UK Commercial Account Terms and Conditions
These terms and conditions apply to orders made as between the Seller and Buyers located in the United Kingdom only.
DEFINITIONS In this document the following words shall mean:
- "Buyer" means the organization buying Devices and/or Services from the Seller;
- "Device" means devices ordered by the Buyer and supplied by the Seller as set out in the relevant contract for devices entered into by the Buyer and the Seller;
- "Contract Price" means the price of Devices and/or Services available to the Buyer per terms of a valid, executed agreement between the Parties;
- "End User" means any individual user of the Devices and/or Services provided by the Seller via the Buyer;
- "Purchase Order" means a purchase order or other order from a Buyer to the Seller for Devices and/or Services;
- "Seller" means GreatCall UK Ltd, a private limited company registered under the laws of England and Wales, with company number 10096827, with its registered office at Paul Hastings (Europe) LLP, Ten Bishops Square, Eighth Floor, London, United Kingdom, E1 6EG;
- "Services" means the per unit, per month service plan options offered to the Buyer from the Seller as set out in the relevant Purchase Order between the Buyer and the Seller.
INTERPRETATION In these terms and conditions, unless the context otherwise requires (a) any obligation on the Seller or the Buyer not to do or omit to do anything shall include an obligation not to allow that thing to be done or omitted to be done; (b) the headings to the clauses of these terms and conditions are for information only and do not affect the interpretation of this agreement; or (c) the word 'including' shall be understood as meaning 'including without limitation'.
GENERAL These Terms and Conditions shall apply to all Devices and Services to be supplied by the Seller to the Buyer to the exclusion of all other prior contradictory terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer whether attached to any Purchase Order or otherwise.
ACCEPTANCE A Purchase Order shall be deemed accepted only upon written acceptance by the Seller or upon shipment of the Devices.
YOUR RIGHT TO REFUSE OR CANCEL AN ORDER This Agreement will begin when you (a) activate service on any Device in an order or (b) within thirty (30) days of receipt, fail to return the entire shipment. If you do not wish to accept this agreement, do not activate Services on any Device herein and return the entire shipment within thirty (30) days of receipt.
PRICE OF PRODUCTS AND SERVICES The price of the Devices and Services shall be the Contract Price. Prices stated are exclusive of value added tax unless otherwise stated.
SHIPPING The Seller will package Devices and arrange for all shipping to the delivery location agreed between the Seller and the Buyer in the relevant Purchase Order or if no such delivery location is agreed, the Buyer’s address at the Buyer’s cost, unless otherwise agreed ("Delivery Location"). If the Buyer fails to take delivery of the Devices when due, the Seller may charge reasonable costs of storage from the date of delivery agreed in the relevant contract for devices entered into between the Buyer and the Seller.
PAYMENT All amounts invoiced shall be paid by the Buyer in immediately available funds within 30 days of the date of receipt of the invoice supplied by the Seller. IF WE DON’T RECEIVE PAYMENT IN FULL WHEN DUE, WE MAY, TO THE EXTENT PERMITTED BY THE LAW OF THE BILLING ADDRESS WE HAVE ON FILE FOR THE BUYER AT THE TIME, CHARGE THE BUYER ANNUAL INTEREST OF 4% PLUS THE BASE RATE OF LLOYDS BANK PLC. WE MAY ALSO CHARGE THE BUYER FOR ANY COLLECTION AGENCY FEES BILLED TO US FOR TRYING TO COLLECT FROM THE BUYER. SHOULD WE NOT RECEIVE YOUR LATE PAYMENT WITHIN 30 DAYS OF IT BEING DUE, WE MAY SUSPEND YOUR SERVICE UNTIL PAID IN FULL. WE RESERVE THE RIGHT TO CHARGE A REASONABLE RECONNECTION FEE. IF YOUR ACCOUNT REMAINS UNPAID, WE WILL CANCEL SERVICE FOR NON-PAYMENT. We reserve the right to require recurring credit card billing for certain products or services. We also reserve the right to require an advance deposit (or an increased deposit) from you based on your payment history and changes in your plan and/or the frequency of use of our services.
RETURN POLICY If a Device is defective in any material respect, contact your Account Manager for an RMA and return instructions. The Seller’s Standard Limited Warranty shall apply to the Devices; provided, however, that the warranty period shall commence upon receipt of Devices by the Buyer.
TITLE AND RISK The risk of damage to or loss of a Device shall pass to the Buyer on completion of delivery to the Delivery Location. The title to the Device shall pass to the Buyer only on payment in full (in cash or cleared funds) of the Contact Price in respect of the Device. Until title to the Device has passed to the Buyer, the Buyer shall (a) store the Device separately from all other goods held by the Buyer so that they remain readily identifiable as the Buyer's property; (b) not remove, deface or obscure any identifying mark on or relating to the Device; (c) maintain the Device in satisfactory condition and keep it insured against all risks for its full price from the date of delivery; and (d) notify the Seller immediately if it takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business. The Seller may recover any Device in which title has not passed to the Buyer. The Buyer irrevocably licenses the Seller, its officers, employees and agents, to enter any premises of the Buyer, in order to satisfy itself that the Buyer is complying with the obligations above and to recover any Device in which title has not passed to the Buyer.
INTELLECTUAL PROPERTY All Intellectual Property Rights related to Devices and Services are owned by the Seller. The Seller grants the Buyer on a non-exclusive non-transferable, immediately revocable license to use trademarks, logos or designations identified by the Seller solely in connection with the Buyer’s marketing and provision of the Devices and Services to End Users; provided, however, that Buyer’s use of any such trademark, logo or designation shall be in accordance with the Seller’s policies in effect from time to time. Upon the termination of a contract for the supply of Devices or Services by the Seller to the Buyer, the Buyer shall immediately deliver up to the Seller or destroy such marketing materials used by the Buyer in connection with such contract.
DISCLAIMER OF WARRANTY THE SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR QUALITY OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING SERVICES OR DEVICES. WE CAN’T PROMISE UNINTERRUPTED OR ERROR-FREE SERVICE AND DON’T AUTHORIZE ANYONE TO MAKE ANY WARRANTIES ON OUR BEHALF.
THE BUYER RESPONSIBILITIES The Buyer acknowledges and agrees that contained with each Device are important terms and conditions, including privacy policies, applicable to End Users of the Devices (collectively "End User Terms and Conditions"). The Buyer represents and warrants that it will provide each End User all collateral originally included with the Product, including End User Terms and Conditions and will ensure each End User has read and agrees to the terms and conditions of the End User Terms and Conditions The Buyer shall defend, indemnify and hold the Seller harmless for any claims arising from the Buyer’s failure to provide the End User Terms and Conditions to an End User or Buyer’s failure to obtain End User consent to Terms and Conditions. The Buyer further agrees that it shall comply with, and shall procure that End Users are provided in a timely manner with and comply with and/or consent to, any new or updated End User Terms and Conditions notified to it from time to time (including additional terms and conditions in respect of the Services),.
LIMITATION OF LIABILITY EXCEPT IN RELATION TO “INDEMNIFICATION” HEREIN DESCRIBED, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE AND/OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, THOSE RESULTING FROM LOSS OF USE, DATA, PROFIT, OR BUSINESS, LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES, OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, LEASES, OR COMMITMENTS IN CONNECTION WITH THE BUSINESS OR GOODWILL OF THE OTHER PARTY, WHETHER ARISING IN AN ACTION OF CONTRACT, TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, OR OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except in relation to "Indemnification" herein, the Seller’s total liability and the Buyer’s sole and exclusive remedy for any claim concerning the Devices, Services, a party’s performance and/or nonperformance pursuant to or in any way related to the subject matter of this Agreement, or for damages for any causes whatsoever and regardless of the form of action, whether in contract, tort or any other legal theory, shall be limited to the aggregate of all payments from the Buyer to the Seller. Nothing in these conditions shall limit or exclude the Seller’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors, or for fraud or fraudulent misrepresentation or for any other matter which is unlawful to exclude or limit liability.
INDEMNIFICATION The Buyer will indemnify and hold harmless the Seller and its directors, officers, employees and agents from and against any and all claims, liabilities, demands, losses, causes of action, damages, settlements and expenses (including reasonable attorneys’ and experts fees) (collectively, "Claims") to the extent caused by (i) any breach of any warranty, representation or covenant made by the Buyer contained in this Agreement, or (ii) errors, omissions or fault of the Buyer. The Buyer’s obligation to indemnify and hold the Seller harmless will survive the termination or expiration of the Agreement. The Seller will give the Buyer prompt written notice of any such liability, loss, damages, settlements, or expenses.
The Seller shall defend, indemnify and hold harmless the Buyer against all liabilities, costs, expenses, damages and losses suffered or incurred by the Buyer as a result of any claim made against the Buyer for actual or alleged infringement of a third party's UK registered Intellectual Property Rights arising out of or in connection with the supply or use of the Device or Services, to the extent that the claim is attributable to the acts or omissions of the Seller, its employees, agents or subcontractors.
FORCE MAJEURE Neither Party shall be liable for any delay or failure in performance arising out of acts or events beyond its reasonable control, including, but not limited to, fires, labor disputes, embargoes, requirements imposed by government regulation, civil or military authorities, judicial decisions, acts of God, or by the public enemy.
TIME NOT OF THE ESSENCE Except in respect of the Buyer’s payment obligations, time is not of the essence in respect of this Agreement and shall not be made so by notice.
ASSIGNMENT The contract between the Buyer and the Seller for the provision of Devices and/or Services herein shall not be assigned or transferred by the Buyer without the prior written consent of the Seller.
WAIVER The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
SEVERABILITY If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
NO AGENCY This Agreement does not constitute either party as an agent, employee or representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express, or implied, on behalf of, or in the name of, the other party.
ENTIRE AGREEMENT This agreement 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 agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
GOVERNING LAW AND JURISDICTION This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party hereby irrevocably agrees that the courts of England and Wales shall have jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).