Interpretation
1.1 In these conditions:
“Company” means Parallax Digital Technologies Ltd Registered Number 10314407.
“Conditions” means the standard terms and conditions of business set out in this document and (unless the
context otherwise requires) includes any special terms and conditions agreed in writing between the Company
and the Customer.
“Consumer” means an individual who is buying the Goods from the Company, wholly or mainly for personal
use (and not for use in connection with their trade, business, craft, or profession).
“Contract” means the contract for the purchase and/or sale and/or hire of the Goods and/or the supply of
Services.
“Customer” means the person who accepts a quotation of the Company for the sale or hire of the Goods and/or Services or whose Order for the Goods and/or Services is accepted by the Company.
“Customer’s Agent” means the person(s) acting on behalf of the Customer from time to time (including the
Customer’s client, sub-contractors, or representatives).
“Ethical Trading Guidelines” means the Ethical Trading Initiative Base Code.
“Goods” means the goods (including any instalment of the goods or any parts for them) which the Company is to supply in accordance with these Conditions being any goods which the Company may supply to the Customer from time to time in accordance with these Conditions including Hire Goods.
“Hire Goods” means any machine, article, and/or device together with any accessories specified in a Contract which are hired to the Customer.
“Order” means the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s
Purchase Order Form, or the Customer’s written acceptance of the Company’s quotation.
“Sale Confirmation” means the document issued by the Company which stipulates and confirms the Order for the Goods and/or Services and the price payable.
“Services” means the installation services carried out by the Company in respect of the Goods in accordance
with these Conditions.
“Writing” includes e-mail, facsimile transmission and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience sake and shall not affect their interpretation.
Basis of the Sale
2.1 The Company shall sell or hire to the Customer and the Customer shall purchase or hire the Goods and/or Services in accordance with any written quotation of the Company which is accepted by the Customer, or any written Order of the Customer, which is accepted by the Company, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such Order is made or purported to be made, by the Customer.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorized representatives of the Customer and the Company.
2.3 If the Customer is a Consumer, the Consumer may only purchase Goods from the Company if the Consumer is at least 18 years old at the time of purchase.
Orders and Specification
3.1 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Customer, and for giving the Company any necessary information relating to the Goods and/or Services within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.2 The quantity, quality, and description of and any specification for the Goods and/or Services shall be those set out in the Company’s quotation (if accepted by the Customer) or the Customer’s Order (if accepted by the Company).
3.3 Any samples, drawings, images, descriptive matter, advertising or other details about the Goods supplied by the Company, its employees, in any brochure, catalogue, or other media or on our website are for information purposes only and for the purpose of giving an approximate idea of the Goods only. They shall not form part of the Contract, or have any contractual force unless expressly set out in the Order. The Goods may differ slightly from those images and in particular, colours may vary from those displayed on the website or in any brochure, catalogue or other image.
3.4 The Company reserves the right to make any changes in the specification of the Goods and/or Services which are required, to conform to any applicable statutory or EU requirements.
3.5 Consumer rights of return and refund:
3.5.1 This clause 3.5 shall only apply to Consumers Sales.
3.5.2 Consumers have a legal right to cancel the Contract during the period set out below in clause
3.5.4. This means that if during the relevant period the Consumer changes their mind or for any other reason decides they do not want to keep the Goods, the Consumer is entitled to notify the Company of their decision to cancel the Contract, within 14 days of receiving the goods, and receive a refund. The customer is responsible for safely returning the items to the Company, and refunds will be issued within 14 days of the Company receiving the returned goods. Advice about a Consumer’s legal right to cancel the Contract is available from the Citizens’ Advice Bureau or Trading Standards office.
3.5.3 The cancellation right at clause 3.5.2 does not apply in the case of any made-to-measure, bought to order, or custom-made products or software which have a security seal that has either been opened or unsealed by the Consumer, and these items may only be returned in the event that they are defective.
3.5.4 A Consumer’s legal right to cancel the Contract starts from the date of the Order Confirmation or Verbal Order Confirmation (as the case may be), which is when the Contract between the Company and the Consumer is formed. If the Goods have already been delivered to the Consumer, the Consumer shall have a period of 14 Days in which to cancel, starting from the day after the day the Consumer receives the Goods.
3.5.5 To cancel a Contract, a Consumer must contact the Company in writing by sending an e-mail to sales@parallaxdigital.co.uk or by sending a letter to the Company atat Parallax Digital Technologies Ltd, Unit 19 Endeavour Park, Baker Road, Nelson Park West, Cramlington, Northumberland, NE23 1XA . If the Consumer sends the cancellation notice to the Company by e-mail or by post, then the cancellation shall be effective from the date the Consumer sent the e-mail or posted the letter.
3.5.6 The Consumer shall receive a full refund of the price paid to the Company for the Goods and any applicable delivery charges the Consumer paid for. The Company will process the refund due to the Consumer as soon as possible and, in any case, within 14 days of the day on which the returned items were delivered to the Company by the courier or postal agent used to return the goods. If the Consumer returned the Goods to the Company because they were faulty or mis-described, please see clause 3.5.7.
3.5.7 If the Consumer has returned the Goods to the Company under this clause 3.5 because they are either faulty or mis-described, the Company will refund the price of the defective Goods in full, any applicable delivery charges, and any reasonable costs incurred by the Consumer in returning the item to the Company.
3.5.8 The Company shall refund the Consumer to the same account or bank card as the Consumer used for the payment to the Company for the Goods.
3.5.9 If the Goods were delivered to the Consumer:
(a) the Consumer must return the Goods to the Company as soon as reasonably practicable;
(b) unless the Goods are faulty or not as described (in this case, see clause 3.5.7), the Consumer
will be responsible for the cost of returning the Goods to the Company. The Company charge
for collection of Goods and shall confirm the collection charge upon the Consumer’s request
for collection;
(c) the Consumer has a legal obligation to keep the Goods in their possession and to take
reasonable care of the Goods while they are in their possession; and
(d) a Consumer will always have legal rights in relation to Goods that are faulty or not as
described. These legal rights are not affected by the returns policy in this clause 3.5 or these
terms and conditions. Advice about a Consumer’s legal rights is available from the Citizens’
Advice Bureau or Trading Standards office.
Price of the Goods and/or Services
4.1 The price of the Goods and/or Services shall be the Company’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company’s Sale Confirmation on the date of acceptance of the Order.
4.2 The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods and/or Services to reflect any increase in the cost to the Company, due to a change to delivery dates, quantities, or specifications for the Goods and/or Services which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or Sale Confirmation of the Company, and unless otherwise agreed in Writing between the Customer and the Company, all prices are given by the Company on an ex-works basis, and where the Company agrees to deliver the Goods and/or Services otherwise than at the Company’s premises, the Customer shall be liable to pay the Company’s charges for transport, packaging and insurance.
4.4 The price is inclusive of packaging and custom duties but exclusive of any applicable value added tax and delivery charges, which the Customer shall be additionally liable to pay to the Company. If the rate of the value added tax changes between the date of the Customer’s Order and the date of delivery, the Company will adjust the value added tax paid by the Customer, unless the Customer has already paid for the Goods in full before the change in the value added tax takes effect.
4.5 Unless otherwise agreed with the Company, the Customer shall pay the costs of delivery as set out in the Order.
Terms of Payment
5.1 The Customer shall pay the price of the Goods and/or Services in full prior to collection or delivery of the Goods unless credit terms have been agreed in writing in advance with the Company.
5.2 The Company shall be entitled to render an invoice to the Customer in respect of the price or hire of the Goods on or at any time after delivery of the Goods and in the case of the price of the Services, at any time on or after completion of the Services.
5.3 The Customer shall pay the price of the Goods and/or Services within 30 days of the date of the Company’s invoice, and the Company shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract.
5.4 If the Customer fails to make any payment on the due date, then without prejudice to any other right or remedy available to the Company the Company shall be entitled to: –
5.4.1 cancel the Contract or suspend any further deliveries of Goods to the Customer or cease performing any Services for the Customer;
5.4.2 appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Customer); and
5.4.3 charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 4% per annum above the Bank of England’s base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest.
5.5 Notwithstanding any other provisions under the Contract, all payments payable to the Company under the Contract shall become due and payable immediately upon termination of the Contract.
Set-Off
6.1 The Company may at any time (without notice to the Customer) set off any liability of the Customer to the Company against any liability of the Company to the Customer, whether any such liability is present or future, liquidated or unliquidated, under this agreement or not and irrespective of the currency of its denomination. Any exercise by the Company of its rights under this Condition shall be without prejudice to any other rights or remedies available to it under the Contract or otherwise.
6.2 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law.
Delivery of Goods
7.1 Delivery of the Goods shall be made by the Customer collecting the Goods at the Company’s premises at any time after the Company has notified the Customer that the Goods are ready for collection or, if the Company has agreed to deliver the Goods, by the completion of unloading the Goods at the Customer’s designated delivery address.
7.2 Any dates quoted for delivery of the Goods are approximate only, and the Company shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Company in writing. The Company shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods; further, the Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by an event listed in clause 12.10 or the Customer’s failure to provide the Company with adequate access or delivery instructions or any other instructions that are relevant to the supply of the Goods. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer.
7.3 If the Customer fails to take delivery of the Goods, then except where such failure or delay is caused by an event listed at clause 12.10 or the Company’s failure to comply with its obligations under the Contract:
7.3.1 the Company shall have the right, but not the obligation, to store the Goods until delivery takes place, and charge for all related costs and expenses (including insurance).
7.3.2 the Goods shall remain available for collection from the Company’s warehouse for a further 10 Business Days or the Company may, in its discretion, agree to attempt delivery of the Goods again. If 10 Business Days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them or arranged a new delivery date, the Company may resell or otherwise dispose of part or all of the Goods.
Performance of Services
8.1 The Company shall endeavour to perform the Services in accordance with any timescales agreed between the Company and the Customer but time of performance of the Services shall not be of the essence of the Contract.
8.2 The Customer shall: –
8.2.1 provide the Company, its employees, agents, consultants or sub-contractors with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Company to provide the Services;
8.2.2 provide the Company with such information and material which may reasonably be required by the Company to supply the Services, and ensure that such information is accurate in all material respects;
8.2.3 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
8.2.4 keep and maintain all materials, equipment, documents and other property of the Company (Company Materials) at the Customer’s premises in safe custody at its own risk;
8.2.5 obtain further information from the Company if the Goods are to be used for any purpose other than the normal commercial use or for any purpose which is not covered by any warranty which applies to it; and
8.2.6 not use the Goods for any purpose which is prohibited by law or to facilitate a breach of law.
8.3 If the Company’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
8.3.1 The Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;
8.3.2 The Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 8.3; and
8.4 The Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
Risk
9.1 Risk of damage to or loss of the Goods shall pass to the Customer: –
9.1.1 in the case of Goods to be delivered at the Company’s premises, at the time when the Goods leave the Company’s premises; or
9.1.2 in the case of Goods to be delivered otherwise than at the Company’s premises, at the time when the Goods are unloaded at the Customer’s designated delivery address.
Title of Goods (Sale)
10.1 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, title to the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the Goods; and all other sums which are or which become due to the Company from the Customer on any account.
10.2 Until title to the Goods has passed to the Customer, the Customer shall:
10.2.1 hold the Goods on a fiduciary basis as the Company’s bailee;
10.2.2 store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property;
10.2.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
10.2.4 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full replacement value against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company;
10.2.5 not sell, offer to sell, assign, underlet, pledge, mortgage, charge, encumber or part with possession of the Goods or any interest in the Goods nor create or allow to be created over the Goods any lien; and
10.2.6 notify the Company immediately if the customer becomes subject to any insolvency events (listed at clause 13).
10.3 The Customer may resell the Goods before title has passed to it solely on the following conditions:
10.3.1 any sale shall be effected in the ordinary course of the Customer’s business at full market value;
10.3.2 any such sale shall be a sale of the Company’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale; and
10.4 The Customer’s right to possession of the Goods shall terminate immediately if any of the events as set out in Condition 13.1 occurs.
10.5 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
10.6 The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
10.7 Where the Company is unable to determine whether any Goods are the Goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all Goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.
Title of Goods (Hire)
11.1 Title to Goods that are hired to the Customer shall remain at all times with the Company. The Customer has no right, title or interest in such Hire Goods except that they are hired to the Customer and the Customer acquires only an insurable interest in such Hire Goods.
11.2 The Customer shall maintain the Hire Goods in satisfactory condition and keep them insured on the Company’s behalf for their full replacement value against all risks for the entire duration of the period of hire and to the reasonable satisfaction of the Company. The Customer shall, at its own expense, obtain and maintain the following insurances:
11.2.1 insurance of the Hire Goods to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Company may from time to time nominate in writing;
11.2.2 insurance for such amounts as a prudent owner or operator of the Hire Goods would insure for, or such amount as the Company may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Hire Goods; and
11.2.3 insurance against such other or further risks relating to the Hire Goods as may be required by law, together with such other insurance as the Company may from time to time consider reasonably necessary and advise to the Customer. the Customer shall ensure (and provide evidence to the Company) that such sale is subject to this
11.3 The customer shall give immediate written notice to the Company in the event of any loss or damage to the Hire Goods arising from or in connection with the Customer’s possession or use of the Hire Goods.
11.4 The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Company and proof of premium payment to the Company to confirm the insurance arrangements.
11.5 Where the Customer fails to maintain any of the insurances required under the Contract or these Conditions, the Company shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Customer.
11.6 The provisions of Conditions 10.2, 10.4, 10.6 and 10.7 shall apply to the Hire Goods however the Customer may re-hire the Goods to a third party with the Company’s consent and provided that the provisions of Condition 10.3.3 are met.
Warranties and Liability
12.1 Subject to the Conditions set out below the Company warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 24 months from the date of delivery for all new products or services, and for a period of 30 days for refurbished or used goods, unless otherwise stated in the Quotation provided by the Company, and the Company further warrants that any Services shall be performed with reasonable skill and care.
12.2 The above warranties are given by the Company subject to the following Conditions:
12.2.1 the Company shall be under no liability if after giving notice under the warranty, the customer continues to use the Hire Goods;
12.2.2 the Company shall be under no liability in respect of the goods differing due to changes made to comply with statutory/regulatory standards;
12.2.3 the Company shall be under no liability in respect of any defect arising from any drawing, design or specification supplied by the Customer;
12.2.4 the Company shall be under no liability in respect of consumables contained within goods such as batteries, printer toner, etc.;
12.2.5 the Company shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company’s approval; and
12.2.6 the Company shall be under no liability in respect of any defects or faults of the Customer’s systems in conjunction with which the Goods are used or in respect of any problems which are due to the individual workings of the Customer’s systems in conjunction with which Goods are used; and
12.2.7 the Company shall be under no liability under the above warranties (or any other warranty, condition or guarantee) if the total price for the Goods and/or any related Services has not been paid by the due date for payment.
12.3 Subject as expressly provided in these Conditions, and except where the Goods and/or Services are sold to a person dealing as a Consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.4 Where the Goods are sold under a Consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by these Conditions.
12.5 Any claim by the Customer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to the Company within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) during the specified warranty period for said goods. If delivery is not refused, and the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. This does not affect a Consumer’s rights under clause 3.5 of these terms and conditions.
12.6 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Conditions, the Company shall have the right to reasonably examine the goods and require the Customer to return such goods to the Company’s place of business at the Customer’s cost.
12.7 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Conditions, the Company shall be entitled to replace the Goods (or the part in question) free of charge or, at the Company’s sole discretion, refund to the Customer the price of the Goods (or a proportionate part of the price), but the Company shall have no further liability to the Customer.
12.8 Insofar as the Goods comprise or contain equipment or components which were not manufactured or produced by the Company, the Customer shall be entitled only to such warranty or other benefit as the Company has received from the manufacturer. For the purposes of a Consumer, a manufacturer’s guarantee or warranty is in addition to the Consumer’s legal rights in relation to Goods that are faulty or not as described. Advice about a Consumer’s legal rights can be obtained from the Citizen Advice Bureau or Trading Standards Office.
12.9 It should be noted that the offer to replace or repair in clause 12.7 does not include software and that the Company shall not be responsible for errors or defects in software supplied to the Customer, except where this is specifically detailed as a separate line in the Quotation, such as in circumstances where software is developed specifically for the Customer.
12.10 It should be noted that the Where any valid claim is notified by the Customer to the Company based upon any failure by the Company to perform the Services with reasonable skill and care (such claim to be notified to the Company within 7 days from the discovery by the Customer of circumstances giving rise to a valid claim in respect thereof) then the Company shall at its expense take such action is it considers necessary to remedy any such failure but the Company shall have no further liability to the Customer in respect thereof.
12.11 Except in respect of death or personal injury caused by the Company’s negligence, the Company shall under no circumstance whatever be liable to the Customer whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connect with the Contract for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods and/or Services or their use or resale by the Customer, and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the Goods and/or the Services (as the case may be) or the proceeds of any insurance policy received by the Company in respect of such liability (whichever is the greater), except as expressly provided in these Conditions. This clause 12.11 shall only apply to Customers other than Consumers.
12.12 The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods and/or Services, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control: –
12.12.1 Act of God, explosion, flood, tempest, fire or accident;
12.12.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
12.12.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
12.12.4 import or export regulations or embargoes;
12.12.5 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);
12.12.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
12.12.7 Power failure or breakdown in machinery.
12.13 Unless otherwise agreed in writing, with acceptance of these goods, the Customer accepts the transfer of the WEEE end of life obligations.
12.14 The Customer shall indemnify the Company on demand and keep the Company indemnified from and against all actions, damage, losses, costs (including legal costs), expenses, demands or liabilities arising out of or in connection with the assembly or incorporation by the Customer of the Goods into any system, design, or equipment of the Customer’s or any third party.
12.15 Clauses 12.16 to 12.19 (inclusive) relate to the liability of the Company to a Consumer and shall only apply to a Consumer.
12.16 If the Company fails to comply with these terms and conditions, the Company shall be responsible for loss or damage suffered by the Consumer that is a foreseeable result of the Company’s breach of these terms and conditions or the Company’s negligence. The Company shall not be responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if they were an obvious consequence of the Company’s breach or if they were contemplated by the Consumer and the Company at the time the Consumer and the Company entered into the Contract.
12.17 Where the Company supplies Goods purely for domestic and private use, the Consumer agrees not to use the product for any commercial, business or re-sale purposes, and the Company shall have no liability to the Consumer for any loss of profit, loss of business, business interruption, or loss of business opportunity.
12.18 The Company does not in any way exclude or limit its liability to a Consumer for:
(a) death or personal injury caused by our negligence;
(b) fraud or fraudulent misrepresentation;
(c) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and
quiet possession);
(d) any breach of the terms implied by section 13 to 15 of the Sale of Goods Act 1979
(description, satisfactory quality, fitness for purpose and samples); and
(e) defective products under the Consumer Protection Act 1987.
12.19 Subject to clause 12.16 to 12.19 (inclusive), the Company’s maximum liability to the Consumer under the Contract whether in contract, tort (including negligence) or otherwise shall not exceed a sum equivalent to twice the value of the Goods.
12.20 The following Tems and Conditions specifically apply to the sale and supply of pinball machines, where the machines are designed primarily for Business Use, and the complex nature of the machines requires regular servicing and maintenance, and where the terms of the warranty will vary depending upon the usage type of the customer as follows:
12.20.1 Light Use Non-Commercial Customers – The equipment warranty is provided to the original purchaser of the equipment for a period of 24 months, with the exclusion of balls, bulbs, LEDs, and rubbers, on a return for repair basis, with full telephone and online support being available. Light Use Non-Commercial Customers are defined as those using the equipment in a domestic or office environment, with up to 400 plays per month.
12.20.2 Commercial Use Customers - The equipment warranty is provided to the original purchaser of the equipment for a period of 3 months, with the exclusion of balls, bulbs, LEDs, and rubbers, on a return for repair basis, with full telephone and online support being available. Commercial Use Customers are defined as those using the equipment in a non-domestic or office environment, with over 400 plays per month, or customers operating the equipment in a domestic or office environment with over 400 plays per month.Insolvency of Customer and Termination
13.1 If the Company becomes subject to any of the events lists in clause 13.2 below or the Company reasonably believes that the Customer is about to become subject to any of them and the Company notified the Customer accordingly, then without limiting any other right or remedy available to the Company, the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Company and the Customer without incurring any liability to the Customer, and all outstanding sums in respect of the Goods delivered to the Customer shall become immediately due.
13.2 The Company or The Customer may terminate the Contract if: –
13.2.1 the Customer commits a material or persistent breach of the Contract or these Conditions and fails to remedy it to the Company’s satisfaction within 14 calendar days of written notice being given to the Customer by the Company to do so; or
13.2.2 the Customer become insolvent, are unable to pay debts as they fall due or suspend or threaten to suspend payment of its debts or (being a partnership) have any partner to whom any of these circumstances apply; or
13.2.3 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.2.4 (being a company or limited liability partnership) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer; or
13.2.5 (being an individual) the Customer is the subject of a bankruptcy petition or order; or
13.2.6 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 10 Business Days; or
13.2.7 (being a company or limited liability partnership) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; or
13.2.8 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver or administrative receiver is appointed over the Customer’s assets; or
13.2.9 any event occurs, or proceedings are taken, with respect to the Customer in any jurisdiction to which the subject and effect are equivalent or similar to any of the events mentioned in 13.2.2-13.2.8 (inclusive); or
13.2.10 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
13.2.11 the Customer’s financial position deteriorates to such an extent that in the Company’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
13.3 If Condition 13.2 applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for and Services have been provided but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
13.4 Termination of the Contract, however arising shall not affect either or the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
Conditions Specific to Hire Goods
14.1 Care of Hire Goods
The Customer shall: –
14.1.1 not remove any labels from and/or interfere with the Hire Goods, their working mechanisms or any other parts of them and shall take reasonable care of the Hire Goods and only use them for their proper purpose in a safe and correct manner in accordance with any operating and/or safety instructions provided or supplied to the Customer;
14.1.2 notify the Company immediately after any breakdown, loss and/or damage to the Hire Goods;
14.1.3 take adequate and proper measures and insurance to protect the Hire Goods from theft, damage and/or other risks;
14.1.4 notify the Company of any change of its address and upon the Company’s request provide details of the location of the Hire Goods;
14.1.5 permit the Company, its employees, agents, or sub-contractors at all reasonable times to inspect the Hire Goods including procuring access to any property where the Hire Goods are situated;
14.1.6 keep the Hire Goods at all times in its possession and control and not to remove the Hire Goods from the country where the Customer is located and/or the country where the Company is located without the prior written consent of the Company;
14.1.7 be responsible for the conduct and cost of any testing, examinations and/or checks in relation to the Hire Goods required by any legislation, best practice and/or operating instructions except to the extent that the Company has agreed to provide them as part of any Services;
14.1.8 not continue to use Hire Goods where they have been damaged and will notify the Company immediately if the Hire Goods are involved in an accident resulting in damage to the Hire Goods, other property and/or injury to any person;
14.1.9 return the Hire Goods in good working order and condition (fair wear and tear excepted) and in a clean condition together with all insurance policies, licences, registration and other documents relating to the Hire Goods;
14.1.10 agree the functionality of the Hire Goods and associated features at the time of the collection/delivery;
14.1.11 not use the Hire Goods for unlawful purpose;
14.1.12 not do or permit anything to be done which could invalidate the insurances;
14.1.13 make no alteration to the Hire Goods and shall not remove any existing component(s) from the Hire Goods without the prior written consent of the Company, unless carried out to comply with any mandatory modifications required by law or any regulatory authority. Title and property in all substitutions, replacements, renewals made in or to the Hire Goods shall vest in the Company immediately upon installation;
14.1.14 not, without the prior written consent of the Company, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Hire Goods or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
14.1.15 not without the prior written consent of the Company, attach the Hire Goods to any land or building so as to cause the Hire Goods to become a permanent or immovable fixture on such land or building. If the Hire Goods do become affixed to any land or building then the Hire Goods must be capable of being removed without material injury to such land or building and the Customer shall repair and make good any damage caused by the affixation or removal of the Hire Goods from any land or building and indemnify the Company against all losses, costs or expenses incurred as a result of such affixation or removal;
14.1.16 not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Company in the Hire Goods and, where the Hire Goods has become affixed to any land or building, the Customer must take all necessary steps to ensure that the Company may enter such land or building and recover the Hire Goods both during the term of this agreement and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of the Company of any rights such person may have or acquire in the Hire Goods and a right for the Company to enter onto such land or building to remove the Hire Goods;
14.1.17 not suffer or permit the Hire Goods to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Hire Goods are so confiscated, seized or taken, the Customer shall notify the Company and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Hire Goods and shall indemnify the Company on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation; and
14.1.18 deliver up the Hire Goods at the end of the Contract or on earlier termination of the Contract at such address as the Company requires, or if necessary allow the Company or its representatives access to the Customer’s premises or any premises where the Hire Goods are located for the purpose of removing the Hire Goods.
14.2 Breakdown
14.2.1 The Customer shall be responsible for all expenses, loss and/or damage suffered by the Company arising from any breakdown of the Hire Goods due to the Customer’s negligence, misdirection and/or misuse of the Hire Goods.
14.2.2 The Customer should ensure that goods are placed on a suitable maintenance contract throughout the duration of the rental. The Company is able to provide a quote for maintenance if required.
14.2.3 The Customer must not repair or attempt to repair the Hire Goods unless authorised to do so in writing by the Company.
14.3 Loss or Damage to the Hire Goods
14.3.1 If the Hire Goods are returned in damaged, unclean and/or defective state except where due to fair wear and tear and/or an inherent fault in the Hire Goods the Customer shall be liable to pay the Company for the cost of any repair and/or cleaning required to return the Hire Goods to a condition fit for re-hire and to pay the rental costs until such repairs and/or cleaning have been completed.
14.3.2 The Customer will pay to the Company the replacement cost on a new for old basis of any Hire Goods which are lost, stolen and/or damaged beyond economic repair during the Hire Period less the amount paid to the Company under any policy of insurance taken out in accordance with Condition 11.2.
14.3.3 The Customer shall pay the rental for the Hire Goods up to and including the date it notifies the Company that the Hire Goods have been lost, stolen and/or damaged beyond economic repair. From that date until the Company has replaced such Hire Goods the Customer shall pay, as a genuine pre-estimate of lost rental profit, a sum as liquidated damages being equal to two thirds of the Rental that would have applied for such Hire Goods for that period. The Company shall use its reasonable commercial endeavours to purchase replacements for such Hire Goods as quickly as possible using the monies paid under clause 14.3.2 above.
14.4 Termination by notice
14.4.1 If the period of hire has a fixed duration, subject to the provisions of Condition 13 neither the Customer nor the Company shall be entitled to terminate the Contract before the expiry of that fixed period unless agreed with the other party.
14.4.2 If the Hire Period does not have a fixed duration either of the Customer or the Company is entitled to terminate the Contract upon giving to the other party any agreed period of notice.
14.4.3 If no period of notice has been agreed or specified, the Customer may terminate the period of hire by the physical return of the Hire Goods to the Company.
14.4.4 The Company shall be entitled to terminate the hire of the Hire Goods by giving not less than 14 days’ notice to the Customer.
General
15.1 The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
15.2 The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
15.3 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
15.4 If the Customer is a Consumer, the Consumer may cancel a Contract in accordance with their legal rights to do so set out in clause 3.5. The Consumer must contact the Company in writing by sending an email to sales@parallaxdigital.co.uk or by sending a letter to Parallax Digital Technologies Ltd, Unit 19 Endeavour Park, Baker Road, Nelson Park West, Cramlington, Northumberland, NE23 1XA . The Consumer may wish to keep a copy of the cancellation notification for their own records. If the consumer sends the Company a cancellation notice by post or e-mail, then the cancellation shall take effect from the date the e-mail was sent
15.5 If a Consumer wishes to contact the Company in writing for any other reason, the Consumer can contact the Company by e-mail to sales@parallaxdigital.co.uk or by pre-paid post to the following address: at Parallax Digital Technologies Ltd, Unit 19 Endeavour Park, Baker Road, Nelson Park West, Cramlington, Northumberland, NE23 1XA.
15.6 No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
15.7 If any provision of these Conditions is held by any competent authority to be invalid, illegal or unenforceable in whole or in part, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
15.8 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
15.9 The Customer agrees that it shall at all times comply with all applicable laws and ethical trading guidelines, including but not limited to ensuring that the Customer and the Customer’s Agent shall not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010 and the Modern Slavery Act 2015 (as may be amended from time to time).
15.10 Nothing in these Conditions confers on anyone other than the parties to it any right to enforce any of its terms pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
15.11 In the event of a dispute between the parties which has not been resolved using normal channels, the Customer can use the EU Commission Online Dispute Resolution (ODR) website to register a dispute, at the following address: http://ec.europa.eu/consumers/odr/.
15.12 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales, and the Customer agrees to submit to the exclusive jurisdiction of the courts of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims). Where the Customer is a Consumer who is a resident of Northern Ireland, the Consumer may bring proceedings in Northern Ireland. Where the Customer is a Consumer who is a resident of Scotland, the Consumer may also bring proceedings in Scotland.