1.1 In these terms and conditions, the following words have the following meanings:
means Computer Bookshops Ltd;
means any person to whom the Company supplies or sells Products;
means any CDs, DVDs and other electronic and/or digital media supplied by the Company to the Customer and the Online Services;
means the person actually using the Electronic Products (whether or not the Customer);
means an end user licence agreement to be entered into between the End User and the owner of the rights in the Electronic Products;
means any and all tangible products which the Company sells to the Customer, including but not limited to any computer and business books, Electronic Products (excluding Online Services) and associated products;
means actions, awards, costs, claims, damages, losses (including without limitation any direct or indirect consequential losses), demands, expenses, loss of profits, loss of reputation, judgments, penalties and proceedings and any other losses and/or liabilities;
means any online training and other internet services provided by or sold by the Company to the Customer;
means the Companyís relevant website.
2. Basis of Contract
2.1 The Company shall sell and the Customer shall purchase the Products in accordance with any order of the Customer which is accepted by the Company, subject to these terms and conditions.
2.2 The Company may modify these terms and conditions at any time (visit the Website for the latest version). Placing further orders for Products shall be deemed acceptance by the Customer of any modification.
2.3 These terms and conditions shall govern the purchase and sale of the Products except where varied by agreement in writing signed by a director of the Company, to the exclusion of any other terms and conditions including any terms or conditions in the Customer's order.
3.1 No order will be deemed accepted by the Company until an order confirmation is sent out by the Company or the order is fulfilled.
3.2 All details of the Products on the Website are as accurate as possible. The Company will rectify any error as soon as it becomes aware of it. Details and/or specifications for the Products are intended as a guide only.
3.3 The Company shall have the right to refuse to accept any order for Products for any reason.
4.1 Current delivery prices are available on the Website and from the Company on request.
4.2 No delivery charges will apply to the Customerís purchases of Online Services.
4.3 Claims for non-delivery, damages or short delivery must be made in accordance with Companyís policy from time to time. The current policy is set out on the Website and is also available from the Company on request.
4.4 Any dates quoted for delivery of the Products are approximate only and the Company shall not be liable for any delay in the delivery of the Products however caused. Time for delivery shall not be of the essence unless previously agreed by the parties in writing.
4.5 The Company may (in its absolute discretion) deliver the Products itself or through a third party.
4.6 Delivery for Online Services will occur as and when the Company sends subscription details to the Customer.
4.7 Delivery of Goods will be made to the address specified in the Customerís order or as agreed from time to time with the Customer. Off loading will be at Customerís risk and expense.
5. Electronic Products
5.1 If the Customer purchases Electronic Products from the Company:
5.1.1 the Electronic Products may be provided by various organisations throughout the world and, as such, may be subject to the third partyís jurisdictionís export laws. The Company may cancel the Customerís order for the Electronic Products if it and/or the service provider is legally unable to supply the Electronic Products to the Customer;
5.1.2 the Customer accepts that the Electronic Products are subject to the EULA;
5.1.3 in respect of Online Services the End User will have a time limited subscription, allowing it to access the Online Services at any time during the subscription period;
5.1.4 in respect of each subscription for Online Services, the Customer will be allocated a user name and password for the named End User.
If not a reseller, the Customer:
undertakes that only the named End User will view and access the Online Service and agrees it is responsible for all use of the Online Services by anyone using that End User's details.
5.1.5 the Customer agrees that it and the End User have no rights and/or interest in the Electronic Products other than as set out in these terms and conditions and/or the EULA;
5.1.6 the Customer accepts that, as Online Services are provided via the internet, the Company cannot guarantee continuous access and availability of Online Services. The Company will try and inform the Customer in advance of any planned downtime and will use its reasonable endeavours to keep such downtime to a minimum. The Company makes no such commitment in respect of any emergency downtime and/or downtime of the service provider who supplies Online Services and on whose server Online Services are held;
5.1.7 the Customer shall use its best endeavours to prevent unauthorised use, access, duplication or alteration of Electronic Products and will advise the Company on becoming aware of any such incident;
5.1.8 the Customer (if not a reseller) must use the Electronic Products solely for its own internal business use and must not assign, distribute, copy, publicly display, transfer, rent, timeshare and/or otherwise deal with the Customerís rights to be able to access and use the Electronic Products and/or any of the content of the Electronic Products (other than as permitted by the EULA). If the Customer is a reseller then it is permitted to resell the Electronic Products on terms no less onerous than these terms and conditions;
5.1.9 the Customer must not modify, adapt, edit or otherwise create a derivative work of the Electronic Products or remove or deface any proprietary notice of the owner contained on and/or in the Electronic Products;
5.1.10 the Customer must not reverse engineer, decompile or disassemble the Electronic Products except to the extent such restriction is not permitted by law;
5.1.11 any issues and queries which arise in respect of access to and/or use of the Electronic Products should initially be directed to the Company; and
5.1.12 provided that the Customer or End User has not accessed the Online Services and activated its subscription, within a period up to 3 months from the initial date of purchase the Company may (at its discretion) agree to cancel the subscription and allow the Customer to exchange the subscription for any other Goods offered for sale by the Company which have an equivalent monetary value to the subscription.
6. Prices and Payment
6.1 Prices charged will be the price listed in the Companyís then current price list and/or on the Website at the time of the Companyís acceptance of the order for the Products unless otherwise agreed between the Company and the Customer.
6.2 All prices are listed exclusive of VAT and any delivery charges (where relevant). If the Company discovers an error in the prices, it will inform the Customer as soon as possible and give them the option of either continuing with the order for the affected Products at the correct price or cancelling the affected element of the order. Any monies paid in advance for any such cancelled Products shall be refunded by the Company.
6.3 Payment is due at the time the Customer places the order unless otherwise agreed in writing with the Company. The Company will not dispatch any orders until it receives payment in full and in cleared funds for that order.
6.4 The Company retains title in all Goods supplied until such time as the Company has been paid for all Goods it has supplied to the Customer in full and in cleared funds. The Customer agrees to allow the Company access to its premises (and any third partyís premises) where Goods in which title remains with the Company in order for the Company to recover such Goods.
6.5 Interest will be charged on all overdue amounts at 4% over Barclays Bank Plc base lending rate from time to time in force (compounded with monthly rests) or the maximum rate applicable by law, whichever is the greater amount.
6.6 Non-payment on the due date will entitle the Company to immediate payment of all outstanding balances whether due or not and/or cancel and/or to suspend all outstanding orders for that Customer.
6.7 The Company will have the right to suspend performance of its obligations if it believes in its reasonable opinion that the Customer will not make payment in accordance with this clause.
7. Defects and Exchanges
7.1 The Goods are sold on a `Sale or Exchangeí basis in accordance with the Companyís then current policy. The current policy is set out on the Website and is available from the Company on request.
7.2 Any defects and/or faults in the Products must be notified to the Company in accordance with the Companyís policy from time to time (the current version of which is set out on the Website and is available from the Company on request). Other than for the provision of faulty or defective Online Services, the Company may require the return of any faulty Goods before the Company provides a replacement and/or a refund of the purchase price but will refund any reasonable costs incurred by the Customer in returning the Goods if they prove to be faulty.
7.3 The replacement and/or refund of the purchase price is the Customerís sole remedy for the supply of faulty Products.
8.1 Risk of damage or loss to the Goods shall pass to the Customer at the time of the delivery to the agreed address , or if the Customer fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods.
9.Intellectual Property Rights
9.1 So far as the Company is aware, the Products do not infringe any intellectual property rights of any person, nor do they contain any material which is defamatory or obscene. However, no warranty or indemnity to this effect is provided by the Company.
10. Data Protection
10.1 In placing an order with the Company, the Customer will be asked to provide certain personal information such as contact details and credit card or other payment information. The Company will comply with the requirements of all data protection legislation in force in England and Wales from time to time (where applicable).
10.2 Unless otherwise asked by the Customer not to, the Company will use the Customerís personal data (as defined by data protection legislation) (i) to process the Customerís account and order; (ii) to administer its business; (iii) for the purposes of assessment and analysis (e.g. market, customer and product analysis); and (iv) for informing the Customer of products and/or services it may offer in the future which may be of interest. The Company may also disclose customer information to anyone to whom it transfers or may transfer its business and/or its rights and duties under its contract with the Customer or to the police or any other regulatory or government authority where it is legally required to do so. Any objections to use the Customerís personal data must be made to The Company Secretary, Computer Bookshops Ltd, email: email@example.com.
11.1 All warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.1 The Company shall have no Liability to the Customer for any: (i) loss of profits and/or damage to goodwill; (ii) pure economic and/or other similar losses; (iii) special damages; (iv) aggravated, punitive and/or exemplary damages; (v) consequential losses and/or indirect losses; (vi) loss and/or corruption of data; and/or (vi) business interruption, loss of business, loss of contracts, loss of opportunity and/or production.
12.2 The Company shall have no Liability to the Customer in connection with any order which exceeds the value of the relevant order but to the extent that any of the Companyís Liability to the Customer would be met by any insurance of the Company then the Companyís Liability shall be extended to the extent that such Liability is actually met by such insurance.
12.3 Each of the limitations and/or exclusions in this Agreement shall be deemed to be repeated and apply as a separate provision for each of: (i) Liability in contract (including fundamental breach); (ii) Liability in tort (including negligence); (iii) Liability for breach of statutory duty; and (iv) Liability for breach of Common law and/or under any other legal basis except that the clause above placing financial caps on the Companyís Liability shall apply once in respect of all of the said types of Liability.
12.4 The Company does not warrant that the Customerís use of the Electronic Products will be uninterrupted and/or error free.
12.5 Nothing in these terms and conditions shall exclude or limit the Companyís Liability for death or personal injury due to its negligence or any liability which is due to its fraud or any other liability which it is not permitted to exclude or limit as a matter of law.
13.1 Otherwise than may be provided under the terms of the contract, either party may, by giving written notice, terminate a contract for the supply of Products with immediate effect if the other party:
13.1.1 fails to make any payment when due;
13.1.2 commits a material breach of any term of the contract (and where capable of remedy such breach is not remedied within 30 days of the party receiving notice requiring the breach to be remedied); and/or
13.1.3 is declared or becomes insolvent or bankrupt, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, takes or suffers any similar action in any jurisdiction or any step is taken (including, without limitation, the making of an application or the giving of any notice) by it or by any other person in respect of any of these circumstances.
13.2 If any of the events set out in clause 13.1 above occur, the Company may withhold delivery of any undelivered Products, stop any delivery of Products in transit and all monies owed by the Customer to the Company shall become due and owing.
14.1 The failure of either party in any one or more instances to insist on strict performance of one or more of the terms of this Agreement or to exercise any right or remedy under this Agreement or at law will not be construed as a waiver of any subsequent breach of the same term, any breach of any other term nor of the right to enforce another such right or remedy or the same right or remedy arising on another occasion.
14.2 Except as otherwise provided in these terms and conditions, the Customer may not sub contract, assign, transfer, charge or deal in any other manner with any of its rights and obligations under this contract without the prior written consent of the Company.
14.3 No remedy conferred by any term of this contract is intended to be exclusive of any other remedy available under this contract or at law. Each and every remedy is cumulative and is in addition to each and every other remedy available under this contract or existing at law (whether in equity, by statute, at common law or otherwise).
14.4 If any provision of this contract is held by the parties or by any court or competent authority to be illegal, invalid or unenforceable in whole or in part under any enactment or rule of law, that provision will be deemed to be deleted and not to form part of this contract and the enforceability of the remainder of this contract will not be affected thereby. If any provision of this contract is so broad as to be held unenforceable, such provision will be interpreted to be only so broad as is enforceable.
14.5 A person who is not a party to this contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this contract, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
14.6 The Company shall have no liability for any delay in performance to the extent that such delay is due to any event outside its reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, subcontractor and supplier delays, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar events. If the Company is affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance.
14.7 These terms and conditions and the Companyís order acceptance form the entire agreement and understanding between the parties and supersede any previous agreement, negotiations and discussions between the parties with respect to the subject matter of this contract. Neither party relies upon any representation made by any other party other than as expressly set out in this contract (except that no party seeks to exclude its liability for fraudulent misrepresentation.
14.8 Any notice or other information required or authorised by this contract to be given by either party to the other may be given by hand or sent by registered post, courier, or facsimile transmission to the other party at their registered office address or any other address notified by one party to the other.
14.9 The Company keeps copies of all contracts it enters into for a period of 6 years.
14.10 This contract shall be governed by English Law and the parties hereby submit to the exclusive jurisdiction of the English Courts.
14.11 All contracts for the sale of Products are placed with Computer Bookshops Ltd England and Wales under company number: 01386108 whose registered office is at 205 Formans Road, Sparkhill, Birmingham , B11 3AX, United Kingdom. The Companyís VAT number is GB378247908. All comments and queries regarding the services should be directed to Customer Services, C.B.Learning, 205 Formans Road, Sparkhill, Birmingham, B11 3AX; firstname.lastname@example.org; Telephone +44 (0)121 702 2828.
Amended 30 Sept 2007.