Terms & Conditions
What is this Document?
- This document (the "conditions") forms part of an agreement between EmobileScan & you, the customer.
- The agreement is a binding document & customers should ensure that they understand it.
- We need to have an agreed written record of what we are supplying to ensure that no mistakes are made. Consequently we will not normally seek to make or agree variations to the agreement orally & will seek to ensure that changes are documented in writing.
- Our agreement is intended to comply with all of your statutory rights as a consumer. However, in the event that any uncertainty arises your statutory rights as a consumer will take priority over the agreement.
Customer - legal entity or person who buys or agrees to buy Products &/or Services from EmobileScan.
SP/IT Reseller “Software Provider/IT Reseller” - legal entity or person who buys or agrees to buy Products &/or Services from EmobileScan for recognised third party use.
Conditions - this document.
EmobileScan - the company identified in your order confirmation and/or invoice.
Description - a document forming part of the agreement which describes a product or service that customer’s may purchase from EmobileScan.
Indemnify - promise to be responsible for another's loss, damage, liability or penalty including promise to compensate for any loss, damage, liability or penalty which occurs.
Order - request by customer to purchase product or services from EmobileScan.
Order Confirmation - written acceptance by EmobileScan of customer's order.
Price - the total charge for products &/or services payable by customer to EmobileScan.
Products - an individual good (including software) as described in any current document published by EmobileScan physically &/or on its internet site (www.emobilescan.co.uk), or in any order confirmation & which customer buys or agrees to buy from EmobileScan.
Services - service & support carried out by or for EmobileScan in accordance with the service offering.
Service Offering(s) - the service options offered by EmobileScan as described in any current document published by EmobileScan physically &/or on its internet site (www.emobilescan.co.uk), or in any order confirmation.
Software - computer operating systems, middleware, applications or other software that is owned by, or licensed by, EmobileScan.
Third Party Products - products not manufactured, assembled or authored by EmobileScan that EmobileScan sells.
Third Party Software - computer operating systems, middleware, applications or other software from a third party editor or licensor.
Quotations/Orders and Changes
- EmobileScan quotations are valid only if in writing & for 30 days after the quotation date, unless otherwise stated in the quotation.
- All orders for products &/or services shall be regarded as an offer by customer to purchase products &/or services under the terms of this agreement.
- EmobileScan accepts customer's offer to purchase under this agreement & makes a binding agreement by issuing an order confirmation. Order confirmation is binding except, in the case of consumers only, where there is a discrepancy between order confirmation and what consumer ordered and where discrepancy is unacceptable to the consumer. It is recommended that customer review the order confirmation & notify EmobileScan within a reasonable period of time of any discrepancies that are noticed.
- EmobileScan reserves the right to make changes to ordered specifications but will identify any such changes in the order confirmation. EmobileScan guarantees that any such changed products will offer at least equivalent functionality and performance. EmobileScan will not make any significant variations to products or services without customer's prior agreement &, except as provided for above, will deliver product in accordance with the order confirmation.
Price and Payment
- The price that customers have to pay will be shown on EmobileScan's order confirmation and invoices.
- If agreed in advance in writing, Business / SP/IT Reseller Users are required to pay within 30 days of the date of invoice. EmobileScan may suspend delivery of product or service until full payment is received. If full payment is not received EmobileScan will be entitled to charge interest on the amount outstanding at the rate of 3% per annum on invoiced amount. If EmobileScan must recover the outstanding payment &/or product, recovery costs are to be paid by Business / SP/IT Reseller User.
- For orders to be delivered in instalments over a period of time, EmobileScan may adjust prices due to changes to exchange rates, duties, and insurance, freight, handling & purchase costs.
- The delivery date specified in the order confirmation is an estimate.
- The place of delivery is as stated in the order confirmation.
- For practical reasons, products may be delivered by instalments, which shall be communicated to customer.
- If the estimated delivery date cannot be met and the revised delivery date will exceed 30 days from the original date of order then customer will be contacted & advised of a proposed new date for delivery. If customer refuses the revised delivery date and delivery is not made within 30 days from the original date of order or prior to the specifically agreed delivery date if applicable, then customer may cancel the order without charge
Passing of Ownership & Risk
- Ownership of products passes to customer on the later of receipt by EmobileScan of full payment or delivery to customer of product. EmobileScan may recover any products supplied at any time prior to ownership passing if customer is in breach of these conditions.
- Risk meaning: a: A duty to take reasonable care of Product received and b: responsibility for damage caused to or by use, handling or storage of the product, passes to customer on delivery of products to customer or to their representative.
Acceptance of Products on Delivery, "Cooling Off" & rights of return and cancellation
- Customer should notify EmobileScan promptly: following delivery of any missing, incorrectly delivered incorrect specification or otherwise not as ordered products or products which are either in damaged packaging or are visibly damaged; following discovery of any non-visible damage or defect in product supplied.
- Where product can be returned to EmobileScan by customer under the terms of this agreement, it should be made available for collection at a time which is mutually convenient insofar as possible. Customers should act reasonably in complying with a request by EmobileScan to collect product at a particular time.
- Notwithstanding anything herein to the contrary, business users may only reject product for material non-conformity with the product description by providing written notice to EmobileScan within 7 days after delivery or otherwise shall be deemed to have accepted the products.
Statutory Rights, Warranties, Repairs, Replacements & Provision of Services
- EmobileScan will fulfil its legal obligations to repair &/or replace products. These obligations are dependent upon proper use of products & do not cover any parts of products which have been modified or repaired without EmobileScan's prior written consent. EmobileScan may ask third party servicing agents to fulfil EmobileScan's and/or licensor's legal obligations relating to the supply of that licensor's hardware and software.
- EmobileScan's obligations do not apply to the consumable components of consumable items (such as toner in printer cartridges) or if a defect is caused by an external cause such as fair wear & tear, software or hardware loaded onto or connected to product by customer where this software or hardware has not been supplied by EmobileScan, an accident, hazard, humidity control, electrical stress or other environmental conditions not commonly found in a safe working environment.
- Parts not critical to product function, including but not limited to hinges, doors, cosmetic features, and frames, are not serviced &/or repaired.
- EmobileScan's obligations under its service offerings are as stated in the descriptions for those service offerings. EmobileScan will use all reasonable endeavours to meet response times estimated in the service offerings, but actual timings may vary depending, among other factors, on the remoteness or accessibility of customer's location, weather conditions & availability of components. EmobileScan will comply with all other terms of its service offerings. Notwithstanding the above, the following are excluded from service unless stated otherwise in the service offering: local working hours, relocation, removal of non-EmobileScan supplied hardware or software, preventative maintenance, repairs to products that are functioning within industry standards including without limitation defective pixels on monitors, transfer of data or Software and viruses. Customer is responsible for removal of non-EmobileScan supplied products.
- EmobileScan does not provide EmobileScan service offerings for third party manufactured software or products but will pass to customers, to the extent that it is permitted to do so, the benefit of any warranty or guarantee given by the manufacturer or supplier of third party products.
- Service may be provided via telephone (at the normal national rate) or internet where appropriate. Additional optional value added services may be offered using premium rated services. Any such services will be clearly identified & will be provided in compliance with relevant regulations and codes applying to provision and use of premium rated services. Telephone calls may be recorded for training purposes. Customer must provide EmobileScan with all reasonable courtesy, information & cooperation to enable EmobileScan to deliver the services & shall be responsible for all telephone & postal charges in contacting EmobileScan.
- EmobileScan makes repairs as required at law &, if applicable, under service offerings by using components which are new or equivalent to new in accordance with industry standards and practice. Products will be repaired using parts which will work for the balance of the statutory entitlement period and/or the service offering period relating to the product into which they are installed. If the part is installed into a product for which this statutory entitlement period and/or the service offering period (as applicable) has less than 90 days to run at the date of installation then the part itself will continue to work for at least 90 days after the date upon which it was installed.
- EmobileScan owns any product or parts that are removed during repair. EmobileScan may require customer to return removed parts to EmobileScan for reconditioning, analysis or for environmental reasons.
- If customer does not return removed parts EmobileScan then may charge a fee of which customer will be informed prior to charge. The fee will reflect the cost incurred by EmobileScan in retrieving the part(s), &/or the cost of procuring another component to recondition &/or arising from failure to comply with environmental obligations as a result of the customer's failure to return the Product or part.
- The charge referred to in points 8 and 9 above will not apply to consumers returning defective parts which have been replaced in accordance with statutory rights.
- Products, software & services sold will correspond to their description (except as stated in “Point 4, Quotations/Orders and Changes” above).
- Business users must satisfy themselves as to the suitability of the description for their needs. EmobileScan does not warrant fitness for any particular purpose. Fitness for use in any particular manner or environment must be agreed in writing with EmobileScan prior to purchase.
- Business users are not automatically entitled to repair or replacement other than as described in a service description or as otherwise agreed by EmobileScan. EmobileScan shall have no liability or obligation for defects in products or failure to remedy defects except as expressly provided under this agreement.
- Except as expressly provided herein, no warranty, express or implied, as to the condition, quality, performance, merchantability, or durability of products is given or assumed by EmobileScan & all such warranties are hereby excluded.
Frustration/Circumstances beyond the Parties' control ("Force Majeure")
- Neither party is responsible for non-performance in case of circumstances beyond its reasonable control ("Force Majeure") including without limitation, strikes by non EmobileScan employees, terrorist acts, war, exchange fluctuations, governmental or regulatory actions, natural disasters, severe weather, unforeseeable transport or production problems affecting companies that supply EmobileScan.
- If a Force Majeure event occurs & EmobileScan cannot deliver within the period set out in the order confirmation, EmobileScan will act in Point accordance with the terms of “Point 4 Delivery” above.
- If the Force Majeure event lasts longer than 60 days then EmobileScan shall have the right to terminate the agreement by providing notice in writing to customer. No compensation to Consumer will then be due in these circumstances.
- EmobileScan accepts liability for any loss or damage to private property, death or personal injury caused by the products & services supplied, the negligence or deliberate misconduct of EmobileScan, or any employees, agents or subcontractors acting on EmobileScan's behalf, provided, however, that in all cases, except for death or personal injury (where there shall be no limit on liability), EmobileScan's liability for losses suffered by customer will be assessed in accordance with the applicable terms of this clause.
- EmobileScan shall accept liability for reasonably foreseeable losses arising as a direct consequence of a breach by EmobileScan of its statutory duty. However EmobileScan shall not be liable in certain circumstances for example where the causes or potential causes of the loss:
- were not reasonably foreseeable by both parties; &/or
- were known by customer to the exclusion of EmobileScan at the time that the agreement was entered into; &/or
- arose from the use of the product &/or services for purposes other than those contemplated in original agreement
- were reasonably foreseeable & preventable by customer such as those arising from, but not limited to:
- data or information loss caused by failing to keep back up copies of important data on separate media; or
- virus damage; or
- user inflicted problems such as those caused by failure to read &/or follow user instructions provided in writing or orally by a EmobileScan technician.
- In claiming against EmobileScan for any such losses customer is expected to have acted reasonably, for example, with regard to:
- how the losses were accrued - including steps taken to mitigate or to avoid losses occurring; &
- taking reasonable precautions to avoid loss (such as contacting EmobileScan promptly upon becoming aware of an issue).
- EmobileScan will not be liable for:
- use not consistent with “Point 12 Statutory Rights, Warranties, Repairs, Replacements & Provision of Services”
- loss resulting from any defect or deficiency in products or services which EmobileScan shall have remedied within a reasonable period &/or consistently with the terms of a service description
- consequential losses such as loss of business profits, salary, revenue, data or anticipated savings.
Intellectual Property & Software
- EmobileScan indemnifies customer from all costs & liabilities arising from any claim that use of hardware or software infringes any third party supplier. EmobileScan may recall & exchange or modify hardware or software or refund customer (minus depreciation in this event) or require customer to install replacement or altered software from a CD, DVD or an internet download.
- Customer must notify EmobileScan immediately of any infringing or unauthorised use of product or software in it.
- EmobileScan does not Indemnify customer for:
- third party hardware or software not supplied by EmobileScan;
- unauthorised modification or use of the products or software;
- any claim caused by the use of products or software in conjunction with anything not supplied by EmobileScan. Customer must comply with the license conditions for any Software supplied.
- customer indemnifies EmobileScan for any claim which arises due to customer's own actions of which EmobileScan had no knowledge or could not reasonably be expected to have had knowledge.
- EmobileScan is allowed to litigate, negotiate & settle claims & customer must provide reasonable assistance if requested to assist EmobileScan if litigation is directly related to products supplied to customer.
Customer is advised that product, which may include technology & software, is subject to EU export control laws & laws of the country where it is delivered or used. Under these laws, Product may not be sold, leased or transferred to restricted end-users or countries or for restricted end-uses. Customer agrees to abide by these laws.
Rochdale, UK OL12 6XB
Customer consents to the processing of customer's personal data in accordance with the above.
Each party must treat all information received from the other which appears to be confidential as it would treat its own confidential information generally, but at least, with no less than a reasonable degree of care.
- Either party may terminate this agreement if the other:
- commits a material or persistent breach of these Conditions; &
- fails to remedy such breach within 30 days of written notice being given to it by the other part requiring a remedy.
- EmobileScan may terminate this Agreement with immediate written notice if customer:
- fails, without good reason, to pay on time; or
- breaches or EmobileScan reasonably suspects customer has breached export control laws.
- Either party may terminate if the other becomes insolvent or bankrupt or is unable to pay debts as they fall due. This provision shall not relieve EmobileScan of an obligation to complete the delivery of any product that has been ordered and fully paid for by a customer prior to that customer becoming insolvent or bankrupt.
- The following clauses of these conditions shall survive any termination or expiration of these conditions & shall continue to bind the parties & their permitted successors & assigns: clauses
- "Price and Payment" - Point 2 and 3
- "Passing of Ownership & Risk"
- "Acceptance of Products on Delivery, 'Cooling Off' & rights of return and cancellation"
- "Statutory Rights, Warranties, Repairs, Replacements & Provision of Services" - Point 8
- "Statutory Rights, Warranties, Repairs, Replacements & Provision of Services" - Point 9
- "Intellectual Property & Software"
- "Export Control"
- "Data Protection"
- "Law & Jurisdiction"
Law & Jurisdiction
- This agreement is to be interpreted in accordance with English Law and is subject to the exclusive jurisdiction of the English Courts.
- If any part of these conditions is found to be unenforceable by a court, the rest are unaffected. All notices must be in writing & sent to a legal officer of each party, at the address provided on the invoice.
Assignment & Subcontracting
- EmobileScan may assign, subcontract or transfer its obligations or rights to a competent third party in whole or in part & provided that the assignment, subcontract or transfer occurs without negatively affecting:
- the provision of the products &/or services &
- rights or remedies of the customer under the agreement.
- EmobileScan requires customer to inform it in advance of any assignment, subcontract or transfer on the customer's part.
- EmobileScan may assign, subcontract or transfer its obligations or rights to a competent third party in whole or in part. Business users may do so only with EmobileScan's written consent.
Customer can find all EmobileScan policies, product and service offering details and notices at www.emobilescan.co.uk.
Customer shall keep EmobileScan fully indemnified against any claims, costs, demands, awards, compensation or other liability of any nature arising out of the termination of the employment rights (by way of redundancy or otherwise) or deemed transfer of any employment rights of any employees of the customer or otherwise resulting from the entering into or termination of any order, services or this agreement (in whole or in part) for whatsoever reason.