Terms and Conditions
In these conditions: “the company” means Ipsos Retail Performance Ltd; “the customer” means a person, firm or company whose order has been accepted; “the products” means all or any of the products described on the order acknowledgement; “the contract” means the contract or contracts for the sale of the products and services made between the company and the customer; “the order acknowledgement” means the company’s written acknowledgement of the customer’s order for products; “delivery” means collection by the customer from the company or delivery by the company to the customer or to such third party address as the customer directs.
Quotations by the company shall not constitute an offer. An order based on the company’s quotation shall constitute an offer, acceptance of which by the company by way of an order acknowledgement must be in writing.
3. Conditions of contract
These conditions shall be the only conditions of the contract and no other terms and conditions, warranties, undertakings or representations, expressed or implied, shall apply to the contract. If the order or any other document of the customers purports to incorporate into the contract any terms and conditions other than these conditions, delivery of the products by the company shall in each case be deemed to be made on the condition that such delivery constitutes an offer to the customer by the company to enter into the contract only subject to these conditions which shall be accepted by the customer by his taking delivery of the product. No variations of these conditions shall be effective unless agreed in writing by the company and the customer.
Unless otherwise stipulated all specifications, drawings and particulars of weight, dimensions and performance issued by the company are approximate only and the company gives no warranty or representation that the products will conform to the specification. The description and illustrations continued in catalogues, price lists and other printed matter are intended merely to present a general idea of the goods described therein and none of these shall form part of the contract.
5. Product improvement
The company may make modifications to the products as it considers appropriate provided such modifications do not materially affect the functionality of the products.
6. Delivery dates
Time of delivery shall not be of the essence. Whilst every effort will be made to adhere to the delivery dates shown in the order acknowledgement such dates are estimates only and the company shall not be liable for any losses, costs, damages or expenses suffered by the customer or any other person or company arising directly or indirectly out of any failure to meet any estimated delivery date.
7. Effecting delivery
a. The company will notify the customer when the products are ready for delivery (“Delivery Notice”).
b. If within 7 days of the delivery notice the customer fails to make suitable arrangements for delivery and installation of the products by the company, delivery of the products will be deemed to have taken place 7 days after service of the Delivery Notice. As a result risk in the products shall pass to the customer, and the company shall be entitled to demand payment of the contract price.
c. The customer shall indemnify the company against any storage and handling charges and any other costs and expenses incurred by the company in respect of any of the products between the date of deemed delivery and the actual date of delivery
d. The customer shall ensure that any necessary preparatory work (as advised by the company) is completed in accordance with the company’s stated requirements prior to the agreed delivery date, and shall ensure that the company’s employees and agents are given reasonable access to the site and to any facilities to install the products.
8. Cancellation and variations of orders
a. Subject only to condition 6 delivery of the products to the customer shall be in accordance with the delivery dates shown on the order acknowledgement.
b. The customer shall not cancel any order for the supply of the products nor vary the delivery date without the prior written consent of the company. The company may as a condition of its consent impose such charges as it considers appropriate (in its reasonable opinion) for cancellation or variations, including a charge for cancellation equivalent to the costs incurred by the company prior to the date of cancellation respect of all items and materials ordered, supplied to or manufactured by the company in connection with the supply of the products pursuant to the contract
c. In the event of the cancellation by the customer without the company’s written consent the customer shall remain liable to pay the company the full price of the products and the company shall be entitled to retain any monies received in respect thereof. If the company is unable to deliver the products to the customer due to any action on the part of the customer including lack of instruction, the company may regard such action or lack of instruction as a unilateral cancellation of the order by the customer.
d. The customer shall not return the products to the company (save under condition 12 below) without the prior written consent of the company which may be granted on such terms as the company considers fit, including the payment of the costs of inspection, refurbishment and handling the returned products. Carriage upon return shall be to the customers’ account.
a. The customers shall pay the company the price for the products shown on the order acknowledgement.
b. Prices are quoted ex-warehouse at any of the company’s warehousing facilities and the customer shall bear the costs of carriage and insurance.
c. Unless otherwise stated prices are exclusive of VAT and other taxes, which shall be applied in accordance with government legislation at the date of invoice.
d. Travel and accommodation costs shall be shall be charged in addition to installation, survey and maintenance charges where the Customer is situated outside of the UK mainland.
a. All payments shall be made in pounds sterling unless otherwise agreed in writing by the company.
b. Unless the customer has established a satisfactory credit arrangement with the company payment is due within 28 days following receipt of invoice, otherwise payment is due on or before delivery.
c. The company reserves the right to defer without penalty delivery of any products which have been ordered by the customer so long as any amounts remain outstanding for payment. In the event of non or partial payment within the payment terms set out in condition
10a) above, interest on the overdue amount shall accrue at the rate of 2% for every month or part of a month during which it remains outstanding.
d. No claim by the customer in respect of the products comprised in one delivery of products shall entitle the customer to withhold payment of the whole or any part of the proceeds payable respective any other delivery of the products.
11. Risk and Title
Risk in the products shall pass to the customer on completion of installation and testing but until the company has received payment of the full price for the products, together with all VAT therein.
a. full legal and equitable title in and to each product shall remain with the company;
b. the company shall be entitled to require the customer to return each product to the company and may enter any premises of the customer for the purpose of removing each product.
12. Maintenance and support
Where the company has agreed in its quotation to provide maintenance and support for the products, the company agrees:
a. to monitor the functionality of the products remotely;
b. to visit the premises where the products are installed at least once each year to inspect the products;
c. to advise the customer of any defects or potential defects found in the course of such monitoring or visits;
d. to attend at the premises as soon as possible after notification from the customer of any alleged defect or malfunction of the products (provided that the customer shall pay the company’s normal charges for maintenance and repair work if the malfunction or defect has been caused by any of the matters referred to in clause 13(b) below or any other actor beyond the control of the company.
a. The company warrants that products will be free of defects in materials and workmanship for a period of twelve months from the date of installation and that the products will be fit for the purpose of performing customer counting on either an individual or a shopper group basis (as requested by the customer.)
b. The warranty shall not apply to any defect or malfunction of the products which is wholly or partly caused by (i) any maintenance or repair work to the products carried out by any person other than the company or its authorised sub-contractors; (ii) tampering or interference with the products or any physical damage caused to the products by the customer’s staff or customers or other third parties; (iii) failure due to defects or lacks of repair at the customer’s premises including entrance(s) doors, or any other feature of the design of use of the premises which interferes with the products’ sight-lines; (iv) any interruption or fluctuation in power supplies to the products.
c. The above warranty states the company’s entire responsibility in relation to the products and is in substitution for all other warranties and representations, express or implied, statutory or otherwise which are hereby expressly excluded.
d. If the company is in breach of the warranty set out above, the company agrees to rectify the defect at its own expense or, at its option, to replace the products. The company shall have no further or other liability in respect of the breach save to the extent that the negligence of the company, its servants or agents has caused personal injury or death. In particular, the company shall not be liable for any indirect or consequential loss or damage (including, but not limited to loss of profits) suffered by the customer.
The products contain embedded software including software written by the company or its suppliers to enable the products to interface with the customer’s management information systems. The company warrants that such software will enable the products to deliver data accurately to the operation system used by the customer, but cannot accept any liability for any failure of the software to operate as a result of the systems configuration or other applications operated by the customer.
15. Intellectual Property
The company are and shall remain the sole owners of the copyright, design rights and any other rights in the products and any software, data or information supplied by the company. Subject to this contract, the company hereby grants to the customer a non-exclusive, non-transferable, royalty-free licence for the use of the software as set out above at clause 14 and the data as collected under the clause 18.
16. Force Majeure
The company shall not be liable to pay compensation nor shall it be ground for termination of the contract if it fails to deliver or delays delivering any products as a result (whether directly or indirectly) of any strike, lockout, fire, flood, inability to obtain materials, breakdown, delay of supplier or carrier, government act, regulation or any other cause beyond its control.
17. Mutual Promotional Benefit
The company shall be permitted to use the name, logo and approved store images of the customer as a current or former customer in promotional material. With customer’s prior written approval, such approval not to be unreasonably withheld, the company shall also produce and disseminate case studies and press releases for mutual promotional benefit. It is acknowledged and agreed that no information which might reasonably be of commercial benefit to a rival business will be included in such media communications and that the company shall liaise with customer’s own PR or communications department or agency in the creation of such case studies and/or press releases.
18. Analysis & interpretation
a. The company shall collect data from the products and provide the customer with reports, advice, interpretation and analytical outputs as stated in the order acknowledgement. These are provided as guidance only. The company and its suppliers shall not be liable for any damages whatsoever (including without limitations, damages for loss of business profits, business interruption, loss of business information or pecuniary loss) arising out of the use or inability to use the company’s reports, advice or analysis.
b. Title of ownership in all data supplied by the company shall remain with the company at all times and the company shall have the right to use such data collected in any manner in which they shall see fit provided that the customer’s confidentiality is not infringed.
a. The company will use reasonable skill and care to ensure the accuracy of its reports, models and other presentations of the analysis and interpretation. The company does not predict or assure any particular substantive results of the analysis and interpretation in advance, nor does company accept any liability for (i) customer’s interpretation of company’s reports or of other data furnished to customer by the company, (ii) any errors caused by errors in data provided to company, or (iii) resale of any analysis and interpretation or other data by customer.
b. The customer acknowledges that it has entered into this contract in reliance only on the representations, warranties promises and terms contained in this contract and, save as expressly set out herein, the company shall have no liability in respect of any other representation, warranty or promise made prior to the date of this contract unless it was made fraudulently.
c. Except as expressly provided in this contract and to the fullest extent permitted by law, company hereby disclaims all warranties, conditions or other terms implied by statute or common law with respect to the goods and services provided, including but not limited to any implied warranty of fitness for purpose.
d. The company excludes any liability of loss of contract, loss of profit, loss of revenue and loss of business, whether direct or indirect, and any incidental, indirect, exemplary, special or consequential loss or damage of any kind whatsoever arising out of or in connection with the contract whether or not such party was advised of the possibility of such damage and whether based in breach of contract, tort or any other theory at law or in equity.
e. The maximum liability of company for any breach of this contract shall be limited to 125% of fees received by it in relation to the goods and services provided thereunder.
f. Nothing in this contract shall limit or exclude either party’s liability for: a) death or personal injury caused by its negligence; b) its fraud or wilful default; c) breach of data protection legislation; and d) anything else which it cannot by law limit or exclude its liability.
20. Governing law
The construction validity and performance of this contract shall be governed in all aspects by English law.
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