Terms and Conditions
SMART DIGITAL ONLINE LTD trading as SMART STICK & www.usbfactory.co.uk
TERMS AND CONDITIONS
This document, the order form, the payment schedule and all other documentation provided by Smart Stick (www.usbfactory.co.uk) clearly identify and state the terms and conditions on which Smart Stick (www.usbfactory.co.uk) supply any of their products or to their clients or resellers in their current product portfolio, whether the products are listed on the website www.usbfactory.co.uk or not.
Clients should understand that by signing an order form and ordering any one of the www.usbfactory.co.uk products, they agree to be bound by these terms and conditions, for that reason, please read this document carefully before confirming your order and request confirmation on any questions that you have prior to your order being signed. Smart Stick (www.usbfactory.co.uk) recommends that you print a copy of these terms and conditions for your future reference.
You confirm that you accept these terms and conditions by either making a payment for any one of the Smart Digital Online Ltd or trading as companies, products and services and/or by signing the order form provided by your Account Manager and returning it by either email or by fax to 0870 298 9551 or by posting it to:
Smart Digital Online Ltd
33 Victoria Street
Please understand that if you refuse to accept these terms and conditions, and a compromise cannot be successfully agreed between our legal representatives then Smart Stick (www.usbfactory.co.uk) reserve the right to not accept an order from you.
www.usbfactory.co.uk is a website operated by Smart Digital Ltd (company no. 06055984 VAT no. 902333466) (We, Us or Smart Click (www.usbfactory.co.uk)) of 33 Victoria Street, Bristol, BS1 6AS.
1. Interpretation and Definitions
1.1 In this agreement the following terms shall have the respective meanings assigned to them:
“Agreement” means these terms and conditions, the payment terms, the order form, the purchase order, the digital design sign off. In the event of any conflict between the terms of this agreement, the details of the order form shall prevail, except for payment terms where the payment schedule shall prevail;
“The customer” means the company its employees, agents, representatives and sub contractors, to whom the product or service is provided as set out on the order form;
“Fees” means the amounts payable by the Customer for the products provided by Smart Stick (www.usbfactory.co.uk) as set out in the Order Form;
“Force Majeure” means any act, event, omission or accident beyond reasonable control including but not limited to Acts of God, fire, lightening, explosion, flood, extreme weather conditions, outbreak of hostilities (whether war be declared or not), riot, civil disorder or commotion, acts of terrorism, industrial disputes or acts or defaults of any local or central Government or other competent authority;
“Order Form” means the customers agreed order form for USB Memory sticks, the style and the amount ordered as well as the memory size which together form part of these terms and conditions;
“Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
“Product Specification” means a statement of work, quotation or other similar document describing the products to be provided by Smart Stick (www.usbfactory.co.uk);
“Smart Stick (www.usbfactory.co.uk)” means supplier; Smart Digital Online Ltd, 33 Victoria Street, Bristol, BS1 6AS
1.2 The headings do not affect the interpretation of the Agreement.
1.3 Any reference to a party’s employees includes its agents and sub-contractors.
2. Application of the Terms
2.1 These terms and conditions shall apply to and be incorporated in the Agreement.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Agreement shall be binding without exception, unless agreement in writing and signed by a duly authorised representative of Smart Content.
2.3 If the customer wishes to vary any part of the Agreement, the request shall be sent in writing to Smart Content Ltd prior to the order form being signed. Smart Content shall respond to the customer within 5 working days as to whether it is prepared to agree to the change and, if so, details of the cost of the change, any effect on any other part of the Agreement including any change in timescales. The customer may accept such proposal within such time as Smart Content may specify or, if none, within 7 days, failing which it shall be deemed rejected. Pending acceptance or rejection Smart Content may continue to perform the Agreement without reference to the request.
3. Contractual terms
3.1 Any quotation is valid for a period of 7 days only, unless otherwise specified, and Smart Stick (www.usbfactory.co.uk) may withdraw any part of a quote, at any time by notifying the customer. Any quotation is given on the basis that no contract shall come into existence until we receive an acknowledgement of order in accordance with clause 3.3.
3.2 Each order or acceptance of a quotation for products or services by the customer shall be deemed to be an offer by the customer subject to these conditions. The customer shall ensure that its order is complete and accurate.
3.3 No order for products placed by the customer shall be deemed to be accepted by Smart Stick (www.usbfactory.co.uk) until a written acknowledgement and/or payment (including email) is received by Smart Stick (www.usbfactory.co.uk).
3.4 No agreement may be cancelled by the customer, except with the prior agreement in writing of Smart Stick (www.usbfactory.co.uk) and provided that the customer indemnifies Smart Stick (www.usbfactory.co.uk) 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 Smart Stick (www.usbfactory.co.uk) as a result of the cancellation.
3.5 Smart Stick (www.usbfactory.co.uk)’s employees are not authorised to make any contractually binding representations concerning the product. In entering into the Agreement, the customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which have not been confirmed in writing by an authorised officer of Smart Stick (www.usbfactory.co.uk).
4. Customer’s obligations
4.1 The customer will provide Smart Stick (www.usbfactory.co.uk) with a signed order form and design agreement prior to any production work being started
4.2 The customer shall not interfere or disrupt the product production and or delivery.
5. Production and delivery schedule
5.1. Smart Stick (www.usbfactory.co.uk) shall be permitted to subcontract or outsource any part of the production and delivery process or other obligations under this Agreement.
5.2. Smart Stick (www.usbfactory.co.uk) will use reasonable efforts to provide customers with the products
5.4. Smart Stick (www.usbfactory.co.uk) will not take responsibility for issues that arise that are out of their direct control.
6. Exclusions from products
6.1 When Smart Stick (www.usbfactory.co.uk) is required to integrate load memory stick with third party data or software, Smart Stick (www.usbfactory.co.uk) is in no way responsible for the 3rd party service level.
7. Contract Term
7.1 The products or terms of the contract will be deemed complete when the final order for products has been fulfilled and signed for by clients.
8.1 The customer shall pay the fees without set-off, deduction or delay, in advance of production unless otherwise agreed.
8.2 If a payment date after delivery has been agreed then Smart Stick (www.usbfactory.co.uk)’s invoices, which contain the payment due dates, shall be of the essence of the Agreement.
8.3 If the customer fails to make payment in full on the due date, the whole of the balance of the fees then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to Smart Stick (www.usbfactory.co.uk) may:
I. appropriate any payment made by the customer to any outstanding sum;
II. Charge interest on the amount outstanding from the due date to the date of receipt of the PURCHASE ORDER or ORDER FORM or CONFIRMATION EMAIL by Smart Stick (www.usbfactory.co.uk) (whether or not after judgment), at the annual rate of 4% above the then current base lending rate of Barclays Bank plc, accruing daily and compounded quarterly; and
III. Suspend all further delivery of product deliveries until payment has been received in full.
8.4 The Fees are not refundable, except where otherwise stated herein.
8.5 Cheques and direct debits returned unpaid by the customer’s bank and credit card payments returned unpaid will incur an administration charge which under all circumstances shall be paid by the customer.
8.6 All legal fees incurred by Smart Stick (www.usbfactory.co.uk) related to collecting late payments will be add to the invoice and charged accordingly to the customer without exception
9. Dispute Resolution Procedure
9.1 If any dispute arises in connection with this agreement, directors or other senior representatives of the parties with authority to settle the dispute will, within 7 days of a written request from one party to the other, meet promptly or arrange a teleconference in good faith to resolve the dispute.
9.2 If the dispute is not resolved in accordance with conditions set, then Smart Stick (www.usbfactory.co.uk) tent will refer the dispute, to be appointed, in default of agreement, on the request of either party to the English Courts. In any claim Smart Content will submit a claim for interest in accordance with section and all legal costs associated to the claim against the customer.
10. Data Protection Act
10.1 If any Personal Data (as defined by the Data Protection Act 1998) is passed to Smart Stick (www.usbfactory.co.uk) under this Agreement then the parties agree that the customer is the Data Controller and that Smart Stick (www.usbfactory.co.uk) is the Data Processor.
10.2 The customer warrants that it complies with the Data Protection Act 1998
10.3 Smart Stick (www.usbfactory.co.uk) shall:
I. Process the Personal Data only in accordance with instructions from customer;
II. Process the Personal Data only to the extent, and in such manner, as is necessary for the provision of the products or as is required by Law or any Regulatory Body;
III. implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing or loss, destruction, damage, alteration or disclosure; and
IV. Take reasonable steps to ensure the reliability and confidentiality of any of Smart Stick (www.usbfactory.co.uk)’s personnel who have access to the Personal Data.
11. Limitation of liability
11.1 The following provisions set out the entire liability of Smart Stick (www.usbfactory.co.uk) (including any liability for the acts or omissions of its employees) to the customer in respect of any breach of the Agreement and any representation, statement or tortious act or omission (including negligence) arising out of or in connection with the Agreement.
11.2 All warranties, conditions and other terms implied by statute or common law are excluded from the contract to the fullest extent permitted by law.
11.3 Nothing in these conditions excludes or limits the liability of Smart Stick (www.usbfactory.co.uk) for death or personal injury caused by Smart Content’s negligence or fraud or fraudulent misrepresentation. Subject to:
I. Smart Stick (www.usbfactory.co.uk) shall not be liable for any loss of profits, loss of business, depletion of goodwill or similar losses or for any special, indirect or consequential loss, costs, damages, charges or expenses howsoever arising; and
II. Smart Stick (www.usbfactory.co.uk)’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to 100% of the total fees received by Smart Stick (www.usbfactory.co.uk) in the calendar year in which the incident occurs.
11.4 The provisions of this Clause 11 shall continue to apply notwithstanding the termination or expiry of this Agreement.
12.1 Neither party shall, during the continuance of the Agreement, or within 6 months of its termination, whether on behalf of itself or via a third party, solicit or seek to entice away any employee of the other. In the event of breach of this clause the party in default shall pay the other a sum equal to six months gross pay of the employee concerned being a pre-estimate of the cost of recruitment and training a replacement.
13. Force Majeure
13.1 Smart Stick (www.usbfactory.co.uk) shall not be liable to the customer for any breach of its obligations under this the Agreement if such breach is due to or substantially contributed to a Force Majure event.
13.2 If a Force Majeure event occurs, Smart Stick (www.usbfactory.co.uk) shall inform the customer as soon as possible and take all reasonable steps to mitigate the effects of the Force Majeure event and resume performance
14.1 A waiver of any right under the Contract is only effective if it is in writing and signed by or on behalf of the waiving party, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
15. Entire Agreement
15.1 This Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
15.2 Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy (other than for breach of contract) in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement.
15.3 In the event of any part of this Agreement being held inapplicable or unreasonable, the remainder of the Agreement shall remain in full force and any clause held inapplicable or unreasonable shall be enforced to the fullest extent possible.
16.1 The customer shall not, without the prior written consent of Smart Stick (www.usbfactory.co.uk), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
16.2 Smart Stick (www.usbfactory.co.uk) may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
17. Third party rights
17.1 The Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
17.2 The Client shall indemnify Smart Stick (www.usbfactory.co.uk) against all claims, costs and expenses which Smart Stick (www.usbfactory.co.uk) may incur and which arise, directly or indirectly, from the Client’s breach of any of its obligations under this Agreement, including any claims brought against Smart Stick (www.usbfactory.co.uk) alleging that any products provided by Smart Stick (www.usbfactory.co.uk) in accordance with the Order Form infringes a patent, copyright or trade secret or other similar right of a third party.
18.1 Any notice required to be given pursuant to this Agreement shall be in writing and shall be sent by email or delivered by hand or sent by pre-paid first-class post or recorded delivery post to the address of the party as set out in these conditions, or, in each case, such other address as may be notified by one party to the other.
18.2 A notice delivered by hand is deemed to have been received when delivered (or, if delivery is not in business hours, 9.00 am on the first business day following delivery). A correctly addressed notice sent by prepaid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. An e-mail shall be deemed to have been delivered within 24 hours form the time of being sent, provided that no “non deliverable” notices is received by the sender.
19. Governing law and jurisdiction
19.1 The Agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction.
20. Partners including resellers and referrers
20.1. All partners agree to this agreement as well as the relevant partner agreements.
20.2 Partners or Agents do not represent, are not authorised to sign anything on behalf of or agree terms on behalf of, contract for or agree either verbally or in writing any for Smart Stick (www.usbfactory.co.uk).
20.3 If a customer is refunded in part or in full for fees paid for products and services from Smart Stick (www.usbfactory.co.uk) then any commissions paid due to that contract will be clawed back from the partner or agent without discretion.
21. Changes to this Agreement
21.1. Smart Stick (www.usbfactory.co.uk) may modify this Agreement where it is required to do so, by notifying the customer in writing and giving 30 days notice where possible. This would include where changes to the law, rules applied by other authorities which require Smart Stick (www.usbfactory.co.uk) to modify its procedures, policies or services.
21.2. Smart Stick (www.usbfactory.co.uk) may at any time modify this Agreement for new customers by publishing a new agreement on its website.