SmartEPOS Terms & Conditions

These Terms and Conditions of Business shall be deemed to be a contract between Smart EPOS Solutions Limited and/or any subsidiary or associates (hereafter referred to as “the Agent/Seller”) on the one part and the person, firm, company, entity, organisation and/or subsidiary or associate (hereafter called “the Client/Buyer”) with whom Smart EPOS Solutions Limited contracts for the sale of Products and/or supply of Services (hereafter called “Goods”) of the other part.

Goods are sold and work is undertaken upon the following conditions:

1 Order Acceptance

These conditions shall prevail over any conditions in the Buyer’s Purchase Order or in correspondence or elsewhere. Any terms and conditions not included in these Conditions of Sale shall be without effect unless the Seller has expressly confirmed in writing. No variation to these Conditions as current from time to time but the seller will use best efforts to notify the Buyer of any material changes to the Conditions before they become applicable. The Buyer’s acceptance of these Conditions shall also be made (in respect of the first Contract and all subsequent Contracts) either by (1) the Buyer providing a purchase order to the Seller or (2) the Buyer accepting Products or Services from the Seller, whichever occurs first.

The Buyer agrees that any order placed on the Seller including by Electronic Means mentioning or utilising the Buyer’s Identification is a valid and binding purchase order.

Where the order is for telecommunications equipment and/or service contract, the minimum contract will be 12 months or the term agreed, whichever is the greater. If a service contract is downgraded or cancelled Smart EPOS Solutions will reserve the right to invoice the equipment supplied or retain title to the equipment, whichever, at Smart EPOS Solutions’ discretion. Additionally, any penalties applied by the service provider will be charged back to the company named on the contract.

2 Delivery

2.1 While the Seller will take all responsible steps to deliver the goods within the delivery period, the Seller accepts no responsibility for failure to do so. Despatch may be postponed because of conditions beyond the Seller’s reasonable control, and in no event shall the Seller be liable for any damages or penalty for delay in despatch or delivery.

2.2 The Seller reserves the right to deliver in more than one shipment at its discretion.

2.3 Notwithstanding the provision of Condition 4, the goods shall be at the Buyers’ risk from the time of despatch by the Seller. The Seller accepts no liability for loss or damage caused of any carrier or agent acting on his behalf.

2.4 Delivery of the Goods shall be made by the Seller to such place shall have been agreed between the Seller and the Buyer. The Seller shall be entitled to assume that any person who both reasonably appears and claims to have authority to accept delivery who signs a note in respect of the Goods on behalf of the Buyer does in fact have the authority. If Goods are returned for non-delivery, the Seller reserves the right to charge accordingly for the return carriage and the Buyer is liable if further costs are incurred for re-delivery.

2.5 The Buyer must inspect the Goods immediately after delivery is complete. If any goods are damaged (or not delivered), the Buyer must notify the Seller within 2 working days of the delivery or expected delivery. If proof of delivery is required, this must be requested within 14 days of the date of invoice.

2.6 The Buyer shall bear all costs associated with the unjustified refusal of delivery of Goods. If the refusal is made on the grounds that the order was wrongly placed (i.e. wrong product, wrong pricing etc.) and the refusal is accepted by the Seller, the Seller reserves the right to charge accordingly additional fees for return transportation and administrative expenses thereto, and the original carriage costs will not be reimbursed.

3 Payment

3.1 All invoices are payable on delivery/collection except where a credit account is authorised in writing by the Seller. Where the Buyer has an authorised credit account, payment is due 30 days from date of the invoice, subject to agreement of this date Smart EPOS Solutions Limited the Seller reserves the right to suspend all deliveries and/or services where payment is not received in accordance with paragraph 3.1 of this clause, or in accordance with any alternative arrangement which shall be agreed in writing between the two parties. In such an event any agreed period of credit is cancelled and all monies owed to the Seller by the Buyer becomes immediately due and payable on demand. Where payment is not received on the due date the Buyer shall pay interest on the unpaid amount from that time until payment at a rate equivalent to that set for the purposes of section 6 of the Late Payment of Commercials Debts (Interest) Act 1998, calculated on a daily basis from the date of invoice until payment; such interest to be compounded on the first day of each calendar month and payable both before and after any judgement (unless the Court orders otherwise).

3.2 The Seller also reserves the right to withdraw the credit terms in paragraph 3.1 of this clause and substitute cash with terms.

3.3 No cash or other discount is allowed.

3.4 The Seller also reserves the right to charge a surcharge on credit card transactions (which may exceed the amount charged to the Seller by the credit card companies) by way of processing or handling charge.

3.5 It is a pre-condition of any claim against the Seller that the Buyer shall have complied in full with the terms of payment and other obligations under these Conditions.

3.6 Any queries regarding invoices should be made known to the Seller in writing within 7 days of receipt thereof by the Buyer. If no such notification is given it will be assumed the invoice and goods/services thereunder have been accepted.

3.7 If the Buyer pays maintenance invoices in preference to invoices for goods/services and those invoices therefore become overdue, the Seller reserves the right to allocate receipts to those invoices which are most overdue regardless of the Buyer’s indications to the contrary. This could cause interruption of the maintenance service provided if this causes maintenance invoices to remain overdue.

4 Risk and Transfer of Property

4.1 The Equipment shall be at the risk of the Supplier until delivery to the Customer at the place of delivery specified in the Supplier’s acknowledgement of order. The Supplier shall off-load the Equipment at the Customer’s risk.

4.2 Ownership of the Equipment shall pass to the Customer on the later of completion of delivery (including off-loading), or when the Supplier has received in full in cleared funds all sums due to it in respect of:

4.2.1 the Equipment; and

4.2.2 all other sums which are or which become due to the Supplier from the Customer on any account.

4.3 until ownership of the Equipment has passed to the Customer under condition 8.2, the Customer shall:

4.3.1 hold the Equipment on a fiduciary basis as the Supplier’s bailee;

4.3.2 store the Equipment (at no cost to the Supplier) in satisfactory conditions and separately from all the Customer’s other equipment or that of a third party, so that it remains readily identifiable as the Supplier’s property;

4.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment; and

4.3.4 keep the Equipment insured on the Supplier’s behalf for its full price against all risks to the reasonable satisfaction of the Supplier, and hold the proceeds of such insurance on trust for the Supplier and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

4.4 The Customer’s right to possession of the Equipment before ownership has passed to it shall terminate immediately if any of the circumstances set out in condition 4.4.1 arise or if the Customer encumbers or in any way charges the Equipment, or if the Customer fails to make any payment to the Supplier on the due date.

4.4.1 The Buyer’s right to possession of the Goods shall terminate immediately if the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or involuntary) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or

4.5 The Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect it, or where the Customer’s right to possession has terminated, to remove it. All costs incurred by the Supplier in repossessing the Equipment shall be borne by the Customer.

4.6 On termination of the Contract for any reason, the Supplier’s (but not the Customer’s) rights in this condition 8 shall remain in effect.

4.7 The Supplier may appropriate payments by the Customer to such Equipment as it thinks fit, notwithstanding any purported appropriation by the Customer to the contrary, and may make such appropriation at any time.

5 Guarantee

5.1 The Seller guarantees to the Buyer that the goods will be free from defects caused by faulty materials or poor workmanship for the period of 1 month from the date of delivery. All software programmes are sold ‘as is’. The sole obligation of the Seller in connection with the supply of software Goods is to use all reasonable endeavours to obtain and supply a corrected version from the manufacturer concerned in the event that such software should fail to conform to product description, provided that:

5.1.1 The Seller is notified in writing within 7 days of discovery of any such defects by the Buyer and in any event not later than 14 days from the date of delivery.

5.1.2 The defective goods are returned to the Seller, transportation charges being prepaid by the Buyer.

5.1.3 Examination by the Seller of such goods shall disclose to its satisfaction that such defects exist and have not been caused by misuse, neglect, accident, improper storage, installation or handling, or by repair alteration not effected by the Seller; and to return to the Buyer (at the Buyer’s expense) any Goods found not to be faulty, and

5.1.4 The Buyer shall pay to the Seller the cost (as certified by the Seller) of any examination of such goods as result of which the Seller does not admit liability.

5.2 The guarantee does not extend to:

5.2.1 Expendable material and

5.2.2 Any goods or part thereof supplied but not manufactured by the Seller; but the Seller will, so far as possible, pass to the Buyer the benefit of any guarantee given to the Seller by the manufacturer thereof: If any part of the hardware Goods should prove defective in materials or workmanship under normal operation or service, such Goods will be repaired or replaced only in accordance with any warranty cover or terms as provided by the manufacturer of the Goods PROVIDED THAT no unauthorised modifications to the Goods

or to the system of which the Goods forms part have taken place. The Seller is not responsible for the cost of labour or other expenses incurred in repairing defective or non-conforming parts.

5.3 The seller reserves the right to test all Goods returned as faulty. The Seller also reserves the right to levy an additional reasonable charge to cover the cost of such testing.

5.4 In the case of a consumer transaction this condition 5 shall not affect the statutory rights of the Buyer as defined in the Consumer Transactions (Restrictions on Statements) Order 1973 (as amended).

6 Exclusion of Liability

6.1 Save as expressly provided in condition 5, the Seller shall be under no liability of whatsoever kind howsoever caused whether or not due to the negligence or wilful default of the Seller or its servants or agents arising out of or in connection with the goods. All conditions, warranties or other terms, whether express or implied, statutory or otherwise, are hereby expressly excluded provided that nothing in this paragraph shall exclude or restrict any liability of the Seller for death or personal injury resulting from the negligence of the Seller or its servants or agents.

6.2 If it should be held in relation to any claim that paragraph 6.1 above is not effective the Buyer shall not be entitled to reject the goods, and any damages recovered by the Buyer shall be limited to the reasonable cost of remedying the breach of contract provided that the Seller shall first be offered the opportunity of itself carrying out such remedial work.

6.3 Except where the contract is an international supply contract having the characteristics specified in Section 26 of the Unfair Contract Terms Act 1977, nothing contained in this Condition shall exclude or restrict:

6.3.1 Any liability of the Seller for breach of its implied undertakings as to title, and

6.3.2 Where the Buyer deals as consumer within the meaning of the Unfair Contract Terms Act 1977, and liability of the Seller for breach of its implied undertakings as to conformity of the goods with description or sample or as to their quality or fitness for a particular purpose.

7 Force Majeure

The Seller shall have no liability to the Buyer or be deemed to be in breach of any Contract in respect of failure to deliver or perform, or in delay in delivering or performing any obligations under this contract if the delay or failure was due to any cause of whatever nature outside the reasonable control of the Seller, including but not limited to, civil commotions, strike, lock-outs, industrial actions or trade disputes, difficulties of the Seller’s supplier in obtaining raw materials, labour, fuel, parts or machinery, war, fire, accidents, epidemics, force majeure and causes from the act or omissions of the Buyer.

8 Price Variations

8.1 Prices quoted do not include VAT or any similar taxes.

8.2 Unless otherwise stated, carriage and packing are charged extra. A standard carriage and packing charge at the current rate prevailing is applied. Special deliveries are charged to the Buyer at cost. Overseas delivery costs and fluctuations in currency (Dollar rate) will be charged to the Buyer in full.

8.3 The Seller reserves the right without notice to alter the price of goods after acceptance of an order due to an increase in its supplier’s price due to circumstances beyond the Seller’s control, but the Seller shall only increase its price by such level as is necessary to reflect such increases and also to correct errors and omissions.

8.4 Unless otherwise stated prices are for a single consignment to a single address.

8.5 Where the Buyer requests items to be supplied with release certificates the Seller reserves the right to make an extra charge for providing such certificate.

8.6 Where agreed call offs are not adhered to by the Buyer, the Seller reserves the right to amend the price structure in accordance with the quantities delivered.

8.7 Special Order Products may require prepayment and may be subject to additional fees.

9 Cancellation and Amendment of Orders

9.1 No cancellation or amendment of any Order will be accepted unless received by the Seller in writing at least 30 days before delivery date notified by the Seller to the Buyer.

9.2 Any refund will be subject to a restocking fee. This is 20% of the order value.

9.3 Any cancellation or amendment of any Order shall be subject to acceptance by the Seller at the Seller’s sole discretion, and also subject to a reasonable administration charge. The Buyer hereby agrees to indemnify the Seller against all losses, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling.

9.4 Notwithstanding the provision of 9.1 above no cancellation or amendment of an Order will be accepted where goods have been ordered or purchased by the Seller to meet the Buyer’s requirements or where a special price has been negotiated with the Buyer.

10 Return of Goods

10.1 Save under 5.1.2;

10.1.1 No goods may be returned to the Seller without the previous consent in writing of the Seller. Software may not be returned.

10.1.2 A charge of 20% of invoice value will be levied on goods returned, with a minimum charge of £25.

10.1.3 Returned goods must be in the same condition as when sold.

10.2 All costs of returning goods shall be borne by the Buyer.

10.2.1 All returned goods must be received by the Seller within thirty days of the original delivery date.

10.2.2 All returned goods must be accompanied by the original packing note, together with the full reason for returning the goods.

10.2.3 All returned goods must be returned to the address supplied by the Seller.

10.2.4 If a partial return is accepted the cost of returning returns deemed unacceptable by the Seller will be deducted from any refund/credit due.

10.3 This condition shall not affect the statutory rights of the Buyer as defined by English Law neither shall it affect any manufacturer’s guarantee passed on by the Seller to the Buyer.

11 Specification and Finish

11.1 Goods are supplied to the Manufacturer’s standard specification and of their current standard finish, as these may be improved, substituted or modified.

11.2 The Seller will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in the manufacturer’s specifications or technical data of the Goods.

11.3 The Seller will not be responsible for any loss or damage resulting from curtailment or cessation of supply of Goods following any variation as described in clause 12 of these terms and conditions.

12 Origin of Goods

Unless otherwise confirmed, nothing in this document is to be taken as a representation of the source of origin of manufacture or production of the goods or any part thereof.

13 Schedule Orders

Orders can only be accepted for scheduled delivery when the value of each shipment exceeds £100.

14 Telephoned Orders

Orders can be accepted by telephone only if an official order number is quoted by the Buyer. If a telephone order is confirmed in writing the Buyer must mark such written order with any confirmation reference given by the Seller when the order was accepted on the telephone. Otherwise the Seller cannot accept liability for any duplication of delivery that may occur.

15 Minimum Order

Goods are supplied only in the multiples quoted and are subject to a minimum order quantity where stated.

16 Quotations

Quotations are valid for 30 days subject to clause 9 (9.3) above.

17 Law

The quotation and any contract that shall result therefrom shall be governed in all respects by the internal Laws of England and the parties hereby irrevocably submit to the jurisdiction of the English courts.

18 Sub-contracting

The Seller reserves the right to sub-contract at its discretion any part of the work or the supply of any goods for which the Seller provides a quotation.

19 Contracted Personnel

19.1 The Client agrees to pay the daily charge of the Agent advised at the time of the booking. The Client agrees to verify and sign the Agent’s time sheets each week. Signature of such time sheets by the Client constitutes acceptance that the candidate has worked satisfactorily for the hours indicated on the time sheets. Failure to sign the time sheets does not alter the Client’s liability to pay for hours worked. Travelling, hotel or other expenses as may be agreed shall be itemised on the Agent’s invoice in addition to the daily charge. These charges will be those in force at the time of the assignment and may be varied from time to time with immediate effect. VAT shall be charged in addition.

19.2 An introduction fee calculated at 100% of the first year’s remuneration, including all emoluments and benefits that form part of the Gross Taxable Pay, will be payable within 28 days should the Client offer employment, which is accepted, on any basis, to any

candidate provided by the Agent, or within a period of 2 years of the candidate leaving the employment on whatever basis, including sub-contractors, of the Agent.

19.3 Should the relevant employment terminate before the expiry of 8 weeks a rebate of 12.5% will be allowable against the fee for each complete week not actually worked provided that:

19.3.1 The Client notifies the Agent in writing within 7 days of the termination of employment.

19.3.2 The Client has complied with our Payment terms.

19.4 The introduction of a candidate by the Client to another employer, which results in the engagement of the candidate, will render the client liable for the payment of the introduction fee at the said rate.

19.5 No liability can be accepted by the Agent for any negligence, dishonesty, misconduct or lack of skill of a candidate engaged by the Client.

19.6 All Fees will be subject to VAT at the prevailing rate.

19.7 Any variations to the above are only valid if confirmed by a Director in writing.

19.8 These Terms and Conditions are deemed to be accepted by the Client by virtue of the engagement (which term includes use under a contract of service) of a candidate by the Client for whatever period, whether it is definite or indefinite.

20 Variation of Terms

The conditions are subject to any express conditions written by the Seller on the face hereof.