encomPOS Limited - Terms and Conditions of Sale
In this document and all related correspondence and documentation, ‘encomPOS’ shall signify any contracting subsidiary,affiliate, or associate company of encomPOS Ltd including encomPOS Ltd. The customer signifies any purchaser of goods from encomPOS, and includes any third party involved in the purchase, such as leasing or finance organisations. Payment includes payment direct from the customer, or through any third party including an encomPOS reseller or distributor.
| 1) | Terms & Conditions: Unless otherwise expressly agreed in writing by encomPOS, these conditions of sale and terms of business supersede any other conditions and terms, including without prejudice to the foregoing, any such conditions or terms contained in either the customers order, or any correspondence entered into by encomPOS and the customer. By using software provided by encomPOS Limited, you accept these terms. If you do not accept them, do not use the software. Instead, contact encomPOS Limited or its agent to determine the returns policy if this is not covered by the returns section below. You must comply with this policy, which might limit your rights or require you to return the entire system on which the software is installed. |
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| 2) | Payment & Credit: Save where credit terms are extended to the customer, payment for goods is due prior to delivery, or on delivery where expressly agreed by encomPOS in writing. Credit will only be extended to those customers who have applied for, and received written approval for, a credit account, or where special dispensation has been issued in writing. Payment of invoices relating to goods sold on credit shall be received by encomPOS in full within 30 days from date of invoice. Deposits, pre-installation charges, and other items marked for payment on invoice are due for immediate payment irrespective of special credit terms. encomPOS reserves the right to withdraw credit facilities if these terms are not fulfilled by the customer. In these circumstances encomPOS may, at its sole discretion, demand payment of all invoices whether due or not. Any discount applied at time of order is available only where payment is received in full within these terms. All discounts, special offers and special terms are valid for a maximum period of 30 days from the date of quotation unless otherwise expressly stated in writing by encomPOS. All accounts are payable at the encomPOS office shown on each invoice. |
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| 3) | Interest & Collection Charges: encomPOS reserves the right to charge interest on overdue invoices at a rate of 4% over and above Barclays Bank Plc base rate. This interest will be calculated on a daily basis from the day the invoice becomes due. The customer shall also be liable for any additional expenses incurred by encomPOS in the collection of sums overdue. |
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| 4) | Quotations: Quotations are given and orders accepted by encomPOS on the understanding that the prices charged will be those prevailing at the time of despatch, unless specifically agreed in writing to the contrary by encomPOS. Errors and omissions are excepted from all quotations, and prices may be altered without notice subsequent to the issue of a quotation, written or verbal. In any case, and without prejudice to the foregoing, all quotations are valid for a maximum period of 30 days. Neither the issue of price lists, nor the submission of a quotation constitutes an offer to sell. Orders given direct to encomPOS, or to its representatives either verbally or in writing do not constitute a contract unless either accepted by encomPOS in writing or by despatch of the goods involved. Orders for items not available at the time of order will be despatched immediately stocks are available unless prior cancellation in writing is given by encomPOS. All work carried out additional to that specified in the original quotation or order, whether experimentally or otherwise, shall be charged to the customer. |
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| 5) | Prices: Unless otherwise specified, prices are for delivery ex-encomPOS’s offices, and are subject to encomPOS’s right to increase any price to take account of delivery charges, insurance costs, special handling charges (if any) and/or packaging charges (if any), agreed changes in the specifications or changes in any taxes, duties, levies, or additional work required to install, deliver or support the products. Any extra costs of expenses incurred by encomPOS as a result of site conditions, delays, interruptions, lack of information, changes in exchange rates and/or without limitation any other factors beyond encomPOS’s control may also be reflected in a price increase or additional charges made to the customer. encomPOS also reserves the right to make small order surcharge on all orders below £100 in value. Unless expressly stated in writing by encomPOS, all prices exclude value-added tax and any other impositions whatsoever, which if applicable, shall be payable by the customer in addition. |
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| 6) | Limitation on supply to restricted areas and for restricted purposes: No products may be purchased for purposes excluded from encomPOS’s contracts with its suppliers or in contravention of international regulations. Supply to certain countries cannot be permitted, including but not limited to countries in Eastern Europe where the supply of certain goods, technological or otherwise is restricted, and any liability arising there from is wholly the responsibility of the customer. Export permits, import duties, and all other documentation relating to the export and use of products abroad are the responsibility of the customer. In the case of products manufactured in the United States of America, the customer must obtain all such written consents or authorisations as may be required by any applicable regulations of the United States Department of Commerce. Any intention to supply goods supplied by encomPOS to the customer to a third party must be declared by the customer to encomPOS in writing. Orders found to concern products which cannot be supplied to restricted areas or for restricted purposes will not be fulfilled by encomPOS.In such cases, encomPOS shall in any event not be liable for any direct or indirect loss or damage, and(without prejudice to any of its other rights): |
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| 7) |
Proprietary Rights and Conditions: |
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| 8) | Delivery: Any time or date for delivery stated by encomPOS is an estimate, and encomPOS shall not be liable for any direct or indirect loss or damage arising from any delay in the delivery of the goods. encomPOS may deliver the goods in instalments. Unless requested by the customer that all goods on a single order must be delivered simultaneously, payment is due for each item before delivery, or as it is delivered by encomPOS and accepted by the customer. Payment shall be made according to the provisions of paragraph 2 above. |
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| 9) | Risk: The risk of loss or damage to goods supplied by encomPOS shall pass to the customer when they are delivered to the customer or other person to whom the company has been authorised by the customer to deliver the goods, and encomPOS shall not be liable for the safety of goods thereafter. |
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| 10) | Title: Notwithstanding the provisions of paragraph 8 above, the property of and full title to the goods shall remain with encomPOS (which reserves the right to dispose of them) until payment in full for all goods supplied (both under the instance and any other contract) has been received in full, The customer agrees that prior to payment in full of the goods, encomPOS by its servants or agents may at any time enter upon the customers premises and remove the goods there from. If Payment is overdue in whole or in part on any goods supplied, then upon the commencement of any proceedings in respect of the customers insolvency, liquidation, inability/reluctance to meet financial claims, appointment of an Administrative Receiver over any or all of the Customer's assets, or if the customer makes an arrangement with its creditors, the customers power of sale or right to use goods supplied by encomPOS shall immediately cease, and encomPOS may (without prejudice to any of its other rights) recover or re-sell the goods or any of them, and may enter upon the customers premises by its servants or agents for that purpose. The customer must store the goods in a manner so that they can be clearly identified as the property of encomPOS. |
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| 11) | Complaints: The customer must notify encomPOS in writing as soon as is reasonably possible, but no later than 7 days from the date of delivery in the event that either the goods delivered do not correspond to the delivery note, or there is a justifiable complaint concerning the quality (relating to the physical condition) of the goods, or functionality or ease of use (relating to software). Such notification shall be followed by a complete claim in writing to encomPOS, and to any carrier concerned, within a further 7 days. If encomPOS shall so request the customer shall return any allegedly defective part or parts of the goods to encomPOS or as encomPOS shall direct at the customers expense, and pay to encomPOS the cost of any tests carried out to such part or parts together with the cost of return thereof to the customer in the event that no liability attaches to encomPOS in respect of defects. encomPOS accepts no liability for loss or damage caused by the carrier. Claims will not be accepted unless these conditions are fulfilled, and failing receipt of such notice or notices by encomPOS, the goods shall be deemed to be accepted. In the event of a complaint over quality of physical items, excluding software, encomPOS will if possible replace the goods, or appropriate elements thereof, with goods of improved quality. An additional charge may be levied by encomPOS in cases where the level of quality was not specified by the customer prior to ordering. encomPOS will endeavour, but does not guarantee to lend other goods should there be a delay in receipt of replacements. The maximum period of such loans is one week, unless otherwise agreed in writing by encomPOS. encomPOS will reimburse the customer in cases where no other suitable alternative can be found. Complaints concerning changes in specification, the introduction of new models, or any other factors concerning product changes made by manufacturers or suppliers outside the reasonable control of encomPOS do not qualify for replacement or reimbursement. In the case of software, encomPOS shall attempt to assist the customer within the warranty/cooling off period of the initial 14 days, OR if the customer is under a service level agreement will attempt to assist the customer until such time as the service level agreement may expire. encomPOS limited accepts to endeavour to assist customers where possible, but does not accept any liabilities or expenses in so doing. Remote and where applicable local access to the equipment and software will be required, and the customer will agree to provide assistance in the resolution where requested. |
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| 12) | Limitation of Liability: Except to the extend prohibited by local law, in no event will encomPOS, or it’s employees or officers be liable for direct, special, indicental, consequential or other damages (including lost profit, lost data, or downtime costs), arising out of the use, inability to use, or the results of use of the software, whether based in warranty, contract, tort or other legal thory, and whether or not advised of the possibility of such damages. Your use of the software is entirely at your own risk. Should the software prove defective, you assume the entire cost of all service, repair, or correction. |
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| 13) | Warranty: Goods under manufacturer warranty are covered only by that warranty, and no additional warranty, either expressed or implied, is made by encomPOS. No warranty is made, either expressed or implied, that goods supplied by encomPOS are suitable for a specific task, nor that the products supplied, or the features or the operations thereof will match the Customer's personal tastes or preferences, merely that goods are supplied in working order. Similarly, matters of compatibility between products are not the responsibility of encomPOS, including but not limited to networks, software, and separate peripheral devices, whether or not such goods were provided by encomPOS, unless an undertaking has been given in writing by encomPOS that the goods supplied were specifically intended to work in conjunction with each other, rather than independently, and that encomPOS will assume responsibility to ensure that they will operate together. |
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| 14) | Induction & Mode of Operation: The customer should be aware that a certain amount of learning time in inevitable with a computer system, that there may be problems associated with the introduction, operation, and upgrading of a system, and that time may need to be expended by the customer in order to overcome such problems. To minimise the consequences of initiating a system it is vital that the customer tests the software with the customer's own sample data and run any existing system in parallel with the new encomPOS software (including any new encomPOS upgrades supplied) until the customer is fully satisfied with the new system's operation and the abilities of the customer's staff to use it. Under no circumstances can encomPOS be held responsible for damages, claims for loss of income or consequential loss. Whilst we will make reasonable endeavours to help within the encomPOS Care support contract in force, encomPOS cannot be expected to resolve problems without investment of time. encomPOS may not be held liable for the specification claims made by the manufacturer or supplier of any products, and any claims concerning specification details or promises made verbally or in writing by a party other than encomPOS should be addressed to the publisher of such specifications or promises. encomPOS does not guarantee to solve all induction or operation problems, and reserves the right to charge for work carried out in pursuit of their resolution. Speed and manner of operation, speed of networks, processing and output (on a printer or other form of output device) are all subject to the constraints of technology and personal opinion. Each individual configuration may differ from similar configurations dependent on memory, CPU, network and software type, and numerous other factors. encomPOS can make no warranty that any facet of any products will operate at a certain speed or in a certain way. It is encomPOS’s recommendation that, where speed is important, the fastest possible configuration is purchased. If speed is at any time considered insufficient, encomPOS will endeavour to recommend a suitable upgrade, where available, or will recommend that the Customer communicate direct with a suitable third-party supplier. |
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| 15) | Returns: Goods may be returned to encomPOS with the prior written approval from encomPOS. These goods must be undamaged, in their original packaging and in a resalable condition. Any damaged products must be paid for at its full retail value. encomPOS reserves the right to charge on rental of any goods for the period after delivery from encomPOS and before return to the customer according to the provisions of paragraph 14 below. encomPOS also reserves the right to levy a charge for installation and removal of products, at encomPOS’s prevailing hourly rate, in addition to a minimum callout charge for each visit made by encomPOS’s servants or agents, and the customer shall forfeit any deposit paid, or any payment or part-payment made. Without prejudice to the foregoing, unless there is a legitimate reason for return, concerning the merchantable quality of the goods supplied by encomPOS, encomPOS reserves the right to charge the customer the full retail value of any goods cancelled or goods returned. |
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| 16) | Rental: Rental of goods are charged at a monthly rate not exceeding 20% of the full retail value of the goods supplied by encomPOS at the time the order was placed by the customer. A minimum callout charge will be levied for each visit made by encomPOS’s servants or agents, and work required for installation or removal of the products may be charged at the prevailing hourly rate. It is the customers responsibility to inform encomPOS at all times of the whereabouts of products on rental from encomPOS, and of any changes in such whereabouts. Unless specifically agreed in writing by encomPOS, products should not be moved from the site where they were originally installed, unless transport and reinstallation are carried out by encomPOS’s servants or agents. Such work is chargeable at the prevailing hourly rate, plus a minimum callout fee for each visit made. All products supplied by encomPOS remain the property of encomPOS or its agent, and must be returned on demand. Should the customer not return the goods within the specified rental period, or should encomPOS request return of the goods and the customer not comply within three days, encomPOS reserves the right to charge a premium rate not exceeding 5% of the full retail value of the goods supplied by encomPOS at the time of order, and for each day return of the products is overdue, unless an extension to the rental period is agreed in writing by encomPOS. The customer is responsible at all times for the care of products whilst in its custody, and will be charged for any damage, howsoever caused, during the period of that custody. The customer may not loan products on rental to any other party or a assign rental of the products to another party, unless such change is agreed by encomPOS. |
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| 17) | Software Copyright: The customer hereby acknowledges that it its sole responsibility to comply with any terms and conditions of licence attached to software designed by encomPOS, or third-party software supplied by encomPOS (including, if so required, the execution and return of a encomPOS or a third-party software licence). The customer is hereby notified that failure to comply with such terms and conditions could result in the customer being refused a software licence, or having the same revoked by the proprietary owner. The customer further agrees to indemnify encomPOS in respect of any costs, charges, or expenses incurred by encomPOS at the suit of a third-party software owner as a result of any breach by the customer of any conditions. All software developed by encomPOS or its agents remain the sole copyright of encomPOS. |
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| 18) | Telecommunications Equipment: When the goods supplied by encomPOS are to used in conjunction with a telecommunications network, such as that operated by British Telecom then the following conditions shall apply:
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| 19) | Courses, Product Briefings, Seminars and Consultancy: encomPOS’s Course Directory contains specifications of each course. Delegates are advised to ensure that the course level selected is suitable to their requirements. encomPOS reserves the right to amend its published course or seminar schedule at any time or to postpone or cancel any course or seminar. In the event that encomPOS has to take such action delegates will be offered an alternative replacement. If no alternative date can be offered, any fee paid will be refunded in full. Cancellations by the Customer can only be accepted if confirmed in writing one month prior to the course or seminar date. Substitutions are acceptable at any stage and delegates may opt to postpone, as long as they give the course secretary due warning at least one month in advance of the course or seminar date. If cancellation or postponement by the customer is received within the specified one month encomPOS reserves the right to make an administration charge of 50% of the full fee. All training or Consultancy invoiced by encomPOS to the customer must be paid for at the full rate agreed, unless a special written agreement has been made, mutually agreed by both parties before commencement of the training or Consultancy, as to a minimum achievement or performance level expected by the customer on completion of the training or Consultancy. |
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| 20) | Support: The encomPOS Help desk provides support by telephone during normal office hours. Support is provided under the provisions of a encomPOS Care Contract, which becomes active as soon as a correct, signed service contract covering all software supplied is returned to encomPOS with the full remittance. Support may be suspended where payment for any item has not been received according to encomPOS’s payment terms, or where the encomPOS Care Contract in force does not cover all software supplied. Callout to the customer's premises is not normally provided by encomPOS, and will normally be provided by a contracting agent. Site visits at the customer's request will be charged at the prevailing hourly rate for time on site and travelling time plus expenses. A call-out fee may also be charged, whether or not a fault was found or rectified. Unless the customer informs encomPOS at least 24 hours in advance that he wishes to cancel the visit, or such cost is covered by the provisions of a special service contract. If a contract is allowed to lapse for a period, payment for the resulting back log will be required by encomPOS before resumption of contract and despatch of upgrades. All contract support work is subject to the terms laid down in the various levels of encomPOS Care agreement, and excludes responsibility for issues which would be better resolved by training, responsibility for matters relating solely to third parties including ACI and 4th Dimension, or for data corruption or data loss. It is vital to back up all data at least once every day, and encomPOS assumes no responsibility for backups or data security. encomPOS software upgrades are supplied under contract where the customer is covered by a suitable contract, where payment is up-to-date, and where payment for the contract is made by Standing Order. Without prejudice to the conditions of those contracts, all maintenance agreements are automatically renewed, and may only be terminated after the contract expires with three months' notice from either party. |
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| 21) | Force Majeure: If the performance of its obligation under this contract is in any way adversely affected by any cause whatsoever beyond encomPOS’s control, including, but not limited to the delays, contractual conditions or defaults of suppliers or the default of any subcontractor, agents, war, trade dispute, strike, lock-out, government restriction, breakdown, flood, accident, act of God, shortage of materials or labour, encomPOS shall: (a) In any event not be liable for any direct or indirect loss or damage, and |
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| 22) | Cancellation: Without prejudice to any of the other conditions contained herein, no contract or order may be cancelled or rescheduled without encomPOS’s written consent, and in the event that cancellation or rescheduling is agreed for whatever reason, the customer shall indemnify encomPOS against all costs, claims, loss and expenses occasioned thereby including any consequential loss and loss of profits. Any deposits paid shall therefore be forfeited by the customer, and encomPOS reserves the right to levy a rental fee (in accordance with the provisions or paragraph 14 above) if any goods have been delivered to the customer. |
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| 23) | Waiver: No forbearance, delay, or indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that third party, and no waiver of any such rights or any breach of any contractual terms shall be deemed to be a waiver of that term, of any other right or any later breach. These conditions cannot be waived by any party, unless in a subsequent edition of encomPOS’s Conditions of Sale published by encomPOS. |
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| 24) | Limitation of Damages: encomPOS cannot be held liable for problems caused by computer virus or any other factor whose provenance is outside encomPOS’s direct cause. Under no circumstances, and without prejudice to the foregoing, (save in respect of death or injury to a person resulting from encomPOS’s, or encomPOS employees', agents', or subcontractors' negligence) shall encomPOS’s liability for damage of any kind, including consequential losses exceed the invoiced value of the goods supplied by encomPOS. |
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| 25) | Legal Construction: These conditions and contract to which this document relates shall in all respects be construed and operate in accordance with English Law. The legitimacy of any individual clause or element thereof shall not prejudice that of any other clause or element thereof in this contract. These conditions do not seek to prejudice in any way either party's statutory rights. |