BETTER-IT LIMTED – TERMS OF SALE AND SUPPLY

1 Interpretation

1.1 In these Terms:

“CARRIER” means the company, firm, person or third party which is to provide the Broadband ADSL and/or wireless connection to the Buyers Site as stated on the Order;

“BUYER” means the person who accepts the Seller’s Written quotation for the sale of the Goods or whose Written order for the Goods is accepted by the Seller by completing the Order Form and/or completing a Purchase Order Form;

“GOODS AND SERVICES” means the goods (including any instalment of the goods or any parts for them) and any services (and/or instalment of the services) as specified on the Order which the Seller is to supply in accordance with these Terms;

“SELLER” means Better-IT Limited (registered in England under number 05050038);

“SITE” means the Buyers Site where the Goods and Services are to be received as nominated by the Buyer in the Order

“CONTRACT” means the contract for the sale and purchase of the Goods;

“ORDER” means the Sellers order form incorporating these Terms or Purchase Order generated from a quotation incorporating these terms.

“TERMS” means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Buyer and the Seller;

“WRITING”, and any similar expression, includes facsimile transmission and comparable means of communication, but not electronic mail.

1.2 A reference in these Terms to a 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 Terms are for convenience only and shall not affect their interpretation.

2 Basis of the sale and supply

2.1 The Order constitutes an agreement by the Buyer to purchase the Goods and Services subject to these Terms.

2.2 The Seller shall sell and the Buyer shall purchase the Goods and Services in accordance with the Seller’s Written quotation (if accepted by the Buyer), or the Buyer’s Written order (if accepted by the Seller), subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms 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 Buyer.

2.3 The Order will lapse unless unconditionally accepted by the Seller in Writing within seven days of its date.

2.4 No variation to these Terms or any changes and/or additions to the Goods and Services shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.

2.5 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.

2.6 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods and Services which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.

2.7 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

2.8 Any Broadband connection installed under the Contract is subject to the standard terms and conditions of the Carrier

3 Orders and specifications

3.1 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods and Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

3.2 The quantity, quality and description of the Goods and Services and any specification for them shall be as set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).

3.3 If any process is to be applied to the Goods and Services by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of, any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.

3.4 The Seller reserves the right to make any changes in the specification of the Goods and Services which are required to conform with any applicable safety statutory or E.U. requirements or, where the Goods and Services are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.

3.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

4 Price of the goods and services

4.1 The Price of the Goods and Services shall be as stated in the Order form and, unless otherwise so stated, shall be exclusive of any applicable Value Added Tax (“VAT”)

4.2 Unless a fixed price has been agreed in Writing, the Seller reserves the right, by giving Written notice to the Buyer at any time before delivery, to increase the price of the Goods and Services to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials, increase in charges by the Carrier or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods and Services which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

4.3 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.

5 Terms of payment

5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller a deposit of 50% (100% for new clients) of the total price for the Goods and Services as stated on the Order shall be paid by the Buyer to the Seller prior to delivery and/or installation of any of the Goods and Services

5.2 Should the Carrier confirm to the Seller that the Buyers Site is not currently capable of receiving the Broadband service, any such deposit paid by the Buyer in accordance with clause 5.1 above shall be returned to the Buyer within 30 days of the Seller receiving such Written confirmation from the Carrier, subject to the deduction of an administration fee of £20.00 plus any applicable VAT;

5.3 The Seller may invoice the Buyer for the price of the Goods and Services on or at any time after delivery of the Goods and Services, unless the Goods and Services are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods and Services, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods and Services are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods and Services.

5.3.1 In the event the Buyer notifies the Seller that any services are to be ceased or transferred to a different supplier. All outstanding invoices will become immediately due overriding any credit facilities that might have been agreed previously.

5.4 Any queries with an invoice must be made in writing within seven days from date of invoice, else the full value of the invoice will be due on the due date.

5.5 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:

5.5.1 cancel the contract or suspend any further deliveries of Goods and Services to the Buyer;

5.5.2 appropriate any payment made by the Buyer to such of the Goods and Services (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer).

5.5.3 suspend any and all other services provided to the Buyer and charge £200 + VAT admin fee plus a £90 + VAT per service re-connection charge to any and all services suspended before re-connection; and

5.5.4 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 8 per cent above the Bank of England 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); and

5.5.5 replace any and all websites with a notice that the account is in default. Set an auto-responder on all email addresses responding to incoming emails to notify the sender that the account is in default and that emails are not being delivered.

5.6 The Buyer shall pay the price of the Goods and Services (less any discount to which the Buyer is entitled, but without any other deduction) within 28 days of the date of the Seller’s invoice if Credit Terms have been agreed in writing, else payment is due on delivery/installation. The Seller shall be entitled to recover the price, notwithstanding that delivery and installation may not have taken place and the property in the Goods and Services has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.

5.7 All payments to Better-IT will be made via Direct Debit. Please note that Better-IT Limited has appointed the BACS Approved Direct Debit Bureau; GoCardless Limited to collect your payments and GoCardless will be shown on your bank statement.

5.8 If paying by direct debit and your direct debit is returned as unpaid, we reserve the right to add an administration charge of £150 to cover our costs. If a direct debit is cancelled by yourselves, the bank or an indemnity claim is made, we reserve the right to re-charge all costs incurred as well as any compensation deemed reasonable to cover any loss in reputation, financial or otherwise, in addition to the £150 administration charge.

6 Delivery

6.1 If the Goods are sold as a self-install product. The Seller should have no liability if the Buyer fails to follow the self-install instructions.

6.2 Any dates quoted for delivery and/or installation of the Goods and Services are approximate only and the Seller shall not be liable for any delay in delivery and/or installation of the Goods and Services however caused. Time for delivery and/or installation shall not be of the essence of the Contract unless previously agreed by the Seller in Writing. The Goods and Services may be delivered and/or installed by the Seller in advance of the quoted delivery and/or installation date on giving reasonable notice to the Buyer.

6.3 Where the Goods and Services are to be delivered and/or installed in instalments, each delivery and/or installation shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

6.4 If the Seller fails to deliver and/or install the Goods and Services (or any instalment) for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods and/or services to replace those not delivered over the price of the Goods and Services.

6.5 If the Buyer fails to take delivery of and/or allow installation of the Goods and Services or fails to give the Seller adequate delivery or installation instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without limiting any other right or remedy available to the Seller, the Seller may:

6.5.1 store and/or not perform the installation of the Goods and Services until actual delivery and installation and charge the Buyer for the reasonable costs (including insurance) of storage and/or non-performance; or

6.5.2 sell the Goods and Services at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

7 Risk and property

7.1.1 Risk of damage to or loss of the Goods and Services shall pass to the Buyer on delivery.

7.2 Notwithstanding delivery and the passing of risk in the Goods and Services, or any other provision of these Terms, the property in the Goods and Services shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and Services and all other goods and services agreed to be sold by the Seller to the Buyer for which payment is then due.

7.3 Until such time as the property in the Goods and Services passes to the Buyer, the Buyer shall hold the Goods and Services as the Seller’s fiduciary agent and bailee, and shall keep the Goods and Services separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property, but the Buyer may use the Goods and Services in the ordinary course of its business.

7.4 Until such time as the property in the Goods and Services passes to the Buyer, the Seller may at any time require the Buyer to deliver up the Goods and Services to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer including the Site or any third party where the Goods and Services are stored and disconnect and/or repossess the Goods and Services.

7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods and Services which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.

8 Installation

8.1 The Buyer acknowledges that it is technically impracticable to guarantee fault free Goods and Services and the Seller does not undertake to do so.

8.2 The Buyer acknowledges that during the supply and installation of the Goods and Services the Buyer may experience a temporary loss of telephone service, and/or interference to any other related services, which shall be reinstated following supply. The Seller shall not be liable for any loss, interruption or interference during supply and/or installation.

8.3 The Seller shall use its reasonable endeavours to comply with the Buyers reasonable requests in respect of installation but the Seller”s and/or the Carrier”s decision on the routing of cables and wires and the positioning of outlets and other apparatus constituting the Goods and Services shall be final and binding.

8.4 To allow the supply and installation of the Goods and Services at the Site, the Buyer will, prior to any installation work for the Goods and Services, at the Buyers expense:

8.5 Obtain all necessary consents for any necessary alterations to the Site; and

8.6 Take up or remove any fitted or fixed floor coverings, ceiling tiles, suspended ceiling and partition covers as the Seller or the Carrier advises are necessary and carry out afterwards any making good or decorators work required; and

8.7 Provide electricity connection and other service points required by the Seller

8.8 The Buyer shall at its own expense provide suitable accommodation, assistance, facilities and environmental conditions for any Goods and Services and all necessary electrical and other installation and fittings.

8.9 The Buyer is to provide the necessary electricity supply and associated facilities that are required for the safe and normal supply, and subsequent use of the Goods and Services.

9 Warranties and liability

9.1 Subject to the following provisions the Seller warrants that the Goods and Services will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from the date of their initial use or 12 months from delivery, whichever is the first to expire.

9.2 The above warranty is given by the Seller subject to the following conditions:

9.2.1 the Seller shall be under no liability in respect of any defect in the Goods and Services arising from any drawing, design or specification supplied by the Buyer;

9.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods and Services without the Seller’s approval;

9.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for all outstanding Goods and Services has not been paid by the due date for payment;

9.2.4 the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.

9.2.5 Should the Buyer allow any other 3rd party access to the goods or services provided without written permission from the Seller, then all future works and warranty for Goods and Services will not be upheld until a full audit of all equipment, configurations, licenses and all other Goods and Services and any remedial works have been carried out.

9.3 Subject as expressly provided in these Terms, and except where the Goods and 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.

9.4 A claim by the Buyer which is based on any defect in the quality or condition of the Goods and Services or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and Services and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods and Services had been delivered in accordance with the Contract.

9.5 Where a valid claim in respect of any of the Goods and Services which is based on a defect in the quality or condition of the Goods and Services or their failure to meet specification is notified to the Seller in accordance with these Terms, the Seller may replace the Goods and Services (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods and Services (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer.

9.6 Except in respect of death or personal injury caused by the Seller’s negligence, or liability for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods and Services (including any delay in supplying or any failure to supply the Goods and Services in accordance with the Contract or at all) or their use or resale by the Buyer or customer of the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods and Services, except as expressly provided in these Terms.

9.7 The Seller shall not be liable to the Buyer 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 Seller’s obligations in relation to the Goods and Services, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:

9.7.1 Act of God, explosion, flood, tempest, fire or accident;

9.7.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;

9.7.3 acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

9.7.4 import or export regulations or embargoes;

9.7.5 strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);

9.7.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;

9.7.7 power failure or breakdown in machinery.

10 Insolvency of buyer

10.1 This clause applies if:

10.1.1 the Buyer makes or proposes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

10.1.2 an encumbrancer takes possession, or a receiver or administrative receiver is appointed, of any of the property or assets of the Buyer; or

10.1.3 the Buyer ceases, or threatens to cease, to carry on business, or

10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

10.2 If this clause applies then, without limiting any other right or remedy available to the Seller, the Seller may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods and Services have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

11 Support Agreements

11.1 A support agreements are provided on a best effort agreement unless a Service Level Agreement has been agreed in writing.

11.2 The Seller reserves the right to charge for any and all hours spent carrying out support over and above the agreed number of hours in the monthly agreement.

11.3 Out of hours support, unless included part of the written support agreement will be charged depending on the time of the support. Support carried out on a weekday between 8am to 9am and 5.30pm to 7pm is charged at double the standard hourly support rate. Weekday support between 7pm and 8am the following day is charged at triple the standard hourly support rate. Saturday out of hours support is charged at double the standard hourly support rate and Sunday and bank holiday support is charged at triple the standard hourly support rate.

12 General

12.1 A notice required or permitted to be given by either party to the other under these Terms 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.

12.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

12.3 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.

12.4 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.

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