
11.2.2 were known by Customer to the exclusion of EMS at the time that the Agreement was entered into; &/or
11.2.3 arose from the use of the Product &/or Services for purposes other than those contemplated in Clause 8.13.
11.2.4 were reasonably foreseeable & preventable by Customer such as those arising from, but not limited to:
11.2.4.1 data or information loss caused by failing to keep back up copies of important data on separate media; or
11.2.4.2 virus damage; or
11.2.4.3 user inflicted problems such as those caused by failure to read &/or follow user instructions provided in writing or orally by a EMS technician.
11.3 In claiming against EMS for any such losses Customer is expected to have acted reasonably, for example, with regard to:
11.3.1 how the losses were accrued - including steps taken to mitigate or to avoid losses occurring; &
11.3.2 taking reasonable precautions to avoid loss (such as contacting EMS promptly upon becoming aware of an issue).
Business Users:
11.4 The provisions of Clauses 11.2 & 11.3 will also apply Business Users as if the word "Consumer" were replaced by the words "Business User" except that:
11.4.1 in all cases except for death or personal injury (where there will be no limit on liability) EMS's liability for losses will not exceed a sum equal to 125% of the Price; and
11.4.2 EMS will not be liable for:
11.4.2.1 use not consistent with clause [8.15 (rather than clause 8.13)];
11.4.2.2 loss resulting from any defect or deficiency in Products or Services which EMS shall have remedied within a reasonable period &/or consistently with the terms of a Service Description;
11.4.2.3 consequential losses such as loss of business profits, salary, revenue, data or anticipated savings.
12. Intellectual Property & Software
All Customers:
12.1 EMS Indemnifies Customer from all costs & liabilities arising from any claim that use of Product or Software infringes any third party IPR. EMS may recall & exchange or modify Product or Software or refund Customer (minus depreciation in this event) or require Customer to install replacement or altered Software from a CD, DVD or an internet download.
12.2 EMS retains all EMS-owned IPR in Product. Customer must notify EMS immediately of any infringing or unauthorised use of Product or IPR in it.
12.3 EMS does not Indemnify Customer for:
12.3.1 Third Party Hardware or Third Party Software;
12.3.2 unauthorised modification or use of the Products or Software;
12.3.3 any claim caused by the use of Products or Software in conjunction with anything not supplied by EMS. Customer must comply with the license conditions for any Software supplied.
12.4 Customer Indemnifies EMS for any claim which arises due to Customer's own actions of which EMS had no knowledge or could not reasonably be expected to have had knowledge.
12.5 EMS is allowed to litigate, negotiate & settle claims & Customer must provide reasonable assistance if requested to assist EMS if litigation is directly related to Products supplied to Customer.
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12.6 Business Users additionally Indemnify EMS, without limit, for any claim related to IM or IPR specified or owned by Business User & integrated into Product
13. Export Control
13.1 Customer is advised that Product, which may include technology & software, is subject to EU and US export control laws & laws of the country where it is delivered or used. Under these laws, Product may not be sold, leased or transferred to restricted end-users or countries or for restricted end-uses. Customer agrees to abide by these laws.
14. Data Protection
14.1 Personal data obtained by EMS from Customer shall be held & processed in accordance with all applicable laws and consistently with EMS's Privacy Policy. EMS may share such personal data with other EMS entities, agents, or subcontractors performing services for EMS. EMS may also transfer personal data to affiliated companies or agents or subcontractors which may be outside the European Economic Area (EEA), in which case EMS will ensure adequate protection to safeguard personal data. For a copy of EMS's Privacy Policy, please visit EMS's website or contact: E-Measurement Solutions Limited Unit 16, Llys Y Fedwen, Parc Menai, Bangor, Gwynedd, North Wales, LL57 4BN, United Kingdom. Customer consents to the processing of Customer's personal data in accordance with the above.
15. Confidentiality
15.1 Each party must treat all information received from the other which appears to be confidential as it would treat its own confidential information generally, but at least, with no less than a reasonable degree of care.
16. Termination
16.1 Either party may terminate this Agreement if the other:
16.1.1 commits a material or persistent breach of these Conditions; &
16.1.2 fails to remedy such breach within 30 days of written notice being given to it by the other part requiring a remedy.
16.2 EMS may terminate this Agreement with immediate written notice if Customer:
16.2.1 fails, without good reason, to pay on time; or
16.2.2 breaches or EMS reasonably suspects Customer has breached export control laws.
16.3 Either party may terminate if the other becomes insolvent or bankrupt or is unable to pay debts as they fall due. This provision shall not relieve EMS of an obligation to complete the delivery of any Product that has been ordered and fully paid for by a Customer prior to that Customer becoming insolvent or bankrupt.
16.4 The following clauses of these Conditions shall survive any termination or expiration of these Conditions & shall continue to bind the parties & their permitted successors & assigns: clauses 4.2, 4.3, 4.4, 6, 7, 8.9, 8.10, 11, 12, 13, 14, 15 & 17.
17. Law & Jurisdiction
17.1 This Agreement is to be interpreted in accordance with English Law but may be subject for Customers to the jurisdiction of the English, Welsh, Northern Irish or Scottish courts at the claimant's choice. .
17.2 If any parts of these Conditions are found to be unenforceable by a court, the rest are unaffected. All notices must be in writing & sent to a legal officer of each party, at the address provided on the invoice.
18. Assignment & Subcontracting
Consumers:
18.1 EMS may assign, subcontract or transfer its obligations or rights to a competent third party in whole or in part & provided that the assignment, subcontract or transfer occurs without negatively affecting:
18.1.1 the provision of the Products &/or Services &
18.1.2 rights or remedies of the Customer under the Agreement.
18.2 EMS requires Customer to inform it in advance of any assignment, subcontract or transfer on the Customer's part.
18.3 EMS may assign, subcontract or transfer its obligations or rights to a competent third party in whole or in part. Business Users may do so only with EMS's written consent
19. Miscellaneous
19.1 Customer can find all EMS policies, Product and Service Offering details and notices at:
www.e-tape.co.uk
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