InvictaWiz Limited, General Terms & Conditions.
1. DEFINITIONS AND EFFECT OF CONDITIONS:
(a) "The Company” or "Invictawiz” means INVICTAWIZ LTD., of 9 Eastmead Avenue, Ashford, Kent, TN23 7SB
(b) “Us”, “We” or “Our” as described in Clause 1(a).
(c) “The Customer” or “the Subscriber” means the consumer, business
or reseller whose name and address is set out in the application form
for the supply of the Goods and Services (as hereinafter defined) by
the Company to the Customer.
(d) “You” or “Your” as described in Clause 1(c).
(e) "Goods" are those goods specified on your order/invoice.
(f) “Service" is the service provided by us to enable you to gain
access to the Internet via the telecommunications network and any
Services and facilities provided by us in connection with the Service,
those Services specified on your order/invoice, also as described in
the Company's literature at the date of completion of the afore
mentioned order/invoice.
(g) "Subscription Fee" is the periodic fee payable by Customers,
Resellers or both for which Customers will receive the ongoing
Services.
(h) "Law" means the general laws of England and Wales from time to
time including (without prejudice to generality of the foregoing) the
criminal law, the laws relating to intellectual property and all laws,
rules and regulations relating to or touching upon the publication or
transmission of material or data in electronic form.
(i) “Contract” means the contract between the Company and the
Customer for the provision of the Services, including any attached
schedules or variation made.
(j) "Terms" and “Conditions” means in order of precedence this Terms
and Conditions Agreement and any other document that the Company and
Customer agree in writing. These conditions shall apply to and be
incorporated into every agreement between the Company and the Customer
under which the Company supplies Goods and/or Services at the request
of the Customer.
(k) “Agreement” means the agreement between the Company and the Customer for the supply of Goods and/or Services.
(l) “Terminate Service” and “termination of Service” means
indefinite and permanent ceasing of the Customer's Service by the
Company.
(m) “Suspend Service” and “suspension of Service” means temporary
blocking or restriction of the Customer"s Service by the Company, but
does not necessarily mean termination of the Service.
(n) These Terms and Conditions shall take precedence over any terms
and conditions of the Customer and shall not be varied without the
written consent of a Director of the Company.
(o) Nothing in these conditions will affect any of the Customers'
statutory rights as a consumer under the Sale of Goods Act 1979 (as
amended at any time) or any other applicable legislation and to the
extent that the Customer enters into the agreement as a consumer it
will be a consumer contract under these conditions.
(p) Completion of the relevant application form or connection to the
service for the first time is deemed to be an agreement to these Terms
and Conditions and our Acceptable Use Policy (AUP), copies of which are
available on request or on our website at www.invictawiz.com/tandc
(q) Words in the singular shall include the plural and vice versa,
reference to any gender shall include the others and references to
legal persons shall include natural persons and vice versa.
(r) The headings of these conditions are for convenience only and shall have no effect on the interpretation thereof.
2. AMENDMENTS:
The Company reserves the right to modify, suspend or discontinue any
or all of the Services at its sole discretion, and without prior
notice. The Company also reserves the right, on giving prior notice
on-screen and/or in writing, to reasonably alter these Terms at any
time.
3. DELIVERY:
(a) Any delivery dates quoted whether verbally or otherwise are
estimates only and in regard to any such date time shall not be of the
essence.
(b) Delivery of the Goods to the Customer"s address or any other
place stipulated by the Customer shall constitute delivery and the risk
therein shall pass upon such delivery to the Customer.
(c) The Company shall be entitled to make partial deliveries by
instalments and these Conditions shall apply to each partial delivery.
(d) The Company shall not be held responsible for delays caused by
data carriers or telephone companies providing local loops, nor for
delays caused by the Customer or the management of the Customer’s
premises, nor for other factors outside of the Company’s control. Order
processing will commence and delivery time will be reckoned from the
date of receipt of initial payment from the Customer.
4. FORCE MAJEURE (Frustration, etc.):
(a) The Company will not be deemed to be in breach of any of its
obligations under the agreement or otherwise be liable to the customer
due to any delay in performing or any failure to perform any such
obligations by reason of any cause or event beyond the Company’s
control (including without limitation breakdown of plant machinery,
strike or industrial dispute, shortage of materials or failure of or
delay in receiving supplies, act of war (whether declared or not), act
of terrorism, Act of God, sabotage, inclement weather, fire, explosion,
flood, or any law regulation of any government or any local or
municipal authority, any failure or delay in providing any or defect in
or fault relating to any telephone line or lease-line or other work
supplied or to be supplied by any third party in connection with the
agreement.
(b) If any such events continue for more than 90 days then either
the Company or the Customer may terminate the Agreement forthwith by
written notice to the Customer or the Company respectively without
prejudice to the accrued rights of either the Company or the Customer.
5. PRICE:
(a) Unless otherwise stated any prices quoted by the company or payable to the company under the agreement are:
i. Exclusive of VAT (value added tax) and any other taxes.
ii. Exclusive of carriage, packing and insurance.
iii. Exclusive of any release certificates and the Company shall charge extra in respect of the above items.
iv. In British pounds sterling.
(b) Prices are those prevailing at the time the order form was signed or as otherwise provided in the Agreement.
6. PAYMENT:
(a) All payments will be made in advance of receiving services. If
any services are to be paid for monthly, the Customer must complete for
the duration of the Agreement a direct debit or standing order form or
credit card authorisation in the Company's favour in respect of those
payments.
(b) The Company may suspend the provision of any of the services
without notice if any sum payable by the Customer in relation to the
agreement is not paid on the due date for payment except to the extent
that in the case of a consumer contract that results from the Customer
lawfully offsetting against that sum an amount equal to any sum owed by
the Company to the Customer for any breach of the agreement or the
Customer persists in using the service other than in accordance with
the agreement after notice from that Company requiring the Customer to
comply with our AUP (acceptable use policies, which are available on
the Internet and may be included with this ) or the Customer fails to
perform any of its obligations under the Agreement. This will not
relieve the Customer of the obligation to pay the agreed amount for the
entire period of service or any other obligation to the Company.
(c) Where payment of any sum payable under the Agreement that is not
paid by the Customer by the due date, the Company reserves the right to
charge the Customer interest on any unpaid amounts calculated at 3%
above National Westminster Bank plc's base rate for the time being in
force and on a daily basis.
(d) No cash or other discount is allowed unless agreed with written consent by a Director of the Company.
(e) If the company is able to deliver some of the Goods and/or
Services subject of the Agreement but is unable to deliver all the
Goods and/or Services due to causes beyond its control (including but
not limited to the examples referred to in Clause 4 hereof) the
customer shall pay for such Goods and/or Services received as
delivered.
7. TITLE OF GOODS AND/OR SERVICES
(a) Immediately upon delivery to the customer of any Goods and/or
Services agreed to be sold by the Company to the Customer, the Customer
shall become the bailee thereof and the legal title thereto shall be
retained by the Company as bailor. Notwithstanding the delivery and the
passing of risk, the legal beneficial ownership of the goods will
remain with the Company until the Company has received payment in full
of:
i. All sums payable to the Company in relation to the Agreement.
ii. All other sums payable by the Customer to the Company, when the
sums referred to in Clause 7(a)(i) are paid, in respect of the supply
of any other Goods and/or Services.
(b) Notwithstanding the terms of Clause 7(a) above, the Customer
shall be entitled before discharging its obligation to the Company to
resell any of the Goods and/or Services. Upon such re-sale and without
derogating from the Company's other remedies (including its right to
trace) the Customer shall hold the proceeds of sale upon trust in a
separate account first for the Company for an amount equivalent to all
sums owed by the Customer to the Company in relation to the agreement
(and all other monies payable by the Customer to the Company, when
those sums are paid, for the supply of any other Goods and/or
Services). The Customer will pay that amount forthwith to the Company
and will hold any balance in trust for the Customer.
(c) Title of Goods and/or Services supplied under a rental
arrangement remains with the Company. The Customer must make adequate
insurance arrangements to cover such Goods for loss or damage howsoever
caused. Such goods must be surrendered to the Company immediately upon
termination of contract.
8. DRAWINGS:
(a) All drawings, descriptive weights, dimensions and the
descriptions and illustrations contained in the sales literature and
price lists are approximate only and do not form part of this
Agreement. In addition, drawings or other technical documents issued
either before or after the conclusion of the Agreement for the use or
information of the Customer and such other information of the Customer
and as may be supplied to the Customer, including specifications shall
not be copied, reproduced or communicated to any third party without
the Company's prior written consent.
9. LOSSES OR DAMAGE OF GOODS IN TRANSIT
(a) The company will not be responsible for damage to any of the
Goods or loss of the Goods or part thereof in transit unless the
Customer gives written notice of a claim to the Company and to the
carrier:
i. In the case of damage, within 3 days after having received the Goods, and
ii. In the case of loss or shortage of delivery, within 3 days of
the date of delivery of the Goods under the relevant consignment.
(b) The Customer will be asked to sign a copy of the Company’s
carrier’s delivery manifest as acknowledgement of receipt of Goods. The
Customer should inspect the Goods carefully, as an unqualified
signature shall be deemed to signify the Customer's acceptance that the
Goods are in good condition.
10. GUARANTEE
(a) If within 12 calendar months of there being delivered any defect
in the Goods is discovered which is directly due to faulty materials or
workmanship, or if a valid claim is made by the Customer under the
terms of Clause 9(a)(i) hereof, the Company will at its option remedy
the defect or damage by replacement or repair or give credit to the
Customer.
(b) The guarantee will be subject to the following conditions:
i. It will not apply to any defect or damage resulting from any
alteration or modification to the Goods without the Company's prior
written consent, incorrect storage, normal wear and tear, overloading,
misuse, abnormal conditions of use, incorrect installation by anyone
other than the company, maintenance or repair not carried out by the
Company, use which is not in accordance with the Company's or the
manufacturer's instructions, any act or omission of the Customer or any
third party or any fault in any other goods or equipment not supplied
by the Company, or any other goods or equipment not deemed in writing
by a Director of the Company as wholly and safely compatible for use
with Goods supplied by the Company.
ii. The Customer must complete and return the Company's Returns
Authorisation form in relation to any such defect or damage. If it
appears to the Company from the information in the completed form that
such defect or damage is covered by the guarantee, a Returns
Authorisation number (RMA Number) will be issued confirming that the
Customer may return the Goods concerned, subject to verification by the
Company, after inspection of the Goods. RMA numbers are valid for 28
days from the date of issue, and if the Goods are not returned during
that period, a new RMA number must be requested.
iii. Allegedly defect or damaged Goods must be returned to the
Company carriage paid at its address stated in Clause 1(a), with the
Good’s original packing and, where applicable, all related manuals and
accessories as well as a copy of the completed Returns Authorisation
form and a valid RMA number, clearly marked on the outside of the
packaging. If any are without a valid RMA number, delivery will be
refused. Reasonable carriage costs of returning by road or rail
defective Goods covered by the warranty under a consumer contract will
be reimbursed.
iv. If the Customer makes any claim in relation to any Goods falling
outside the terms of the guarantee the company may charge the customer
for inspection and No Fault Found charges in accordance with the
charges set out on the Company's Returns Authorisation form which is
available on request. The Customer must collect any returned Goods
within 5 days of notification that they are not covered by the
guarantee or on written instructions from the Customer the Company will
dispose of the goods. Failure to do so will result in the Customer
having to pay storage charges of £2.00 plus VAT per unit for each day
or part of a day from the end of that period until collection.
v. The guarantee will apply to Goods replaced or repaired under the guarantee for the balance of the original guarantee period.
vi. Unless the Company otherwise decides, credit will only be given
if the Customer notifies the Company of the alleged defect or damage
within 3 days of the Customer's receipt of the goods.
11. EXCLUSION OF LIABILITY
(a) Except where provided otherwise in these conditions, the Company
shall be under no liability of whatsoever kind however caused, whether
or not due to negligence or wilful default of the company or its
servants or agents arising out of or in connection with the Goods
and/or Services. All conditions, warranties or other terms, whether
express or implied, statutory or otherwise, except with regard to the
Company's title to the Goods are hereby expressly excluded providing
that nothing in this paragraph shall exclude or restrict any liability
of the Company for death or personal injury resulting from the
negligence of the Company or its servants or agents, and this sub
paragraph (a) of Clause 11 will not apply to a consumer contract.
(b) In any event, the Company liability shall be limited to direct loss and shall not include indirect or consequential loss.
(c) The company shall not be liable for the loss or damage to
software programmes during the repair or upgrade of any goods, whether
or not the same are under warranty.
(d) Given the nature of the Internet, it is impossible to guarantee
the bandwidth available between the Company's Customer and another site
elsewhere on the Internet. This depends upon the bandwidth at the other
site and the bandwidth available on the various circuits over which
traffic between the Customer and other site passes.
(e) It is impossible to guarantee connectivity to any particular
part of the global Internet at any time, but the Company will endeavour
to increase internal connectivity and continuously improve network
resilience and connectivity.
(f) The Company is not responsible for the security of Customers
equipment connected to the Internet, or for any direct or indirect
damage caused by or through connections to the Internet.
(g) The Company's services may not be used for criminal or other
illegal purposes, nor for any purpose, which violates established
practice or protocol on the Internet or breaches our AUP, nor for any
purposes, which make unacceptable use of the network resources. All of
the following are considered unacceptable: the transmission of computer
viruses or pornography, forgery of addresses or other fields in IP
packets: unauthorised access to the network management equipment of the
company's or other Internet providers: unauthorised transmission of
copyrighted material; mail bombing; mass mailing of unsolicited
advertising material; the transmission of video or live audio; and the
use of IP multicast (unless authorized by the company).
(h) If the Company supplies the Customer with a router or other
customer premises equipment (CPE) service begins when the Company can
communicate with CPE over the private circuit provided. If the Company
is not supplying the CPE, service begins either when the Customer's CPE
can communicate with equipment over the private circuit provided or
when the Company's engineers have communicated from the Customer's
premises over the private circuit using standard test equipment
whichever comes earlier.
(i) Managed IT equipment and solutions, including but not limited to
routers and corresponding software, provided to the Customer by the
Company as part of the Services or purchased from the Company by the
Customer, are configured and tested by the Company and are supplied
configured to meet the Customer’s basic network and Internet
specifications. The Company reserves the right to refuse support of the
IT equipment and/or corresponding software if unauthorised
modifications of the configuration of the equipment has been made.
(j) The Company reserves the right to charge the Customer a
reasonable support fee for support at the Customer’s request of any
managed IT solution provided by the Company that has been deemed
invalidated due to misuse or violation of our AUP.
(k) The Customer shall be responsible for insuring any of its
equipment stored at the Company's premises and any customer premises
equipment (CPE) against any and all risks (including but not limited to
fire, theft and flood) and for obtaining such other insurance cover as
the customer in its sole discretion may consider appropriate.
12. RETURNED GOODS AND CANCELLATIONS
The Customer shall not return any goods (except in accordance with
Condition 10) or cancel any orders without the Company's previous
written consent. Such consent will not be given where Goods have been
specifically purchased by the Company to meet the Customer's
requirements. If the Company in its discretion gives consent, it
reserves the right to make a cancellation charge of 25% (or such higher
percentage as may be notified to the Customer before or when such
consent is given by the Company) of the contract price of the Goods
plus VAT.
13. COPYRIGHT, PATENTS, TRADE MARKS AND INTELLECTUAL PROPERTY RIGHTS
(a) The Customer acknowledges that rights in respect of trade marks,
trade names, copyrights, patents and other intellectual property rights
connected with the goods do not pass to the Customer.
(b) The Customer agrees to indemnify the Company against all
liabilities, costs and expenses which the Company may incur as a result
of work done in accordance with the Customer's specifications which
involve infringement of any patent or other proprietary right.
14. SUBCONTRACTING
The Company reserves the right to sub-contract any part of any work
or supply of any Goods and/or Services. The Customer cannot sub let
space without prior written consent from a Director of the Company.
15. CONSTRUCTION AND USE
The company shall not be responsible for adapting or modifying any
Goods and/or Services to conform to statutory requirements not current
at the time when the Agreement is entered into.
16. TERMINATION
(a) The Company shall be entitled by notice in writing to terminate
the Agreement without prejudice to any claim or right the Company may
otherwise make or exercise where:
i. The Customer is in breach of any term, condition or provision of the Agreement or required by law.
ii. The Customer shall go into liquidation (except for the purpose
of reconstruction) or if any petition or resolution to wind up the
Customer shall be presented or if a receiver is appointed of the
Customer's undertake property of assets or if a distress shall be
levied upon any of the Customer's property, or if the Customer shall
commit any act of bankruptcy.
(b) The Customer subscribes to the Company's Service upon signing
the Company's order form or completing and submitting the Company’s
online order form or provides written authority by fax/letter/e-mail.
These Terms and Conditions are a part of the contract between the
Customer and the Company. Unless otherwise specifically stated on
product-specific Terms and Conditions, or the Company’s order form
signed by the Customer or the Company’s online order form completed and
submitted by the Customer or stated in the customers fax/letter/e-mail
including any attached schedules variations, the Agreement will
continue for a minimum period of one year from the commencement of
Service and will automatically continue for successive annual periods
unless or until the Company or the Customer (unless he is a Dial In
Account / ADSL) gives not less than one month's written notice of
termination to the other expiring at the end of the first year or any
subsequent year or (if the Customer is a Dial Up account or ADSL
account) he or the Company gives not less than one month's written
notice to the other, expiring on or at any time after three months.
(c) The Company reserves the right to suspend or terminate a
Customer’s Service at any time, without prior notice and without
affecting any accrued rights or claims of the Company where the
Services are misused by the Customer, for non-payment of the
subscription or rental fee or any other outstanding fee or for breach
of these Terms and Conditions, the Company’s AUP (acceptable use
policy) and any other Agreement associated with the provision of the
Service. Subsequently such a Customer may be refused future account
facilities with the Company. It should be noted that such termination
will in no way indemnify the Customer against any criminal proceedings
which may be brought by the authorities of the United Kingdom or any
international legislatorial body, for such misuse.
(d) The Company reserves the right to, notwithstanding Clauses
16(a), 16(b) and 16(c), terminate a Customers account at any time
without any reason on repayment of a pro-rata sum for the unfulfilled
period of the subscription or rental fee paid by the Customer. In the
event of the Customer being in breach of any of these Terms and
Conditions or the Company’s AUP or any rules issued by the Company, the
Company will be under no obligation to reimburse the Customer under
this provision.
(e) If a Customer’s Service is suspended or terminated by the
Company for any reason described in Clause 16, the Company reserves the
right to charge the Customer for reinstatement of the Service. In the
case of the Customer Service being terminated by the Company for any
reason described in Clause 16, the Company will charge the Customer a
fee of £25.00 + VAT.
17. JURISDICTION
The agreement shall be governed by and construed in accordance with
English law and the Courts of England shall have jurisdiction to hear
all disputes arising in connection with the Agreement.
18. GENERAL
(a) This Agreement cannot be assigned in whole or in part by the
Customer to a third party but the Company may assign all or any of its
rights or obligations in relation to this Agreement. None of these
conditions can be varied without the written consent of a Director of
the Company. The Company order form signed by the Customer and these
Terms and Conditions form the entire agreement between the Company and
the Customer.
(b) The provisions of the Agreement are severable, and if any
provision or part of it is held to be invalid or unenforceable by any
court or other body of competent jurisdiction that will not affect the
other provisions or the remainder of the relevant provision.
19. CUSTOMER RESPONSIBILITIES
The Customer will:
(a) Provide and maintain the local loop between the Customer
premises and the Company if this is not in the services subscribed to.
(b) Notify the Company promptly of any failure in the local loop or
with the Company equipment installed at the Customer premises.
(c) Provide and maintain any computer hardware and software required to use the Company's Services.
(d) Keep the Company's CPE which is loaned to the Customer safe from
harm, make no attempt to modify or alter in any way, and allow the
Company's staff to remove that equipment at the Termination of Service
and indemnify the Company in respect of any loss or destruction of that
equipment until it is redeemed to the Company.
(e) Comply with the Company’s AUP (acceptable use policies) on any academic or research networks access via the Company.
20. SET OFF
The Company shall be entitled but not obliged at any time to set off
any sum payable by or any liability of the Customer to the Company
against any sum payable by or liability of the Company to the Customer
(in either case whether arising under the contract for the supply of
the goods or otherwise howsoever and whether any such liability is
present or future, liquidated or not liquidated and irrespective of the
currency or its denomination) and may for such purpose convert or
exchange any currency. Any exercise by the Company of this right will
be without prejudice to its other rights under the contract relating to
the supply of the Goods and/or Services.
Copyright © by Invictawiz Ltd.
All Rights Reserved.
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