1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Contract means the Customer's order and RBU's acceptance of it in accordance with condition 3.3.
Customer means the person who purchases Equipment from RBU.
Equipment means the equipment agreed in the Contract to be purchased by the Customer from RBU (including any part or parts of it).
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
RBU means IT Refreshed Global Limited t/a RefreshedByUs (company number NI632899) whose registered office is at Unit 3 Mallusk View, Central Park Mallusk, Newtownabbey, Northern Ireland BT36 4FR.
Software means any operating system installed on the Equipment.
VAT means value added tax chargeable for the time being and any similar additional tax.
1.2 In these conditions: (a) condition headings shall not affect the interpretation of the Contract; (b) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (c) a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established; (d) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders; (e) a reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision; (f) a reference to writing or written includes email; (g) references to conditions are to these conditions; and (h) any words following the terms including, include, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 These conditions shall: (a) apply to and be incorporated into the Contract; and (b) prevail over any inconsistent terms or conditions contained in or referred to in the Customer's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on RBU unless in writing and signed by a duly authorised representative of RBU.
3.1 Any quotation is valid for a period of 30 days only, and RBU may withdraw it at any time by notice to the Customer.
3.2 Each order or acceptance of a quotation for Equipment 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 A binding contract shall not come into existence between RBU and the Customer unless and until RBU issues a written order acknowledgement to the Customer or RBU delivers the Equipment to the Customer (whichever occurs earlier).
3.4 RBU may deliver the Equipment by separate instalments. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
3.5 No order which has been acknowledged by RBU may be cancelled by the Customer, except with the agreement in writing of RBU and provided that the Customer indemnifies RBU 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 RBU as a result of cancellation.
4.1 The quantity and description of the Equipment shall be as set out in RBU's acknowledgement of order or (if there is no acknowledgment of order) quotation.
4.2 All samples, drawings, descriptive matter, specifications and advertising issued by RBU, and any descriptions or illustrations contained in RBU's catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.
4.3 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 RBU shall be subject to correction without any liability on the part of RBU.
4.4 RBU reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment which are required to conform with any applicable legislation or, where the Equipment is to be supplied to the Customer's specification, which do not materially affect their quality or performance.
4.5 RBU's employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Equipment.
5.1 All prices shall be as stated in RBU's acknowledgement of order. All prices are exclusive of VAT and other charges and duties.
5.2 The price of the Equipment shall be RBU's quoted price.
5.3 RBU reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Equipment as has not been delivered to reflect any increase in the cost to RBU which is due to market conditions or any factor beyond the control of RBU (including any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Equipment which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give RBU adequate information or instructions.
5.4 Subject to any credit terms that have been agreed in writing between the Customer and RBU, RBU shall invoice, and the Customer shall pay, the price of the Equipment in full before it is dispatched.
5.5 Time for payment of the price shall be of the essence of the Contract.
5.6 If the Customer fails to make payment in full on the due date, the whole of the balance of the price of the Equipment then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to RBU, RBU shall be entitled to: (a) terminate the Contract or suspend any further deliveries of Equipment (whether ordered under the same contract or not) to the Customer; (b) appropriate any payment made by the Customer to such of the Equipment (or the Equipment supplied under any other contract between the Customer and RBU) as it thinks fit (despite any purported appropriation by the Customer); (c) charge interest on the amount outstanding from the due date to the date of receipt by RBU (whether or not after judgment), at the annual rate of 4% above the base lending rate from time to time of AIB Group (UK) plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; (d) suspend all further delivery or warranty service until payment has been made in full; (e) make a storage charge for any undelivered Equipment at its current rates from time to time; (f) stop any Equipment in transit; and (g) a general lien on all Equipment and property belonging to the Customer, exercisable in respect of all sums lawfully due from the Customer to RBU. RBU shall be entitled, on the expiry of 7 days' notice in writing, to dispose of such Equipment or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.
5.7 All sums payable to RBU under the Contract shall become due immediately on its termination, despite any other provision of the Contract. This condition is without prejudice to any right to claim for interest under the law, or any right under the Contract.
5.8 RBU may, without prejudice to any other rights it may have, set off any liability of the Customer to RBU against any liability of RBU to the Customer.
6.1 RBU shall use its reasonable endeavours to deliver the Equipment on the date or dates specified in RBU's acknowledgement of order, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the order. Time is not of the essence as to the delivery of the Equipment and RBU is not in any circumstances liable for any delay in delivery, however caused.
6.2 The Equipment may be delivered by RBU in advance of the quoted delivery date on giving reasonable notice to the Customer.
6.3 Delivery shall be made during normal business hours (excluding bank or public holidays). RBU may levy additional charges for any deliveries made outside such hours at the Customer's request.
6.4 The Customer shall be responsible (at the Customer's cost) for preparing the delivery location for the delivery of the Equipment and for the provision of all necessary access and facilities reasonably required to deliver the Equipment. If RBU is prevented from carrying out delivery on the specified date because no such preparation has been carried out, RBU may levy additional charges to recover its loss arising from this event.
6.5 The Customer shall inspect and test the Equipment on delivery to ensure that it complies with the requirements of the Contract, but, in any event, shall be deemed to have accepted the Equipment when the Customer has had 7 days to inspect it after delivery and has not exercised in writing its right of rejection in accordance with condition 10.
6.6 RBU shall be responsible for any damage, shortage or loss in transit, provided that the Customer notifies it to RBU (or its carrier, if applicable) within 3 days of delivery and that the Equipment has been handled in accordance with RBU's stipulations. Any remedy under this condition 6.6 shall be limited, at the option of RBU, to the replacement or repair of. Or refund for, any Equipment which is proven to RBU's satisfaction to have been lost or damaged in transit.
7.1 The Equipment shall be at the risk of RBU until delivery to the Customer at the place of delivery specified in RBU's acknowledgement of order. RBU shall off-load the Equipment at the Customer's risk.
7.2 Ownership of the Equipment shall pass to the Customer on the later of: (a) completion of delivery (including off-loading); and (b) when RBU has received in full in cleared funds all sums due to it in respect of the Equipment and all other sums which are or which become due to RBU from the Customer on any account.
7.3 Until ownership of the Equipment has passed to the Customer under condition 7.2, the Customer shall: (a) hold the Equipment on a fiduciary basis as RBU's bailee; (b) store the Equipment (at no cost to RBU) 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 RBU's property; (c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment; and (d) keep the Equipment insured on RBU's behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of RBU, ensure that RBU's interest in the Equipment is noted on the policy, and hold the proceeds of such insurance on trust for RBU and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
7.4 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 15 arise or if the Customer encumbers or in any way charges the Equipment, or if the Customer fails to make any payment to RBU on the due date.
7.5 Until ownership of the Equipment has passed to the Customer under condition 7.2, the Customer grants RBU, 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 RBU in repossessing the Equipment shall be borne by the Customer.
7.6 On termination of the Contract for any reason, RBU's (but not the Customer's) rights in this condition 7 shall remain in effect.
7.7 RBU 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.
8.1 If RBU refers to a software licence in the acknowledgment of order, the price of the Equipment includes the licence fee for the Customer's right to use the Software.
8.2 If the Customer is provided with any operating system software licence in respect of the Software, the Customer shall sign and accept the licence on a "shrink-wrap" or "click-wrap" basis.
8.3 If no software licence has been provided to the Customer, the Customer hereby accepts a non-exclusive, non-transferable licence to use the Software on the following conditions: (a) the Customer shall not copy (except to the extent permissible under applicable law which is not capable of exclusion by agreement or for normal operation of the Equipment), reproduce, translate, adapt, vary or modify the software, nor communicate it to any third party, without RBU's prior written consent; (b) the Customer shall not use the Software on any equipment other than the Equipment, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Software on the medium on which it resides; (c) such licence shall be terminable by either party on 28 days' written notice, provided that RBU terminates only if the continued use or possession of the Software by the Customer infringes the developer's or a third party's rights, or RBU is compelled to do so by law, or if the Customer has failed to comply with any term of the Contract; and (d) on or before the expiry of this licence, the Customer shall return to RBU all copies of the Software in its possession.
9.1 Where the Equipment is supplied for export from the United Kingdom, the provisions of this condition 9 shall (subject to any contrary terms agreed in writing between the Customer and RBU) override any other provision of these conditions.
9.2 The Customer shall be responsible for complying with any legislation governing: (a) the importation of the Equipment into the country of destination; and (b) the export and re-export of the Equipment and shall be responsible for the payment of any duties on it.
9.3 Unless otherwise agreed in writing between the Customer and RBU, the Equipment shall be delivered free on board the air or sea port of shipment and RBU shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
9.4 The Customer shall pay the price for the Equipment in pounds sterling.
10.1 RBU warrants to the Customer that the Equipment is free from faulty materials or workmanship. RBU undertakes (subject to the remainder of this condition 10), at its option, to repair or replace (with goods which are the same as or of equivalent quality) or refund the price of Equipment which is found to be defective as a result of faulty materials or workmanship within 12 months of delivery.
10.2 The warranty in condition 10.1 does not cover any battery or other consumable item(s) supplied with the Equipment. RBU does not test or warrant the battery or its life expectancy and this has been taken into account when pricing the Equipment.
10.3 RBU shall not in any circumstances be liable for a breach of the warranty contained in condition 10.1 unless: (a) the Customer gives written notice of the defect to RBU within 7 days of the time when the Customer discovers or ought to have discovered the defect; and (b) the Customer returns the Equipment to RBU's place of business at the Customer's cost for the purposes of examination.
10.4 Returned Equipment must be in its original packaging, undamaged, complete and with all the original manuals and literature supplied with the Equipment. Equipment returned that is not in line with this condition will, at the RBU’s discretion, be refused or RBU will be entitled to charge the Customer for appropriate packaging, manuals and literature in order to return the Equipment to RBU’s own supplier.
10.5 RBU shall not in any circumstances be liable for a breach of the warranty in condition 10.1 if: (a) the Customer makes any use of Equipment in respect of which it has given written notice under condition 10.3(a); or (b) the defect arises because the Customer failed to follow RBU's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice; or (c) the Customer alters or repairs the relevant Equipment without the written consent of RBU; or (d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
10.6 RBU shall not in any circumstances be liable for any damage or defect to the Equipment caused by: (a) improper use of the Equipment; or (b) use outside its normal application; or (c) viruses or any issue arising from software or hardware incompatibility.
10.7 RBU bears no responsibility for the loss of any data or software on any returned Equipment.
10.8 Any repaired or replacement Equipment shall be under warranty for the unexpired portion of the warranty period under condition 10.1.
11.1 Any liability of RBU for non-delivery of the Equipment shall in all circumstances be limited to replacing the Equipment within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Equipment.
11.2 In the event of any claim by the Customer under the warranty given in condition 10.1, the Customer shall notify RBU in writing of the alleged defect. RBU shall have the option of testing or inspecting the Equipment at RBU's premises at the cost of the Customer. If the Customer's claim is subsequently found by RBU to be covered by the warranty in condition 10, the costs of return of the Equipment will be refunded to the Customer.
12.1 The following provisions set out the entire financial liability of RBU (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of: (a) any breach of the Contract however arising; and (b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising out of or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the greatest extent permitted by law.
12.3 Nothing in these conditions excludes or limits the liability of RBU for: (a) death or personal injury caused by RBU's negligence; or (b) fraud or fraudulent misrepresentation.
12.4 Subject to condition 12.2 and condition 12.3: (a) RBU shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for: (i) loss of profits; or (ii) loss of business; or (iii) depletion of goodwill or similar losses; or (iv) loss of anticipated savings; or (v) loss of goods; or (vi) loss of contract; or (vii) loss of use; or (viii) loss or corruption of data or information; or (ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and (b) RBU's total liability in contract, tort (including negligence and breach of statutory duty however arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price payable for the Equipment under condition 5.
13.1 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Equipment are and shall remain the sole property of RBU or (as the case may be) the third-party rights owner.
13.3 RBU shall retain the property and copyright in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person without the prior written consent of RBU.
14.1 The Customer shall keep in strict confidence: (a) all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by RBU or its agents; and (b) any other confidential information concerning RBU's business or its products which the Customer may obtain.
14.2 The Customer shall restrict disclosure of such confidential material to such of its employees, agents or subcontractors as need to know the same for the purpose of discharging the Customer's obligations to RBU, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
14.3 This condition 14 shall survive termination of the Contract, however arising.
15.1 Without prejudice to any other right or remedy available to RBU, RBU may terminate the Contract or suspend any further deliveries under the Contract without liability to the Customer (and, if the Equipment has been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous contract or arrangement to the contrary) if: (a) the ability of the Customer to accept delivery of the Equipment is delayed, hindered or prevented by circumstances beyond the Customer's reasonable control; or (b) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of insolvency legislation; or (c) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or (d) the Customer applies to court for, or obtains, a moratorium under insolvency legislation; or (e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer; or (f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer (being a company, partnership or limited liability partnership); or (g) the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or (h) a person becomes entitled to appoint a receiver over the assets of, or a receiver is appointed over the assets of, the Customer; or (i) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer's assets and such attachment or process is not discharged within 14 days; or (j) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 15.1(b) to condition 15.1(h) (inclusive); or (k) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or (l) the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or (m) there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).
15.2 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
15.3 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
RBU reserves the right to defer the date of delivery, or to cancel the Contract or reduce the amount of Equipment ordered, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event), including: (a) strikes, lock-outs or other industrial disputes (whether involving the workforce of RBU or any other party); (b) failure of a utility service or transport or telecommunications network; (c) act of God, war, riot or civil commotion; (d) malicious damage; (e) compliance with any law or governmental order, rule, regulation or direction; and (f) accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
17.1 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.2 Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
17.3 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this agreement is deemed deleted under this condition , the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
17.4 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that, in entering into the Contract, it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract. Nothing in this condition shall limit or exclude any liability for fraud.
17.5 The Customer shall not, without the prior written consent of RBU, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. RBU may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
17.6 No one other than a party to the Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
17.7 Any notice given to a party under or in connection with the Contract shall be in writing and shall be: delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to its email address. Any notice shall be deemed to have been received: if delivered by hand, at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting; and if sent by email, at the time of transmission (subject to no delivery failure having been received). This condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
18.1 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including disputes or claims) are governed by and construed in accordance with the law of Northern Ireland.
18.2 Each party irrevocably agrees that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).