All orders for goods accepted by the Manufacturer are accepted subject to the following conditions which shall form part and govern the contract of sale. Acceptance of goods shall be deemed to be acceptance of these conditions of sale. Any term sought to be imposed by a Purchaser either in a document or otherwise that conflicts with or adds to these conditions is not accepted. No agent or representative of the Manufacturer has authority to vary these conditions unless accepted in writing by a Director.
These Terms and Conditions are effective from 1st Jan 2004 until further notice. KCORP Lifestyle Limited reserves the right to alter these Terms and Conditions without prior notice.
1. Definitions
Manufacturer KCORP Lifestyle Limited, a company that manufactures products branded under the “KCORP Lifestyle” Brand
Brand the “KCORP Lifestyle” brand which is the identifying trademark of the Manufacturer
Products computer hardware and home entertainment products that are marked with the Brand, including all components inside
Service means general service and support carried out by KCORP or Service Provider
Order Confirmation formal acknowledgement of the Product ordered by the Customer, sent by the Manufacturer
Customer or Purchaser a person or company purchasing Products from the Manufacturer
Reseller an entity (company, person or otherwise) purchasing Products with the specific view of reselling onto either another Reseller or a Consumer.
Consumer a private person buying Products for private use.
Service Provider the Manufacturer or its authorised Resellers and Service experts.
Price List indicative prices provided to Customers for the products which manufactured by the Manufacturer.
Director an official director who sits on the Board of Directors of KCORP Lifestyle Limited
2. Quotations, Orders and Contract
Quotations are only valid in writing and during the period that they state. If not stated, the period is 10 days. Orders may be received by writing, internet, telephone or fax but are only binding when accepted by the Manufacturer in an Order Confirmation. Please check the Order Confirmation and notify the Manufacturer of any mistake in writing immediately or the details stated in the Order Confirmation will apply to this Agreement. The Manufacturer reserves the right to change Products at any time but guarantees you at least equivalent functionality and performance.
3. Payment and Price
(a) Products, prices, taxes and delivery charges are as shown on the invoice. Changes to exchange rates, duties, insurance, freight and purchase costs (incl. for components and Services) may cause the Manufacturer to adjust prices accordingly.
(b) The Manufacturer reserves the right to vary the quoted price for the goods by upward additions in accordance with market conditions at the date of actual supply and the Purchaser shall pay such additions in addition to the quoted price. Price Lists do not constitute an offer.
(c) All invoices are due for payment in compliance with the terms shown on the invoice. Payment is to be made in sterling unless otherwise agreed in writing by a director or indicated specifically on the invoice.
(d) All overdue accounts will be charged, on a daily basis, commercial interest at 5% above the base rate of the HSBC Bank plc obtaining at the time.
4. Availability of Goods
The Manufacturer will use its best endeavours to comply with the date named for despatch or delivery which date is given and intended as estimate only and is not to be the essence of the contract. If owing to non-availability of the goods or any other causes beyond the Manufacturer's control the Manufacturer shall be unable to effect delivery hereunder it shall be at liberty to determine the contract or part thereof by giving notice in writing to the Purchaser.
5. Design Variation
Whilst the Manufacturer makes every effort to ensure that goods supplied correspond to in every respect with the sample, specification or description provided as the case may be, the Manufacturer is not responsible for the minor variations in specification, in colour or other design features, and no such minor variation shall entitle the Purchaser to rescind the contract or shall be the subject of any claim against the Manufacturer by the Purchaser.
6. Property and Risk
For so long as any amounts remain owing from the Purchaser to the Manufacturer (whether immediately due or not) title to the property of the goods shall remain in the Manufacturer and ownership will not pass to the Purchaser until the Manufacturer has received payment in full.
In the event of the Purchaser reselling the goods, if the Manufacturer has not received all amounts owing to it, the Purchaser shall account to the Manufacturer for the proceeds of any such sale and meanwhile will hold all proceeds of such sale of such goods upon trust of the Manufacturer until the Manufacturer have received such amounts in full.
At any time after the due date for payment from the Purchaser to the Manufacturer, and so long as such amounts have not been received by the Manufacturer in full, the Manufacturer, at the Purchaser’s expense, shall have the right to enter the Purchaser’s premises and remove therefrom all goods which remain the property of the Manufacturer.
If delivery is refused without the Manufacturer’s agreement, the Purchaser must pay all expenses or loss resulting from that refusal, including storage costs, until delivery is accepted. Risk of the loss of the goods passes to the Purchaser on delivery.
7. Acceptance
When the Product is received the Purchaser must inspect it for any defects or non-conformity within 7 days. After this period, the Purchaser will have accepted the Product. If the Manufacturer agrees to the return of the Product at its choosing, it must be in its original condition with packaging, a return note and proof of purchase; the return costs will also be payable by the Purchaser.
8. Claims
(a) No liability for any claim for damage or non-functionality shall be accepted unless the Manufacturer is notified in writing by the Purchaser within seven days of delivery. This period may be extended at the sole discretion of the Manufacturer where the Manufacturer's replacement policy exceeds this deadline.
(b) No liability for any claim for missing items such as manuals, etc. shall be accepted unless the Manufacturer is notified in writing by the Purchaser within seven days of delivery.
(c) No liability for any claim will be accepted in the case of goods differing in quantity or descriptions from the particulars given on the delivery note unless the Manufacturer is notified in writing by the Purchaser within seven days of delivery and the onus is on the Purchaser to prove any shortage.
(d) In the case of active third-party on-site maintenance contracts, the Purchaser accepts an obligation to use the services of the contracted third party to resolve claims under clause 5(a).
(e) In the case of Manufacturers who operate direct product support and returns procedures, the Purchaser accepts an obligation to process their claim directly through the Manufacturer.
9. Warranty
(a) Unless otherwise stated, the Manufacturer guarantees that Products will be free from defects for 12 months from delivery and spare parts for 90 days from installation or delivery date, whichever is the earlier. Should Product be defective within this period, The Manufacturer will repair or replace Product within a reasonable time. All reasonable care and endeavour shall be used to resolve problems within a realistic period in the circumstances. The Manufacturer manufactures and repairs using components, which are new or equivalent to new in accordance with industry standards and practice.
(b) The Manufacturer does not give a warranty guarantee protection for:
· damage caused by incorrect installation, use, modifications or repair by any unauthorised 3rd party including employees or other parties working for the Customer;
· damage caused by any party (except the Manufacturer) or other external force;
· fitness for any particular purpose;
· 3rd Party Products, Software and IM specified by you. You will receive the warranty or licence for these products directly from their manufacturer or licensor;
· any instruction given by you and correctly performed by the Manufacturer.
(c) You must provide the Manufacturer with all reasonable courtesy, information, cooperation, facilities and access to enable the Manufacturer to perform duties, failing which the Manufacturer shall not be obliged to perform any Service or assistance. You are responsible for the removal of non Manufacturer-supplied products during Service, the back up and confidentiality of all data affected by the Products and all of your legal and regulatory requirements.
(d) Please note that your calls to the Manufacturer may be monitored for training purposes.
10. Returned Goods
(a) The Manufacturer will not accept goods for credit or rectification unless such return has been authorised by a director, and the goods are received by the Manufacturer in stock condition, with original packaging and the Manufacturer retains the right at its sole discretion whether to accept the return of the goods or whether to rectify the goods or whether to issue a credit note in respect thereof. The Manufacturer reserves the right to charge a restocking fee on goods returned for credit which are not in stock condition.
(b) The Purchaser shall unless otherwise stated be responsible for the cost of outward and return carriage and insurance of all goods returned by the Purchaser to the Manufacturer for service or credit which goods shall be at the risk of the Purchaser until actual receipt of the goods by the Manufacturer. The onus of proof of safe delivery shall rest with the Purchaser.
(c) All items returned to the Manufacturer by prearrangement and found to contain no fault, will be subject to a 25% restocking charge, providing the goods are in original stock condition. Any downward variation of this restocking charge shall be at the sole discretion of the Manufacturer.
(d) No credit shall be allowed for goods until they have been received complete.
11. Consequential Loss
The extent of the Manufacturer liability to the Purchaser for any default or breach whatsoever and howsoever arising shall in no case exceed the invoice value of the goods and the Manufacturer shall in no circumstances whatsoever be liable to the Purchaser in respect of any loss or damage whether suffered by the Purchaser or any customer of the Purchaser and whether direct, indirect, consequential, or however else arising.
12. Intellectual Property (IP)
(a) The Manufacturer indemnifies the Purchaser from all costs and liabilities from any claim that use of Product infringes any 3rd party IP. The Manufacturer may recall and exchange or modify the Product or refund the Purchaser, minus depreciation in this event.
(b) The Purchaser indemnifies the Manufacturer for any of IM or IP specified or owned by the Purchaser and integrated into the Product. The Manufacturer is allowed to litigate, negotiate and settle claims and the Purchaser must assist the former in doing so (except where IM or IP specified or owned by you is allegedly infringing) when litigation is directly related to your Product.
(c) The Manufacturer retains all Manufacturer-owned IP in Product.
(d) The Purchaser must notify the Manufacturer immediately of any infringing or unauthorised use of the Product or IP in it.
(e) The Manufacturer does not indemnify you for
i. 3rd Party Products and Software,
ii. unauthorised modification, or
iii. any claim caused by the use of Products in conjunction with anything not supplied by the Manufacturer
13. Export Control
You acknowledge that Product may include technology and Software which is subject to US and EU export control laws and laws of the country where it is delivered or used: you must abide by all these laws. Product may not be sold, leased or transferred to restricted / embargoed end users or countries or for a user involved in weapons of mass destruction or genocide without the prior consent of the US or competent EU government. You understand and acknowledge that US and EU restrictions vary regularly and depending on Product, therefore you must refer to the current US and EU regulations.
14. Force Majeure
The Manufacturer is not liable for delays in performance (including delivery or Service) caused by circumstances beyond its reasonable control and will be entitled to a time extension for performance; examples include strikes, terrorist acts, war, supplier / transport / production problems, exchange fluctuations, governmental or regulatory action and natural disasters. If this lasts more than 2 months, this Agreement may be terminated by either party without compensation.
15. Confidentiality
Each party must treat all information received from the other marked "confidential" or reasonably obvious to be confidential as it would treat its own confidential information.
16. Termination
(a) The Manufacturer may terminate this Agreement with immediate written notice if the Customer:
i. fails to pay on time
ii. breaches or is suspected by the Manufacturer to have breached export control laws
(b) Either party may terminate if the other
i. commits a material or persistent breach of this Agreement and fails to remedy this within 30 days of written notice from the other; or
ii. becomes insolvent or is unable to pay debts as they fall due.
17. Your obligations as a Consumer
(a) You are responsible for:
i. your own choice of Product and its suitability for purpose;
ii. your telephone & postal charges in contacting the Manufacturer, if any;
iii. any special instructions given by you;
iv. all IM, its performance, licences, authorisations and any unused IM.
(b) You must provide the Manufacturer with all reasonable courtesy, information, cooperation, facilities and access to enable the Manufacturer to perform duties, failing which the Manufacturer shall not be obliged to perform any Service or assistance. You are responsible for the removal of non Manufacturer-supplied products during Service, the back up and confidentiality of all data affected by the Products and all of your legal and regulatory requirements.
(c) Please note that your calls to the Manufacturer may be monitored for training purposes.
18. Data Protection
Your data will be held and/or transferred in strict accordance with the applicable data protection laws and the Manufacturer’s data protection registration. You consent to your personal data being transferred to the Manufacturer’s associate companies outside of the EEA. You may instruct the Manufacturer not to use your data for direct marketing purposes.
19. Consumer Rights
If you are a Consumer you may cancel your purchase at any time within 7 working days of receipt without cause and receive a refund of the Price paid. To do this you must inform the Reseller in writing and return the products immediately, in the same condition you received them and at your own cost and risk. Any statutory Consumer rights are unaffected by this Agreement. This does not apply to any business customer or user.
20. Jurisdiction
English law and the exclusive court jurisdiction of the English courts will apply to this Agreement. The Vienna Convention on Contracts for the International Sale of Goods is excluded
21. Miscellaneous
If any part of the Agreement is found to be invalid or unenforceable by a court, the rest is unaffected. The Manufacturer may subcontract, assign or transfer its obligations or rights to a competent third party whether in whole or in part. You may not assign or transfer any of your obligations. All notices must be in writing (by hand, email, fax or 1st class post deemed delivered 48 hours after posting) and sent to a legal officer of either party