SayItWhen's Terms and Conditions
ACCEPTANCE OF TERMS
The services that SayItWhen provides to you are subject to the following Terms of
Use ("TOU"). SayItWhen reserves the right to update the TOU at any time without
notice to you. The most current version of the TOU can be reviewed by clicking on
the "Terms of Use" hypertext link located at the bottom of our web pages
DESCRIPTION OF SERVICES
Through its network of Web properties, SayItWhen provides you with access to a variety
of resources, including tools, download areas, communication forums and
product information (collectively "Services"). The Services, including any updates,
enhancements, new features, and/or the addition of any new Web properties, are subject
to the TOU.
PERSONAL AND NON-COMMERCIAL USE LIMITATION
Unless otherwise specified, the Services are for your personal and non-commercial
use. You may not modify, copy, distribute, transmit, display, perform, reproduce,
publish, license, create derivative works from, transfer, or sell any information,
software, products or services obtained from the Services.
PRIVACY AND PROTECTION OF PERSONAL INFORMATION
See the Privacy Policy disclosures relating to
the collection and use of your information.
MEMBER ACCOUNT, PASSWORD, AND SECURITY
If any of the Services requires you to open an account, you must complete the registration
process by providing us with current, complete and accurate information as prompted
by the applicable registration form. You also will choose a password and a user
name. You are entirely responsible for maintaining the confidentiality of your password
and account. Furthermore, you are entirely responsible for any and all activities
that occur under your account. You agree to notify SayItWhen immediately of any
unauthorized use of your account or any other breach of security. SayItWhen will
not be liable for any loss that you may incur as a result of someone else using
your password or account, either with or without your knowledge. However, you could
be held liable for losses incurred by SayItWhen or another party due to someone
else using your account or password. You may not use anyone else's account at any
time, without the permission of the account holder.
NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the Services, you will not use the Services for any
purpose that is unlawful or prohibited by these terms, conditions, and notices.
You may not use the Services in any manner that could damage, disable, overburden,
or impair any SayItWhen server, or the network(s) connected to any SayItWhen server,
or interfere with any other party's use and enjoyment of any Services. You may not
attempt to gain unauthorized access to any Services, other accounts, computer systems
or networks connected to any SayItWhen server or to any of the Services, through
hacking, password mining or any other means. You may not obtain or attempt to obtain
any materials or information through any means not intentionally made available
through the Services.
USE OF SERVICES
The Services may contain e-mail services, bulletin board services, chat areas, news
groups, forums, communities, personal web pages, calendars, photo albums, file cabinets
and/or other message or communication facilities designed to enable you to communicate
with others (each a "Communication Service" and collectively "Communication Services").
You agree to use the Communication Services only to post and send messages and material
that are proper and, when applicable, related to the particular Communication Service.
By way of example, and not as a limitation, you agree that when using the Communication
Services, you will not:
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Use the Communication Services in connection with surveys, contests, pyramid schemes,
chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial
or otherwise).
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Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such
as rights of privacy and publicity) of others. If reported to us that these
sites are being misused we shall contact the relevant authorities
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Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory,
obscene, indecent or unlawful topic, name, material or information.
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Upload, or otherwise make available, files that contain images, photographs, software
or other material protected by intellectual property laws, including, by way of
example, and not as limitation, copyright or trademark laws (or by rights of privacy
or publicity) unless you own or control the rights thereto or have received all
necessary consent to do the same.
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Use any material or information, including images or photographs, which are made
available through the Services in any manner that infringes any copyright, trademark,
patent, trade secret, or other proprietary right of any party.
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Upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots,
corrupted files, or any other similar software or programs that may damage the operation
of another's computer or property of another.
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Advertise or offer to sell or buy any goods or services for any business purpose,
unless such Communication Services specifically allows such messages.
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Download any file posted by another user of a Communication Service that you know,
or reasonably should know, cannot be legally reproduced, displayed, performed, and/or
distributed in such manner.
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Falsify or delete any copyright management information, such as author attributions,
legal or other proper notices or proprietary designations or labels of the origin
or source of software or other material contained in a file that is uploaded.
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Restrict or inhibit any other user from using and enjoying the Communication Services.
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Violate any code of conduct or other guidelines which may be applicable for any
particular Communication Service.
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Harvest or otherwise collect information about others, including e-mail addresses.
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Violate any applicable laws or regulations.
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Create a false identity for the purpose of misleading others.
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Use, download or otherwise copy, or provide (whether or not for a fee) to a person
or entity any directory of users of the Services or other user or usage information
or any portion thereof.
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SayItWhen is under no obligation to monitor the Communication Services. However, SayItWhen
reserves the right to review materials posted to the Communication Services and
to remove any materials at its discretion. SayItWhen reserves the right to
terminate your access to any or all of the Communication Services at any time, without
notice, for any reason whatsoever.
SayItWhenreserves the right to disclose information as SayItWhen deemed necessary to satisfy any applicable law, regulation, legal process or governmental
request, or to edit, refuse to post or to remove any information or materials, in
whole or in part, in SayItWhen's sole discretion.
SayItWhen does not control
or endorse the content, messages or information found in any Communication Services
and, therefore, specifically disclaims any liability with regard to the
Communication Services and any actions resulting from your participation in any
Communication Services.
Materials uploaded to the Communication Services may be subject to posted limitations
on usage, reproduction and/or dissemination; you are responsible for adhering to
such limitations if you download the materials.
STANDARD TERMS AND CONDITIONS
FOR THE
SALE
OF GOODS
1.
Application of Conditions
The Seller shall sell and the Buyer
shall purchase the Goods in accordance with any quotation or offer of the Seller
which is accepted by the Buyer, or any order of the Buyer which is accepted by the
Seller, subject in either case to these Conditions, which shall govern the Contract
to the exclusion of any other terms and conditions subject to which any such quotation
is accepted or purported to be accepted, or any such order is made or purported
to be made, by the Buyer.
2.
Interpretation
2.1
In these Conditions:-
"Business Day"
means any day other than a Saturday, Sunday or bank holiday; and
"the Buyer"
means the person who accepts a quotation
or offer of the Seller for the sale of the Goods or whose order for the Goods is
accepted by the Seller;
"the Contract"
means the contract for the purchase and sale of the Goods
under these conditions;
"these
means the standard terms and conditions of sale set out in
Conditions"
this document and (unless the context
otherwise requires) includes any special terms and conditions agreed in writing
between the Buyer and the Seller;
"the Delivery
means the date
on which the Goods are to be delivered as
Date"
stipulated in the Buyer's order and accepted by the Seller;
"the Goods"
means the goods (including any instalment
of the goods or any parts for them) which the Seller is to supply in accordance
with these Conditions;
"month"
means a calendar
month;
"the Seller"
means BGA Warranty, a company registered in
England
;
"writing"
includes any communications
effected by telex, facsimile transmission or any comparable means.
2.2
Any reference in these Conditions to a statute or a
provision of a statute shall be construed as a reference to that statute or provision
as amended, re-enacted or extended at the relevant time.
2.3
The headings in these Conditions are for convenience
only and shall not affect their interpretation.
3.
Basis of
Sale
3.1
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, and waives any claim for breach
of, any such representations which are not so confirmed.
3.2
No variation to these Conditions shall be binding unless
agreed in writing between the authorised representatives of the Buyer and the Seller.
3.3
Sales literature, price lists and other documents issued
by the Seller in relation to the Goods are subject to alteration without notice
and do not constitute offers to sell the Goods which are capable of acceptance. An order placed by the Buyer may not
be withdrawn cancelled or altered prior to acceptance by the Seller and no contract
for the sale of the Goods shall be binding on the Seller unless the Seller has issued
a quotation which is expressed to be an offer to sell the goods or has accepted
an order placed by the Buyer by whichever is the earlier of:-
(a) the Seller's written acceptance;
(b) delivery of the Goods; or
(c) the Seller's invoice.
3.4
Any typographical, clerical or other accidental errors
or omissions 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.
4.
Orders and Specifications
4.1
No order submitted by the Buyer shall be deemed to be
accepted by the Seller unless and until confirmed in writing by the Seller's authorised
representative.
4.2
The specification for the Goods shall be those set out
in the Seller's sales documentation unless varied expressly in the Buyer's order
(if accepted by the Seller). The Goods
will only be supplied in the minimum units (or multiples) stated in the Seller's
price list or in multiples of the sales outer as specified.
Orders received for quantities other than these will be adjusted accordingly,
illustrations, photographs or descriptions whether in catalogues, brochures, price
lists or other documents issued by the Seller are intended as a guide only and shall
not be binding on the Seller.
4.3
The Seller reserves the right to make any changes in
the specification of the Goods which are required to conform with any applicable
safety or other statutory or regulatory requirements or, where the Goods are to
be supplied to the Seller's specification, which do not materially affect their
quality or performance.
4.4
No order which has been accepted by the Seller may be
cancelled by the Buyer except with the agreement in writing of the Seller on the
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.
5.
Price of Goods
5.1
The price of the Goods shall be the price listed in
the Seller's published price list current at the date of acceptance of the Buyer's
order or such other price as may be agreed in writing by the Seller and the Buyer.
5.2
Where the Seller has quoted a price for the Goods other
than in accordance with the Seller's published price list the price quoted shall
be valid for 30 days only or such lesser time as the Seller may specify.
5.3
The Seller reserves the right, by giving notice to the
Buyer at any time before delivery, to increase the price of the Goods 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
or other costs of manufacture), any change in delivery dates, quantities or specifications
for the Goods 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.
5.4
The Seller will allow the Buyer quantity discounts subject
to and in accordance with the conditions set out in the Seller's published price
list for the Goods current at the date of acceptance of the Buyer's Order.
5.5
Any settlement discount specified by the Seller in the
Contract will be allowed by the Seller to the Buyer in respect of Goods for which
payment is received by the Seller on or before the due date and otherwise in accordance
with the payment terms set out in these Conditions and provided that no other amounts
owing by the Buyer to the Seller are overdue and unpaid.
5.6
Except as otherwise stated under the terms of any quotation
or in any price list of the Seller, and unless otherwise agreed in writing between
the Buyer and the Seller, all prices are inclusive of the Seller's charges for packaging
and transport to the location in the United Kingdom specified in the Buyer's order.
5.7
The price is exclusive of any applicable value added
tax excise, sales or taxes or levies of a similar nature which are imposed or charged
by any competent fiscal authority in respect of the Goods, which the Buyer shall
be additionally liable to pay to the Seller.
5.8
The cost of pallets and returnable containers will be
charged to the Buyer in addition to the price of the Goods, but full credit will
be given to the Buyer provided they are returned at the Buyer's expense undamaged
to the Seller.
6.
Terms of Payment
6.1
Subject to any special terms agreed in writing between
the Buyer and the Seller, the Seller shall invoice the Buyer for the price of the
Goods on or at any time after delivery of the Goods, unless the Goods are to be
collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods,
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 are ready for collection
or (as the case may be) the Seller has tendered delivery of the Goods.
6.2
The Buyer shall pay the price of the Goods (less any
discount or credit allowed by the Seller, but without any other deduction credit
or set off) within 30 days of the date of the Seller's invoice or otherwise in accordance
with such credit term as may have been agreed in writing between the Buyer and the
Seller in respect of the Contract.
Payment shall be made on the due date notwithstanding that delivery may not have
taken place and/or that the property in the Goods has not passed to the Buyer. The time of the payment of the price
shall be of the essence of the Contract.
Receipts for payment will be issued only upon request.
6.3
All payments shall be made to the Seller in Pounds Sterling
at its office as indicated on the form of acceptance or invoice issued by the Seller.
6.4
The Seller is not obliged to accept orders from any
customer or buyer who has not supplied the Seller with references satisfactory to
the Seller; if at any time the Seller is not satisfied as to the creditworthiness
of the Buyer it may give notice in writing to the Buyer that no further credit will
be allowed to the Buyer in which event no further goods will be delivered to the
Buyer other than against cash payment and notwithstanding Clause 6.2 of these conditions,
all amounts owing by the Buyer to the Seller shall be immediately payable in cash.
7.
Delivery
7.1
Delivery of the Goods shall be made by the Seller delivering
the Goods to the place in the United Kingdom specified in the Buyer's order and/or
the Seller's acceptance as the location to which the Goods are to be delivered by
the Seller or, if no place of delivery is so specified, by the Buyer collecting
the Goods at the Seller's premises at any time after the Seller has notified the
Buyer that the Goods are ready for collection.
7.2
The Delivery Date is approximate only and time for delivery
shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller
in advance of the Delivery Date upon giving reasonable notice to the Buyer.
7.3
Where delivery of the Goods is to be made by the Seller
in bulk, the Seller reserves the right to deliver up to ten per cent more or ten per cent less than the quantity ordered without
any adjustment in the price, and the quantity so delivered shall be deemed to be
the quantity ordered.
7.4
Where the Goods are to be delivered in instalments,
each delivery shall constitute a separate contract and failure by the Seller to
deliver any one or more of the instalments in accordance with these Conditions 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.
7.5
If the Buyer fails to take delivery of the Goods or
any part of them on the Delivery Date and/or fails to provide any instructions,
documents, licences, consents or authorisations required to enable the Goods to
be delivered on that date, the Seller shall be entitled upon given written notice
to the Buyer to store or arrange for the storage of the Goods and then notwithstanding
the provision of Clause 8.1 of these Conditions risk in the Goods shall pass to
the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay
to the Seller all costs and expenses including storage and insurance charges arising
from such failure.
8.
Risk and Property
8.1
Risk of damage to or loss of the Goods shall pass to
the Buyer at:-
(a) in the case of Goods to be delivered
at the Seller's premises, the time when the Seller notifies the Buyer that the Goods
are available for collection; or
(b) in the case of Goods to be delivered
otherwise than at the Seller's premises, the time of delivery or, if the Buyer wrongfully
fails to take delivery of the Goods, the time when the Seller has tendered delivery
of the Goods.
8.2
Notwithstanding delivery and the passing of risk in
the Goods, or any other provision of these Conditions, the property in the Goods
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 all other goods agreed to be sold
by the Seller to the Buyer for which payment is then due.
8.3
Until such time as the property in the Goods passes
to the Buyer:-
(a) the Buyer shall hold the Goods as
the Seller's fiduciary agent and bailee, and shall keep the Goods separate from
those of the Buyer and third parties and properly stored, protected and insured
and identified as the Seller's property;
(b) the Buyer shall be entitled to resell
or use the Goods in the ordinary course of its business, but shall account to the
Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible,
including insurance proceeds, and shall keep all such proceeds separate from any
moneys or property of the Buyer and third parties and in the case of tangible proceeds,
properly stored, protected and insured; and
(c) provided the Goods are still in
existence and have not been resold, the Seller shall be entitled at any time to
require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails
to do so forthwith, to enter upon any premises of the Buyer or any third party where
the Goods are stored and repossess the Goods.
8.4
The Buyer shall not be entitled to pledge or in any
way charge by way of security for any indebtedness any of the goods which remain
the property of the Seller, but if the Buyer does so all money owing by the Buyer
to the Seller shall (without prejudice to any other right or remedy of the Seller)
forthwith become due and payable.
9.
Seller's Default
9.1
If the Seller fails to deliver the Goods or any of them
on the Delivery Date other than for reasons outside the Seller's reasonable control
or the Buyer's or its carrier's fault:-
(a) if the Seller delivers the Goods
at any time thereafter the Seller shall have no liability in respect of such late
delivery;
(b) if the Buyer gives written notice
to the Seller within ten business days after the Delivery Date and the Seller fails
to deliver the Goods within four business days after receiving such notice the Buyer
may cancel the order and the Seller's liability shall be limited to the excess (if
any) of the cost of the Buyer (in the cheapest available market) of similar goods
to those not delivered over the price of the Goods not delivered.
9.2
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 delivery or in performing,
or any failure to perform, any of the Seller's obligations in relation to the Goods,
if the delay or failure was due to any cause beyond the Seller's reasonable control. Without prejudice to the generality
of the foregoing, the following shall be regarded as causes beyond the Seller's
reasonable control:-
(a) act of God, explosion, flood, tempest,
fire or accident;
(b) war or threat of war, sabotage,
insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations,
bye-laws, prohibitions or measures of any kind on the part of any governmental.
parliamentary or local authority;
(d) import or export regulations or
embargoes; and/or
(e) strikes, lock-outs or other industrial
actions or trade disputes (whether involving employees of the Seller or of a third
party).
10.
Defective Goods
10.1
If on delivery any of the Goods are defective in any
material respect and either the Buyer lawfully refuses delivery of the defective
Goods or, if they are signed for on delivery "condition and contents unknown" the
Buyer gives written notice of such defect to the Seller within three business days
of such delivery, the Seller shall at its option:-
(a) replace the defective Goods within
14 days of receiving the Buyer's notice; or
(b) refund to the Buyer the price for
the goods which are defective;
but the Seller shall have no further liability to the Buyer in respect thereof and
the Buyer may not reject the Goods if delivery is not refused or notice give by
the Buyer as aforesaid.
10.2
No Goods may be returned to the Seller without the prior
agreement in writing of the Seller.
Subject thereto any Goods returned which the Seller is satisfied were supplied subject
to defects of quality or condition which would not be apparent on inspection shall
either be replaced free of charge or, at the Seller's sole discretion the Seller
shall refund or credit to the Buyer the price of such defective Goods but the Seller
shall have no further liability to the Buyer.
10.3
If the Buyer purchases any Goods within six months of
the launch of such goods the Buyer shall have the right to return the Goods or any
part of such order within two
months of delivery, provided always that the Buyer exercising such right shall (a)
return such goods at his risk and cost; and (b) indemnify the Seller against any
cost incurred by the Seller in rectifying any deterioration of the Goods caused
by incorrect storage or use while in the Buyer's hands.
10.4
The Seller shall be under no liability in respect of
any defect arising from fair wear and tear, or any wilful damage, negligence, subjection
to normal conditions, failure to follow the Seller's instructions (whether oral
or in writing), misuse or alteration of the Goods without the Seller's approval,
or any other act or omission on the part of the Buyer, its employees or agents or
any third party.
10.5
Goods, other than defective Goods returned under Conditions
10.1 or 10.2, returned by the Buyer and accepted by the Seller may be credited to
the Buyer at the Seller's sole discretion and without any obligation on the part
of the Seller. Where Goods returned
to the Seller are not resaleable they will not be considered for credit and will
be destroyed by the Seller at the Buyer's expense in the interests of safety. A handling charge of up to
<<
>>% of the value of the Goods returned by the Buyer
may be charged by the Seller.
10.6
Subject as expressly provided in these Conditions, and
except where the Goods are sold under a consumer sale, all warranties, conditions
or other terms implied by statute or common law are excluded to the fullest extent
permitted by law.
10.7
Where the Goods are sold under a consumer sale the statutory
rights of the Buyer are not affected by these Conditions.
10.8
Except in respect of death or personal injury caused
by the Seller's negligence, or as expressly provided in these Conditions, the Seller
shall not be liable to the Buyer by reason of any representation, or any implied
warranty, condition or other term, or any duty at common law or under statute, or
under the express terms of the Contract, for any direct or consequential loss or
damage sustained by the Buyer (including without limitation loss of profit or indirect
or special loss), costs, expenses or other claims for consequential compensation
whatsoever (and whether caused by the negligence of the Seller, its servants or
agents or otherwise) which arise out of or in connection with the supply of the
Goods or their use or resale by the Buyer.
10.9
The Buyer shall be responsible to ensure that, except
to the extent that instructions as to the use or sale of the Goods are contained
in the packaging or labelling of the Goods, any use or sale of the Goods by the
Buyer is in compliance with all applicable statutory handling and sale of the Goods
by the Buyer is carried out in accordance with directions given by the Seller or
any competent governmental or regulatory authority and the Buyer will indemnify
the Seller against any liability loss or damage which the Seller might suffer as
a result of the Buyer's failure to comply with this condition.
11.
Buyer's Default
11.1
If the Buyer fails to make any payment on the due date
then, without prejudice to any other right or remedy available to the Seller, the
Seller shall be entitled to:-
(a) cancel the order or suspend any
further deliveries to the Buyer;
(b) appropriate any payment made by
the Buyer to such of the Goods (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); and
(c) charge the Buyer interest (both
before and after any judgement) on the amount unpaid, at the rate of two per cent
per annum above National Westminster Bank plc 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).
11.2
This condition applies if:-
(a)
the Buyer fails to perform or observe any of its obligations hereunder or is otherwise
in breach of the Contract; or
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