(applicable from 15 November 2005)
(A) These Terms and Conditions govern the sale and supply of all Products
by Upgrade Options Limited and every quotation, pro-forma invoice, price
list or other similar documentation made or issued by the Company is subject
to these Terms and Conditions. In the event that the customer is acting
as a consumer, the customer should take note of his/her rights set out
in Clause 16.
(B) All services offered by the Company, including maintenance and support,
training and education, and consultancy services are not Products to which
these Terms and Conditions apply, but are supplied on the terms and conditions
contained in the relevant agreements.
1.1 In these Terms and Conditions the following terms shall, unless the
context otherwise requires have the meanings set out below:
"Company" means Upgrade Options Limited, a company incorporated
in England whose registered office is at Clocktower, Greenhills Rural Enterprise Centre, Greenhills Estate, Tilford, Surrey, GU10 2DZ.
"Contract" means any agreement between the Company and the customer
for the supply of Products, which expressly or by implication incorporates
these Terms and Conditions.
"Customer" means the applicant or holder of an account with
the Company or the person who orders or agrees to buy Products from the
Company, as the case may be.
"Hardware" means the hardware components of products sold by
the Company including all ancillary equipment, accessories, spares, supplies
and related documentation.
"Invoice" shall mean the invoice issued by the Company to the
"Price" shall mean the total price for the Products as specified
in the Invoice.
"Products" means the Company's products including but not limited
to Hardware, Software and any configuration of Hardware and/or Software.
"Software" means any operating system, utility or applications
software delivered by the Company in machine readable object, printed,
interpreted or any other form whatsoever and either incorporated with
Hardware or separately supplied, including related documentation.
No order placed by a Customer resulting from any quotation, pro-forma
invoice, price list, advertisement or other similar document made or issued
by the Company shall be binding unless and until it is accepted in writing
by the Company. The Company at its absolute discretion may accept or reject
3.1 Applicable taxes, import duties and other dues are not included in
the Price and will be charged in addition unless agreed otherwise. Value
Added Tax (VAT) will be charged at the rate applicable at the date of
3.2 Payment of the Price or any part thereof and any other amount due
under the Contract must be made within 30 days from the date of an Invoice
(unless otherwise specified by the Company). The contents of the Invoice,
including inter alia the Price, shall in the absence of a manifest error,
be deemed to have been accepted by the Customer unless the Customer has
notified the Company in writing within 7 days from the date of the invoice
that such contents are disputed. Unless otherwise agreed, payment shall
be made in pounds sterling, without set-off, deduction or withholding.
All payments which are not received when payable shall be considered overdue
and the Company reserve the right to charge interest in accordance with
the Late Payment of Commercial Debts (Interest) Act 1998.
4.1 The "Delivery Address" shall mean the address specified
by the Customer to the Company in writing at the time of placing an order
as being the address for delivery of the Products and the "Delivery
Date" shall mean the date for delivery as specified by the Company
to the Customer.
4.2 Delivery will be effected at the Delivery Address and it is the Customer's
responsibility to ensure that the Delivery Address is suitable for delivery
of the Products.
4.3 The Delivery Date is approximate only and not of any contractual effect.
The Company will use all reasonable endeavours to meet the Delivery Date
but it will not be liable for loss or damage (including loss of use, loss
of contract or loss of profits) incurred by the Customer as a result of
any failure to deliver on a particular date.
4.4 Each delivery of Products under the Contract will be deemed to constitute
a separate enforceable contract to which these Terms and Conditions will
4.5 If the Customer refuses or fails to take delivery of Products tendered
in accordance with the Contract, delivery will nevertheless be deemed
to have taken place for the purpose of the Company's right to payment
and the Company will be entitled to store the Products at the Customers
risk and expense, including all transportation charges.
4.6 The Customer shall inspect the Products on delivery and shall within
48 hours of delivery notify the Company of any alleged shortage in quantity,
damage or failure to comply with description or sample. If the Customer
fails to notify the Company within such time the Products shall be conclusively
presumed to be in accordance with the Contract.
4.7 If the quantity of Products are not in accordance with the Contract
the sole remedy shall be limited to the Company making good any shortage
by replacing such Products or if the Company shall elect by refunding
a proportionate part of the Price.
5.1 The Company reserves the right to make improvements, substitutions
or modifications to any part of the Products at any time prior to delivery
provided that such improvements, substitutions or modifications will not
materially affect the performance of such Products and provided that any
substitutions are of an equivalent quality and price.
5.2 The Company further reserves the right to change the Delivery Date
and increase the price of the Products at any time prior to delivery,
to reflect any increase in the cost to the Company which is due to any
factor beyond the Company's control.
5.3 No order which has been accepted by the Company may be cancelled by
the Customer except with the prior written consent of the Company and
the Customer shall indemnify the Company in full against all loss (including
loss of profit), damages, charges, expenses and costs (including the cost
of all labour and materials used) incurred by the Company as a result
of such cancellation.
6.1 The Products will be at the risk of the Customer from the time of
6.2 Title to the Products will remain vested in the Company until the
Price (and all taxes and other charges due under the Contract) have been
paid in full. Upon such payment title to any Hardware supplied under the
Contract will pass to the Customer.
6.3 No title or ownership of any Software supplied under the contract
and licensed to the Customer under any License Agreement (as defined below)
is transferred to the Customer.
6.4 Until such time as title in the Products passes to the Customer, the
Customer shall hold the Products as the Company's fiduciary agent and
bailee, and shall keep the Products separate from those of the Customer
and third parties and properly stored, protected and insured and identified
as the property of the Company. Until that time the Customer shall be
entitled to resell or use the Products in the ordinary course of its business
but shall account to the Company for the proceeds of sale or otherwise
of the Products, whether tangible or intangible, including insurance proceeds,
and shall keep all such proceeds separate from any monies or property
of the Customer and third parties and in the case of tangible proceeds
properly stored, protected and insured.
6.5 Until such time as title in the Products passes to the Customer and
provided the Products are still in existence and have not been resold,
the Company shall be entitled at any time to require the customer to deliver
up the Products to the Company, and if the Customer fails to do so forthwith
to enter upon any premises of the Customer or any third party where the
Products are stored and repossess the Products.
6.6 The Customer shall not be entitled to pledge or in any way charge
by way of security or any indebtedness any of the Products which remain
the property of the Company but if the Customer does so all monies owing
by the Customer to the Company shall (without prejudice to any other right
or remedy of the Company) forthwith become due and payable.
7.1 Copyright subsists in all software whether it is the Company's proprietary
software or software supplied by the Company under license. All Software
is supplied to the Customer only under the terms and conditions of the
applicable License Agreement (whether this has been signed and/or returned
to the Company or not). No part of the Software may be copied, reproduced
or utilized in any form by any means without the prior written approval
of the Company.
7.2 It is the sole responsibility of the Customer to comply with all the
terms and conditions of any License Agreement and the Customer is hereby
notified that any failure to comply with such terms and conditions may
result in the revocation of such License Agreement.
7.3 Software is warranted in accordance with and only to the extent of
the terms of any License Agreement governing its supply.
7.4 For the purposes of this clause "License Agreement" means
the terms and conditions governing the supply of software whether the
Company's own software or third party software which the Company is authorised
to supply to the Customer.
Returns & Exclusions
8.1 The Company warrants that it has good title to or the legal right
to supply all Hardware supplied to the Customer. Except as expressly stated
to the contrary in these Terms and Conditions (including but not limited
to clause 16.2), all warranties, conditions and other terms implied by
statute or common law are excluded from the Contract to the fullest extent
permitted by law.
8.2 Hardware is warranted in accordance with any manufacturer's warranty
supplied and in the event of the Hardware being covered by a manufacturer's
warranty the Customer's sole remedy will be a claim pursuant to the terms
of such manufacturer's warranty..
8.3 In the event that no manufacturer's warranty applies then the Hardware
is warranted by the Company against defects in workmanship and materials
for a period of 90 days from the date of delivery and the sole obligation
of the Company under such warranty will be limited to the use of all reasonable
efforts to repair or replace at its option any Hardware which proves defective
during the warranty period provided that:
8.3.1 the Company has been notified within such warranty period of such
8.3.2 the Company has issued a Returned Materials Authorisation Number
("RMA Number") in accordance with the Company's applicable procedures;
8.3.3 such defective Hardware has been returned to the Company undamaged,
complete with the original packaging and clearly marked with the RMA Number
within 7 days of being notified as to the RMA Number.
8.4 The Company will only issue an RMA Number in the event that every
opportunity has been given to investigate and resolve such defect having
reasonably used all its technical resources. All replaced Hardware or
parts will become the Company property. The warranty service will be performed
at a repair facility designated by the Company.
8.5 Where, as part of a valid claim under Clause 8.3, any Product is to
be returned to the Company, the expense, responsibility and risk of delivering
the Product to the Company shall be borne by the Customer. The Company
shall assume the expense and responsibility of redelivering the Products
to the Customer. In any case where the Company reasonably determined that
the Hardware is not defective within the terms of the warranty, the Customer
will pay the Company all costs of handling, transportation and repairs
at the Company's then prevailing rates.
8.6 The stated warranties apply only to the Customer and not the end user
of the Hardware and are contingent upon proper treatment and use of the
Product with no unauthorised modifications having been undertaken or attempted
and upon the storage of the Product under safe and suitable conditions.
8.7 The Customer will be solely responsible for installation and training
and the Company disclaims all liability in this regard.
8.8 Where the Hardware includes data communication equipment and data
transmission speeds are given in relation to any item of Hardware, these
are at all times subject to any conditions of the applicable telecommunications
utility provider relating to the use of the relevant modem at the speeds
indicated and to the capability of any of that provider's equipment to
which the Hardware is linked.
8.9 Where the Hardware is installed for use in conjunction with other
products not supplied by the Company the Customer will be solely responsible
for ensuring that the Products are compatible with such other products,
and the Company disclaims all liability in this connection.
8.10 The supply of Hardware to the Customer does not convey any ownership
of or license to exploit any of the proprietary rights of the Company
in the Hardware. Any such proprietary rights granted to the Customer by
the Company will be granted only subject to a separate restrictive, non-transferable,
non-exclusive license agreement. All operating instructions, manuals and
other documentation referencing the Hardware and supplied by the Company
are subject to copyright and shall not be copied or disclosed to any third
party without the prior written consent of the Company or the copyright
owner, as the case may be.
9.1 Subject to Clause 9.2:
9.1.1 the Company's total liability in contract, tort (including negligence
or breach of statutory duty), misrepresentation, restitution or otherwise
shall be limited to the Price where such liability arises from or in connection
a) any breach of these Terms and Conditions;
b) any use made or resale by the Buyer of any of the Products, or of anything
incorporating any of the Products;
c) any representation, statement or tortuous act or omission including
negligence arising under or in connection with the Contract;
d) the performance or contemplated performance of the Contract.
9.1.2 the Company shall not be liable to the Customer for any pure economic
loss, loss of profit, loss of business, depletion of goodwill or otherwise,
in each case whether direct, indirect or consequential, or any claims
for consequential compensation whatsoever (howsoever caused) which arise
out of or in connection with the Contract.
9.2 Nothing in these Terms and Conditions excludes or limits the liability
of the Company:
9.2.1 for death or personal injury caused by the Company's negligence,
9.2.2 under Section 2(3) of the Consumer Protection Act 1987, or;
9.2.3 for any matter which it would be illegal for the Company to exclude
or attempt to exclude its liability, or;
9.2.4 for fraud or fraudulent misrepresentation.
The Company shall not be liable for failure to perform its obligations
in the event such performance is prevented or hindered by reasons of Force
Majeure. For the purposes of this clause, "Force Majeure" shall
mean all causes or circumstances beyond the reasonable control of the
Company (including without prejudice to the generality of the foregoing
any delays arising from the act, omission or default of any of the Company's
suppliers or sub-contractors).
And Re-Export Limitation
Notwithstanding anything to the contrary in these Terms and Conditions,
delivery of some or all of the Products may be subject to the Company
or its suppliers obtaining the required export license or other authorisation
from the appropriate governmental authority.
12. Telecommunications Requirements
When computer equipment is connected to a public network, ie a switchboard
or telephone network, certain regulations of the telecommunications provider
apply. It is the sole responsibility of the Customer to ensure compliance
with such regulations.
The Products are designed for standard commercial use and are not intended
to be installed or used in hazardous or life-threatening environments
or for potentially life-endangering applications, including but not limited
to environments or applications involving safety critical systems in the
nuclear industry or the control of aircraft in the air. The Customer undertakes
not to use or supply the Products for any of these purposes and agrees
to indemnify and hold the Company harmless from and against all liabilities
and related costs arising out of the use of any of these purposes.
The Contract shall be subject to and interpreted with English law and
the parties hereby irrevocably submit to the exclusive jurisdiction of
the English Courts in all matters arising out of the Contract.
15.1 This Contract constitutes the entire agreement between the parties
with regard to the sale and supply to the Customer of Products. Each party
confirms that it has not relied upon any representation not recorded in
this document inducing it to enter into the contract.
15.2 No variation of these terms and conditions will be valid unless confirmed
in writing by authorised signatories of both parties on or after the date
of the contract.
15.3 The Customer shall not assign its rights or obligations under the
Contract except with the prior written consent of the Company.
15.4 Failure by either party at any time to enforce any of the provisions
of the Contract shall not be construed as a waiver by that party of any
such provisions nor in any way affect the validity of the contract.
15.5 In the event that any or part of the Contract shall be determined
invalid, unlawful or unenforceable to any extent, such term, condition
or provision shall be severable from the remaining terms conditions and
provisions which shall continue to be valid and enforceable to the fullest
extent permitted by law.
15.6 Any notice to be served by either party pursuant to the Contract
is to be sent by registered mail or hand delivery to the other party's
address as specified in the Invoice.
16.1 In the event that the Customer is a consumer then this Clause 16
shall apply and shall take precedence in the event of any conflict with
any other provision of these Terms and Conditions. For the purposes of
this clause the term "consumer" shall mean a private person
buying Products for private use.
16.2 Nothing in these Terms and Conditions shall affect any statutory
rights of the Customer as a consumer.
16.3 In the event that the Customer is a consumer and has purchased Products
from the Company without face to face contact, the Customer may cancel
the purchase within 7 working days of delivery of the Products by written
notice to the Company.
16.4 Should the Customer cancel the Contract in accordance with this Clause,
the Customer must return the Products to the Company together with the
original packaging and, except where the products were substitutes for
those ordered by the Customer (in which event the Company will bear the
cost of returning the Products), at the cost of the Customer. Where the
Customer returns the Products he/she must ensure that the Products are
properly and securely packed so as to avoid damage in transit. Prior to
returning the Products, the Customer should obtain a Returned Materials
Authorisation Number ("RMA Number") by contacting the Company's
Customer Services Manager. The number must be quoted on all returned Products
in order that they may be properly identified. The Company cannot be held
responsible for Products returned without an RMA Number.
16.5 The right to cancel under Clause 16.3 does not apply to Products
made to the Customer's specifications nor to Software where the seal has
16.6 The Customer is hereby given notice that:
16.6.1 his/her Contract is with Upgrade Options Limited, Clocktower, Greenhills Rural Enterprise Centre, Greenhills Estate, Tilford, Surrey, GU10 2DZ, England, a limited company with
Company Registration Number 02873785. The Company's telephone number is
0871 231 1906 and the facsimile number is 0871 231 1913. In the event
that the Customer has any questions or complaints in relation to the Contract,
the Customer may address these to the Customer Services Manager at the
16.6.2 the description of the Products and their main characteristics,
the price, delivery costs and arrangements for payment, delivery or performance
by the Company of this Contract are set out as the case may be in the
Company's advertising materials and/or on the Company's website and/or
in any quotation or proforma invoice and/or in these Terms and Conditions
(and these Terms and Conditions take precedence in the event of any conflict).
16.7 In the event that the Customer cancels the Contract for the purchase
of the Products in accordance with Clause 16.3 above, the Company will
refund all monies paid by the Customer in that respect within 30 days
of the date of cancellation, provided that the Customer has returned the
Products to the Company in accordance with Clause 16.4 above. In the event
that the Company has to recover the products at its expense or the Customer
returns the Products at the Company's expense, then the Company shall
be entitled to deduct the direct costs thereof from the monies paid by
the Customer and refund the difference only.
17. Data Protection
17.1 Bv placing an order for Products with the Company the Customer consents
to the Company holding and processing any personal data which the Customer
may provide, consents to receive marketing communications (including by
e-mail) from the Company or any associated company or undertaking and
consents to the transfer of such personal data to an associated company
or undertaking whether in or outside the EEA. The Customer may instruct
the Company not to use the Customer's personal data for marketing purposes
by giving written notice to this effect to the Company at its address
17.2 The Company undertakes to comply with applicable data protection
laws in all processing of the Customer's personal data.
17.3 In deciding whether to accept your order we may use the information you have given to us, or we already hold about you, or which we receive from any enquiry we may make with Early Warning Uk Ltd, to confirm your identity. Early Warning Uk Ltd will check any details we disclose to them against any data bases (public or private) to which they have access and will keep a record of that check. Early Warning Uk Ltd will also retain this information and may use it in the future to assist other companies with identity verification. This assists us to protect you and us from fraudulent transactions.