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Terms and conditions
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Terms and Conditions of supply of software products
This document (together with the documents referred to in it) tells you the terms and
conditions on which we supply any of the software products ("Product" or "Products")
listed on our websites
- http://www.wellkeen.com and
("Our Sites" or "Sites") to you.
Please read these terms and conditions carefully before ordering any Products from our Sites. You should understand that by ordering any of our Products, you agree to be bound by these terms and conditions. You should print a copy of these terms and conditions for future reference. During the on-line order process you will be asked to tick a check-box indicating your acceptance of these terms and conditions. Please understand that if you refuse to accept these terms and conditions, you will not be able to order any Products from our Sites.
Your use of any software Product supplied by Well Keen Limited will also be governed by the terms of a Software Licence Agreement.
1. INFORMATION ABOUT US
1.1 Our Sites are operated by Well Keen Limited ("we" or "Well Keen"). We are registered in England under company number 4766599 and with our registered office at Enterprise House, 5 Roundwood Lane, Harpenden, Hertfordshire, AL5 3BW. Our main trading address is our registered office. Our VAT number is 829 1635 14.
2. SERVICE AVAILABILITY
Our Sites are only intended for use by businesses resident in the UK or other European Community countries and those businesses resident in Australia, Canada, New Zealand and the United States of America ("Serviced Countries"). We do not accept orders from individuals nor do we accept order from businesses outside of the Serviced Countries.
3. YOUR STATUS
By placing an order through our site, you warrant that:
- (a) You are a business customer; and
- (b) You are legally capable of entering into binding contracts; and
- (c) Your business is in one of the Serviced Countries; and
- (d) You are accessing our site from that country.
4. HOW THE CONTRACT IS FORMED BETWEEN YOU AND US
4.1 After placing an order, you will receive an e-mail from us acknowledging that we have received your order. Please note that this does not mean that your order has been accepted. Your order constitutes an offer to us to buy a Product. All orders are subject to acceptance by us, and we will confirm such acceptance to you by sending you an e-mail that confirms that either the Product has been dispatched or that provides a download-link from which a software Product may be retrieved (the "Dispatch Confirmation"). The contract between us ("Contract") will only be formed when we send you the Dispatch Confirmation.
4.2 The Contract will relate only to those Products whose dispatch we have confirmed in the Dispatch Confirmation. We will not be obliged to supply any other Products which may have been part of your order until the dispatch of such Products has been confirmed in a separate Dispatch Confirmation.
5. OUR STATUS
5.1 foreCASH and foreCASH sb10 are proprietary software products of Well Keen Limited and are sold on our on behalf.
5.2 Please note that in some cases, we accept orders as agents on behalf of third party sellers. The resulting legal contract is between you and that third party seller, and is subject to the terms and conditions of that third party seller, which they will advise you of directly. You should carefully review their terms and conditions applying to the transaction.
5.3 We may also provide links on our site to the websites of other companies, whether affiliated with us or not. We cannot give any undertaking, that products you purchase from third party sellers through our site, or from companies to whose website we have provided a link on our site, will be of satisfactory quality, and any such warranties are DISCLAIMED by us absolutely. This DISCLAIMER does not affect your statutory rights against the third party seller. We will notify you when a third party is involved in a transaction, and we may disclose your customer information related to that transaction to the third party seller.
6. CONSUMER RIGHTS
6.1 Well Keen's products are not available to consumers and consumers should not attempt to purchase products from us.
6.2 If in error, not withstanding clauses 3(a) and 6.1, you are deemed to have contracted with us as a consumer, you may cancel a Contract at any time within seven working days, beginning on the day after you received the Products. In this case for Products returned by you within the seven-day cooling-off period, you will receive a full refund of the price paid for the Products. You will be refunded the cost of sending the item to you. However, you will be responsible for the cost of returning the item to us.
6.3 To cancel a Contract, you must inform us in writing and return the Product(s) to us immediately, in the same condition in which you received them, and at your own cost and risk. As well as returning any CDs and manuals, you must warrant in writing that you have permanently deleted the software, including any legitimate back up copies, from your computer(s), network and backup media and that you have not made yourself, or allowed any other person to make, any further surviving copies of the software.
6.4 You will not have any right to cancel a Contract for the supply of any of the following Products:
- foreCASH and foreCASH sb10.
7. AVAILABILITY AND DELIVERY
Your order will be fulfilled by the delivery date set out in the Dispatch Confirmation or, if no delivery date is specified, within 30 days of the date of the Dispatch Confirmation, unless there are exceptional circumstances.
8. RISK AND INTELLECTUAL PROPERTY RIGHTS IN THE PRODUCTS AND SERVICES
8.1 The Products will be at your risk from the time of delivery.
8.2 You acknowledge that all Intellectual Property Rights in the Product belong and shall belong to us or, if applicable, the third party seller and that you shall have no rights in or to the Product other than the right to use it in accordance with the terms of the Software Licence Agreement.
8.3 If a third party successfully claims that one of our Products infringe that third party's intellectual property rights we shall be entitled to replace the Product free of charge or, at our discretion, refund to you the price, or if the Product is charged for use on a periodic basis, the fees for the last three months of use, of the Product, and to withdraw the Product from use. We are not accountable to you in any other way. In particular we shall not be responsible for any intellectual property rights claims arising from the modification or customisation of the Product made by you or on your instructions.
9. PRICE AND PAYMENT
9.1 The price of any Products will be as quoted on our Sites from time to time, except in cases of obvious error.
9.3 Prices are liable to change at any time, but changes will not affect orders in respect of which we have already sent you a Dispatch Confirmation.
9.4 Our Sites contain a large amount of information and it is always possible that, despite our best efforts, some of the Products listed on our Sites may be incorrectly priced. We will normally verify prices as part of our dispatch procedures so that, where a Product's correct price is less than our stated price, we will charge the lower amount when dispatching the Product to you. If a Product's correct price is higher than the price stated on our Sites, we will normally, at our discretion, either contact you for instructions before dispatching the Product, or reject your order and notify you of such rejection.
9.5 We are under no obligation to provide the Product to you at the incorrect (lower) price, even after we have sent you a Dispatch Confirmation, if the pricing error is obvious and unmistakable and could have reasonably been recognised by you as a mis-pricing.
9.6 Payment for all Products must ordinarily be made by bank standing order or electronic bank transfer. Payment by cheque carries a surcharge of £5 per cheque presented.
10. OUR REFUNDS POLICY
10.1 When you return a Product to us (for instance, because you have cancelled the Contract between us, or have notified us in accordance with paragraph 20 that you do not agree to any change in these terms and conditions or in any of our policies, or because you claim that the Product is defective), we will examine the returned Product and will notify you of your refund via e-mail within a reasonable period of time. We will usually refund any money received from you using the same method originally used by you to pay for your purchase. We will usually process the refund due to you as soon as possible and in any case within 30 days of the day we received your cancellation or the day we confirmed to you via e-mail that you were entitled to a refund for delivery of the defective Product.
10.2 As well as returning any Product CDs and manuals, you must warrant in writing that you have permanently deleted the software relating to that Product, including any legitimate back up copies, from your computer(s), network and backup media and that you have not made yourself, or allowed any other person to make, any further surviving copies of the software.
10.3 Software Products supplied on the basis of a one-off charge which are returned by you because of a material defect will be refunded in full during the first six months following purchase. Thereafter the amount refunded will be reduced by 3% for each full calendar month since the date of Dispatch Confirmation. Where a monthly or other periodic fee is charged for the use of software any refund is limited to the fees charged in the previous three months net of any fees outstanding.
11. OUR LIABILITY
11.1 We warrant to you that any Product purchased from us through our Sites is of satisfactory quality.
11.2 Our liability in connection with any Product purchased through our site is strictly limited to the purchase price of that Product. Further limitations may be specified in the associated Software Licence Agreement.
11.3 This does not include or limit in any way our liability:
- (a) For death or personal injury caused by our negligence;
- (b) Under section 2(3) of the Consumer Protection Act 1987;
- (c) For fraud or fraudulent misrepresentation; or
- (d) For any matter for which it would be illegal for us to exclude, or attempt to exclude, our liability.
11.4 We accept no liability for any loss of income or revenue, loss of business, loss of profits or contracts, loss of anticipated savings, loss of data, waste of management or office time or for any indirect or consequential loss or damage of any kind however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
11.5 Where you buy any Product from a third party seller through our site, the seller's individual liability will be set out in the seller's terms and conditions.
12. IMPORT DUTY
12.1 If you order Products from our Sites for delivery outside the UK, they may be subject to import duties and taxes which are levied when the delivery reaches
the specified destination. You will be responsible for payment of any such import duties and taxes. Please note that we have no control over these charges and cannot predict their amount. Please contact your local customs office for further information before placing your order.
12.2 Please also note that you must comply with all applicable laws and regulations of the country for which the products are destined. We will not be liable for any breach by you of any such laws.
13. WRITTEN COMMUNICATIONS
Applicable laws require that some of the information or communications we send to you should be in writing. When using our Sites, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
All notices given by you to us must be given to Well Keen Limited at Enterprise House, 5 Roundwood Lane, Harpenden, Hertfordshire AL5 3BW or to firstname.lastname@example.org. We may give notice to you at either the e-mail or postal address you provide to us when placing an order, or in any of the ways specified in paragraph 13. Notice will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
15. TRANSFER OF RIGHTS AND OBLIGATIONS
15.1 The contract between you and us is binding on you and us and on our respective successors and assigns.
15.2 You may not transfer, assign, charge or otherwise dispose of a Contract, or any of your rights or obligations arising under it, without our prior written
15.3 We may transfer, assign, charge, sub-contract or otherwise dispose of a Contract, or any of our rights or obligations arising under it, at any time during
the term of the Contract.
16. EVENTS OUTSIDE OUR CONTROL
16.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by events outside our reasonable control ("Force Majeure Event").
16.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
- (a) Strikes, lock-outs or other industrial action.
- (b) Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war.
- (c) Fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster.
- (d) Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
- (e) Impossibility of the use of public or private telecommunications networks.
- (f) The acts, decrees, legislation, regulations or restrictions of any government.
16.3 Our performance under any Contract is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.
17.1 If we fail, at any time during the term of a Contract, to insist upon strict performance of any of your obligations under the Contract or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
17.2 A waiver by us of any default shall not constitute a waiver of any subsequent default.
17.3 No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with paragraph 14 above.
If any of these terms and Conditions or any provisions of a Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
19. ENTIRE AGREEMENT
19.1 These terms and conditions and any document expressly referred to in them represent the entire agreement between us in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
19.2 We each acknowledge that, in entering into a Contract, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to such Contract except as expressly stated in these terms and conditions.
19.3 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date of any Contract (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in these terms and conditions.
20. OUR RIGHT TO VARY THESE TERMS AND CONDITIONS
20.1 We have the right to revise and amend these terms and conditions from time to time.
20.2 You will be subject to the policies and terms and conditions in force at the time that you order products from us, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these terms and conditions before we send you the Dispatch Confirmation (in which case we have the right to assume that you have accepted the change to the terms and conditions, unless you notify us to the contrary within seven working days of receipt by you of the Products).
21. LAW AND JURISDICTION
Contracts for the purchase of Products through our site will be governed by English law. Any dispute arising from, or related to, such Contracts shall be
subject to the non-exclusive jurisdiction of the courts of England and Wales.