What
is this Document?
1.1 This document (the
"Terms and Conditions"
) forms part of an agreement between
Expert Design and you, the Customer.
1.2 The Conditions together
with the (1) Service Descriptions and/or
(2) Product Descriptions and (3) pricing
applicable to the Products and Services
that you wish to buy together form the
whole of Expert Design's "Agreement"
with Customer. The Agreement is a binding
document and Customers should ensure
that they understand it.
1.3 Some parts of this Agreement
apply to all of our Customers. However
other parts are specific to Consumers
only or to 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
and will seek to ensure that changes
are documented in writing (which will
be required in all cases for Business
Users).
1.5
Our Agreement is intended to
comply with all of your statutory rights
as a Consumer. However, in the event
that any uncertainty arises your statutory
rights as a Consumer will take priority
over the Agreement.
Definitions
Business
User: legal entity or person
who buys or agrees to buy Products and/or
Services from Expert Design other than
for private use
Conditions:
this document;
Consumer:
an
individual who buys or agrees to buy
Products and/or Services from Expert
Design for private use;
Customer:
Consumers and Business Users
collectively;
CFI:
Custom Factory Integration:
a Service for Business Users combining
Business User specified software and
hardware with Product(s) at the time
of manufacture which may include image
and applications loading and maintenance,
software integration, hardware integration
and/or asset management services;
Expert
Design: the Expert Design group
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 Expert Design;
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 Business User within the
scope of CFI;
IPR:
"Intellectual Property Rights"
, patents, trade marks, registered designs,
and applications for same, copyright,
design rights, know-how, trade and business
names and any other similar protected
rights in any country;
Order:
request by Customer to purchase
Product or Services from Expert Design;
Order
Confirmation: written acceptance
by Expert Design of Customer's Order;
Price:
the
total charge for Products and/or Services
payable by Customer to Expert Design;
Products:
an individual good (including
Software) as described in any current
document published by Expert Design
physically and/or on its internet site,
or in any Order Confirmation and which
Customer buys or agrees to buy from
Expert Design but excluding items added
to Expert Design hardware through CFI;
Services:
service and support (including
CFI) carried out by or for Expert Design
in accordance with the Service Offering;
Service
Offering(s): the Service options
offered by Expert Design as described
in any current document published by
Expert Design physically and/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, Expert Design;
Third
Party Products: products not
manufactured, assembled or authored
by Expert Design that Expert Design
sells.
Third
Party Software: computer operating
systems, middleware, applications or
other software from a third party editor
or licensor.
Quotations/Orders and Changes
3.1
Expert
Design quotations are valid only if
in writing and for 10 days after the
quotation date, unless otherwise stated
in the quotation.
3.2
All Orders for Products and/or
Services shall be regarded as an offer
by Customer to purchase Products and/or
Services under the terms of this Agreement.
3.3
Expert Design accepts Customer's
offer to purchase under this Agreement
and makes a binding Agreement by issuing
an Order Confirmation. Order confirmation
is binding except, in the case of consumers
only, where there is a discrepancy between
order confirmation and what consumer
ordered and where discrepancy is unacceptable
to the consumer. It is recommended that
Customer review the Order Confirmation
and notify Expert Design within a reasonable
period of time of any discrepancies
that are noticed.
3.4
Expert Design reserves the
right to make changes to ordered specifications
but will identify any such changes in
the Order Confirmation. Expert Design
guarantees that any such changed Products
will offer at least equivalent functionality
and performance. Expert Design will
not make any significant variations
to Products or Services without Customer's
prior agreement and, except as provided
for above, will manufacture and deliver
Product in accordance with the Order
Confirmation.
Price
and Payment
4.1
The Price that Customers have
to pay will be shown on Expert Design's
Order Confirmation and invoices.
4.2 Payment shall be
made before supply of Product or Service.
Expert Design may suspend delivery of
Product or Service until full payment
is received. If Expert Design has delivered
Product and/or Services and the Product
and/or Services remain neither paid
for nor made available for collection
when reasonably demanded then Expert
Design may recover the outstanding payment
and/or Product and the recovery costs
are to be paid by the Consumer.
4.3 If agreed in advance
in writing, Business Users may pay within
90 days of the date of invoice. Expert
Design may suspend delivery of Product
or Service until full payment is received.
If full payment is not received Expert
Design will be entitled to charge interest
on the amount outstanding at the rate
of 4% per annum above the London Inter
Bank Offer Rate ("LIBOR").
If Expert Design must recover the outstanding
payment and/or Product, recovery costs
are to be paid by Business User.
4.4
For Orders to be delivered
in installments over a period of time,
Expert Design may adjust prices due
to changes to exchange rates, duties,
insurance, freight, handling and purchase
costs.
Delivery
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.
5.4 Delivery will take
place less than 15 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 15 days from the original
date of order then Consumer will be
contacted and advised of a proposed
new date for delivery. If Consumer refuses
the revised delivery date and delivery
is not made within 15 days from the
original date of order or prior to the
specifically agreed delivery date if
applicable, then Consumer may cancel
the order without charge and obtain
a full refund.
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 15 days of requesting
the Service.
Passing
of Ownership and Risk
6.1
Ownership of Products passes
to Customer on the later of receipt
by Expert Design of full payment or
delivery to Customer of Product. Expert
Design 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
Consumers 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.
Acceptance
of Products on Delivery, rights of return
& cancellation
7.1
Customer should notify Expert
Design promptly: following delivery
of any missing, incorrectly delivered,
incorrect specification (subject to
Clauses 3.3 and 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 Expert Design 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 Expert
Design to collect Product at a particular
time.
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
and public holidays) after the day of
receipt of the Product and/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 Expert
Design in their original condition,
undamaged and at the cost of Consumer.
Consumer shall take reasonable care
to ensure that the goods are not damaged
whilst in transit using means arranged
by Consumer. Whilst in possession of
the goods Consumer shall be under a
duty to take reasonable care of them.
Expert Design 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 and 7.5 do not apply to Product
or Software that is damaged or defective.
7.7
On cancellation of the Order
Expert Design will refund the price
paid, less the direct cost of recovering
the goods (when applicable), within
a period of 15 days from date of cancellation.
7.8 Notwithstanding
anything herein to the contrary (including
without limitation Clauses 3.3 and 3.4),
Business Users may only reject Product
for material non-conformity with the
Product Description by providing written
notice to Expert Design within 7 days
after delivery or otherwise shall be
deemed to have accepted the Products.
Statutory
Rights, Warranties, Repairs, Replacements
and Services
8.1
Expert Design will fulfill
its legal obligations to repair and/or
replace Products. These obligations
are dependent upon proper use of Products
and do not cover any parts of Products
which have been modified or repaired
without Expert Design's prior written
consent. Expert Design may ask third
party Software licensors to fulfill
Expert Design's and/or licensor's legal
obligations relating to the supply of
that licensor's software.
8.2
Expert Design's obligations
do not apply to the consumable components
of consumable items (such as toner in
printer cartridges) or if a defect is
caused by an external cause such as
fair wear and tear, software or hardware
loaded onto or connected to Product
by Customer where this software or hardware
has not been supplied by Expert Design,
an accident, hazard, humidity control,
electrical stress or other environmental
conditions not commonly found in a safe
home or office environment.
8.3
Parts not critical to Product
function, including but not limited
to hinges, doors, cosmetic features,
and frames, are not serviced and/or
repaired.
8.4
Expert Design's obligations
under its Service Offerings are as stated
in the Descriptions for those Service
Offerings. Expert Design will use all
reasonable endeavours 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 and availability
of components. Expert Design will comply
with all other terms of its Service
Offerings.
8.5
Expert Design does not provide Expert
Design 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.
8.6
Service may be provided via telephone
(at the normal national rate) or Internet
where appropriate. Any such Services
will be clearly identified and will
be provided in compliance with relevant
regulations and codes applying to provision
and use of Premium Rated Services. Telephone
calls may be recorded for training purposes.
Customer must provide Expert Design
with all reasonable courtesy, information
and cooperation to enable Expert Design
to deliver the Services and shall be
responsible for all telephone and postal
charges in contacting Expert Design.
8.7
Expert Design makes repairs
as required at law and, 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.
8.8
Expert Design owns any Product
or parts that are removed during repair.
Expert Design may require Customer to
return removed parts to Expert Design
for reconditioning, analysis or for
environmental reasons.
8.9
If Customer does not return
removed parts Expert Design then may
charge a fee of which Customer will
be informed prior to charge. The fee
will reflect the cost incurred by Expert
Design in retrieving the part(s), and/or
the cost of procuring another component
to recondition and/or arising from failure
to comply with environmental obligations
as a result of the Customer's failure
to return the Product or part.
8.10
The charge referred to in 8.9
and 8.10 above will not apply to Consumers
returning defective parts which have
been replaced in accordance with statutory
rights.
8.11
Products, Software and Services sold
will correspond to their Description
(except as stated in Term 3.4 above).
8.12
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 and 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 Expert Design prior to purchase.
8.13
Expert Design will repair,
or in the event that repair does not
occur, replace Product which is defective
within a reasonable period and with
reasonable care and skill. This may
only be varied to the extent reasonably
agreed with Consumer.
8.14 Business Users
are not automatically entitled to repair
or replacement other than as described
in a Service Description or as otherwise
agreed by Expert Design. Expert Design
shall have no liability or obligation
for defects in Products or failure to
remedy defects except as expressly provided
under this Agreement.
8.15
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 Expert Design and all such
warranties are hereby excluded.
Circumstances
beyond the Parties' control ("Force
Majeure")
9.1
Neither party is responsible
for non-performance in case of circumstances
beyond its reasonable control ("Force
Majeure") including without limitation,
strikes by non Expert Design employees,
terrorist acts, war, exchange fluctuations,
governmental or regulatory actions,
natural disasters, severe weather, unforeseeable
transport or production problems affecting
companies that supply Expert Design.
9.2
If
a Force Majeure event occurs and Expert
Design cannot deliver within the period
set out in the Order Confirmation, Expert
Design will and Consumer may act in
accordance with the terms of clause
5.5 above.
9.3
If the Force Majeure event
lasts longer than 30 days then Expert
Design shall have the right to terminate
the Agreement by providing notice in
writing to Consumer and returning all
sums paid by Consumer under the Agreement.
No compensation to Consumer will then
be due in these circumstances.
9.4
The same provisions apply to
Business Users as apply to Consumers
in Clauses 10.1 and 10.3. Neither Expert
Design in respect of a Business User
nor a Business User in respect of Expert
Design may use Clause 10.2.
Liability
10.1
Expert Design accepts liability
for any loss or damage to private property,
death or personal injury caused by the
Products and Services supplied, the
negligence or deliberate misconduct
of Expert Design or subcontractors acting
on Expert Design's behalf, provided,
however, that in all cases, except for
death or personal injury (where there
shall be no limit on liability), Expert
Design's liability for losses suffered
by Customer will be assessed in accordance
with the applicable terms of this Clause
11.
10.2 Expert Design
shall accept liability for reasonably
foreseeable losses arising as a direct
consequence of breach by Expert Design
of its statutory duty. However Expert
Design shall not be liable in certain
circumstances for example where the
causes or potential causes of the loss:
10.2.1
were not reasonably foreseeable
by both parties; and/or
10.2.2
were known by Consumer to
the exclusion of Expert Design at
the time that the Agreement was entered
into; and/or
10.2.3
arose from the use of the
Product and/or Services for purposes
other than those contemplated in Clause
8.13.
10.2.4
were reasonably foreseeable
and preventable by Consumer such as
those arising from, but not limited
to:
10.2.4.1
data or information loss caused
by failing to keep back up copies
of important data on separate media;
or
10.2.4.2
virus damage; or
10.2.4.3
user inflicted problems such as
those caused by failure to read
and/or follow user instructions
provided in writing or orally by
a Expert Design technician.
10.3
In claiming against Expert
Design for any such losses Consumer
is expected to have acted reasonably,
for example, with regard to:
10.3.1
how the losses were accrued
- including steps taken to mitigate
or to avoid losses occurring; and
10.3.2
taking reasonable precautions
to avoid loss (such as contacting
Expert Design promptly upon becoming
aware of an issue).
10.4 The provisions of Clauses
10.2 and 10.3 will also apply Business
Users as if the word "Consumer"
were replaced by the words "Business
User" except that:
10.4.1 in all cases
except for death or personal injury
(where there will be no limit on liability)
Expert Design's liability for losses
will not exceed a sum equal to 125%
of the Price; and
10.4.2
Expert
Design will not be liable for:
10.4.2.1
use not consistent with
clause 8.15 (rather than clause
8.13);
10.4.2.2
loss resulting from any
defect or deficiency in Products
or Services which Expert Design
shall have remedied within a reasonable
period and/or consistently with
the terms of a Service Description;
10.4.2.3
consequential losses such
as loss of business profits, salary,
revenue, data or anticipated savings.
Intellectual
Property and Software
11.1
Expert
Design Indemnifies Customer from all
costs and liabilities arising from any
claim that use of Product or Software
infringes any third party IPR. Expert
Design may recall and 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.
11.2
Expert Design retains all Expert
Design-owned IPR in Product. Customer
must notify Expert Design immediately
of any infringing or unauthorised use
of Product or IPR in it.
11.3
Expert Design does not Indemnify
Customer for:
11.3.1 Third Party
Hardware or Third Party Software;
11.3.2
unauthorised modification
or use of the Products or Software;
11.3.3
any claim caused by the use
of Products or Software in conjunction
with anything not supplied by Expert
Design. Customer must comply with
the license conditions for any Software
supplied.
11.4
Customer Indemnifies Expert
Design for any claim which arises due
to Customer's own actions of which Expert
Design had no knowledge or could not
reasonably be expected to have had knowledge.
11.5
Expert Design is allowed to
litigate, negotiate and settle claims
and Customer must provide reasonable
assistance if requested to assist Expert
Design if litigation is directly related
to Products supplied to Customer.
11.6 Business Users additionally
Indemnify Expert Design, without limit,
for any claim related to IM or IPR specified
or owned by Business User and integrated
into Product.
Data
Protection
12.1
Personal data obtained by Expert
Design from Customer shall be held and
processed in accordance with all applicable
laws and consistently with Expert Design's
Privacy Policy. Expert Design will not
share such personal data with other
Expert Design entities, agents, or subcontractors
performing services for Expert Design.
Confidentiality
13.1
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.
Termination
14.1
Either party may terminate
this Agreement if the other:
14.1.1
commits a material or persistent
breach of these Conditions; and
14.1.2
fails to remedy such breach
within 15 days of written notice being
given to it by the other part requiring
a remedy.
14.2
Expert Design may terminate
this Agreement with immediate written
notice if Customer:
14.2.1
fails, without good reason,
to pay on time;
14.3
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
Expert Design 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.
14.4
The following clauses of these
Conditions shall survive any termination
or expiration of these Conditions and
shall continue to bind the parties and
their permitted successors and assigns:
clauses 4.2, 4.3, 4.4, 6, 7, 8.9, 8.10,
11, 12, 13, 14, 15 and 16.
Law
and Jurisdiction
15.1
This Agreement is to be interpreted
in accordance with English Law but may
be subject for Consumers to the jurisdiction
of the English, Welsh, Northern Irish
or Scottish courts at the claimant's
choice. For Business Customers the English
courts shall have exclusive jurisdiction.
15.2
If any part of these Conditions
are found to be unenforceable by a court,
the rest are unaffected. All notices
must be in writing and sent to a legal
officer of each party, at the address
provided on the invoice.
Assignment
and Subcontracting
16.1
Expert
Design may assign, subcontract or transfer
its obligations or rights to a competent
third party in whole or in part and
provided that the assignment, subcontract
or transfer occurs without negatively
affecting:
16.1.1 the provision of the
Products and/or Services and
16.1.2
rights or remedies of the Consumer
under the Agreement.
16.2
Expert Design requires Consumer
to inform it in advance of any assignment,
subcontract or transfer on the Consumer's
part.
16.3 Expert Design
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 Expert Design's
written consent.
