Terms of Business
TERMS OF BUSINESS
1.1. In these Terms:
“Buyer”, “You” means the person, firm or company named in the Order or whose order for the Goods and/or Services is accepted by Arham Khan Consulting Ltd (“AKCL”);
“Buyer Material” means any documents, plans, drawings, specifications, details, picture or any other record of information in any form provided by the Buyer to AKCL in connection with the Goods and/or the Services
“Carrier” means a firm or company who have been instructed by AKCL to deliver the Goods in accordance with the Contract to the Buyer;
“Contract” means the contract for the sale and purchase of the Goods and/or Services;
“AKCL” means Arham Khan Consulting Limited (registered number 09740937) whose registered office is at 44 Ingestre Road, Birmingham, B28 9EG;
“Goods” means the goods (including any instalment of the goods or any parts for them) which AKCL is to supply in accordance with these Terms;
“IPR” include but are not limited to copyrights, patents, utility models, trademarks, service marks, design rights (whether registered or unregistered), database rights and proprietary information rights;
“Licence” means the licence to use the IPR granted pursuant to clause 5.2
“Order” means AKCL’s sale order to which these Terms are annexed;
“Services” means the services (or any part thereof) which AKCL is to supply in accordance with these Terms;
“Terms” means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Buyer and AKCL;
“Writing” and any similar expression, includes electronic mail, facsimile transmission and
comparable means of communication.
2. Basis of the sale
2.1. AKCL shall sell and the Buyer shall purchase the Goods and/or Services, as the case may be, in accordance with the Order, subject to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such order is made or purported to be made, by the Buyer. No terms or conditions endorsed upon, annexed to or enclosed with any enquiry, purchase order or other document of or submitted by the Buyer shall govern the Contract.
2.2. No variation or addition to any of the terms of a Contract and/or these Terms shall be binding unless agreed in Writing between the authorised representatives of the Buyer and AKCL. Unless otherwise agreed in writing such variations or additions shall only apply to the particular Contract concerned.
2.3. AKCL’s employees or agents are not authorised to make any representations concerning the Goods and/or Services unless confirmed by AKCL in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.4. Any advice or recommendation given by AKCL or its employees or agents to the Buyer or its employees or agents as to the application or use of the Goods and/or as to the Services which is not confirmed in Writing by AKCL is followed or acted upon entirely at the Buyer’s own risk, and accordingly AKCL shall not be liable for any such advice or recommendation which is not so confirmed.
2.5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of order, invoice or other document or information issued by AKCL shall be subject to correction without any liability on the part of AKCL.
2.6 From time to time AKCL may use third party suppliers.
3. Orders and Specifications
3.1. No offer or quotation submitted by AKCL shall bind AKCL and such offers or quotations shall serve only as invitations for the Buyer to place an order.
3.2. No order submitted by the Buyer shall be deemed to be accepted by AKCL unless and until confirmed in Writing by AKCL’s authorised representative.
3.3. The Buyer warrants:.
3.3.1. the accuracy and suitability of all Buyer Material instruction or advice submitted by
the Buyer or by any third party on behalf of the Buyer in relation to the Goods and/or Services at any time;
3.3.2 that it shall at its own expense give AKCL any necessary Buyer Material within a
sufficient time to enable AKCL to perform the Contract in accordance with its terms.
3.4. Shall indemnify AKCL against any loss, costs, damages, charges and expenses incurred by AKCL as a result of the inaccuracy of the Buyer Material, instructions or advice or failure to supply the same within a sufficient time to enable AKCL to perform the Contract in accordance with its terms.
3.5. The quantity, quality, performance criteria and/or any other description of the Goods and/or Services and any specification for them shall be set out in the Order. Unless otherwise agreed in Writing by AKCL all specifications and particulars of the Goods submitted by AKCL are approximate only and statements in relation to the same, samples, drawings, models, illustrations or other descriptive matter, whether contained in AKCL’s website, catalogues, price lists or otherwise shall be regarded as descriptions only and not binding as to detail.
3.6. If the Goods are to be designed, manufactured or any process is to be applied to the Goods by AKCL in accordance with a specification submitted by the Buyer, the Buyer shall indemnify AKCL against all loss, damages, costs and expenses awarded against or incurred by AKCL in connection with, or paid or agreed to be paid by AKCL in settlement of, any claim for infringement of any IPR of any other person which results from AKCL’s use of the Buyer’s specification or the Buyer Material.
3.7. AKCL reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied to AKCL’s specification, which do not materially affect their quality or performance.
3.8. No order which has been accepted by AKCL may be cancelled or varied in any way by the Buyer except with the agreement in Writing of AKCL and on terms that the Buyer shall indemnify AKCL in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by AKCL as a result of cancellation or variation.
4. Price of the goods
4.1. The price of the Goods and/or Services shall be as provided for in the Order but does not include the cost of delivery which (if applicable) will be charged in addition to the value of the Goods and/or Services at the rate specified in the Order. All prices quoted are valid for 30 days only, after which time they may be altered by AKCL without giving notice to the Buyer.
4.2. AKCL reserves the right, by giving Written notice to the Buyer at any time before delivery, to increase the price of the Goods and/or Services to reflect any increase in the cost to AKCL which is due to any factor beyond the control of AKCL including but without limitation:-
4.2.1. significant increase in the costs of labour, materials or other costs of design and/or
4.2.2. any change in delivery dates, designs, quantities or specifications for the Goods
and/or Services which is requested by the Buyer;
4.2.3. or any delay caused by any instructions of the Buyer or failure of the Buyer to give
AKCL adequate information or instructions;
4.2.4. unexpected or unforeseen complications arising;
4.2.5. the inaccuracy of any Buyer Material; or any other cause attributable to the Buyer.
4.3. Except as otherwise stated in the Order, and unless otherwise agreed in Writing between the Buyer and AKCL, AKCL agrees to deliver the Goods to a place specified in the Contract and the price quoted by AKCL
4.4. The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to AKCL at the prevailing rate from time to time.
4.5. In the event that an Order cannot reasonably be executed by AKCL due to any factor beyond the control of AKCL and/or circumstances unknown to AKCL, AKCL shall be entitled to alter the order in such manner as to enable the execution thereof and the Buyer shall be liable to AKCL for any additional costs or expenses incurred.
5. Licence and Intellectual Property Rights
5.1. The IPR in all designs, drawings, reports, specifications and all other documents prepared by AKCL in any way relating to the Goods and/or Services shall remain vested in AKCL.
5.2. In consideration of the payment by the Buyer of the price in accordance with the provisions of clause 6 below, AKCL grants the Buyer a perpetual non-exclusive and non-transferrable licence to use and reproduce the IPR in all designs, drawings, reports and other documents prepared by AKCL in any way relating to the Goods and/or Services for any purpose whatsoever excluding imagery. See 5.7.
5.3. Subject to the provisions of clause 5.2, the Contract shall not operate to grant or transfer to the Buyer any IPR in the Goods and/or Services.
5.4. The Buyer warrants that any Buyer Material and its use by AKCL for the purposes of providing the Goods and/or Services will not infringe the IPR or other rights of any third party and the Buyer shall indemnify AKCL against all losses, damages, legal fees, costs, expenses or other claims arising from any such infringement.
5.5. Subject to the provisions of clause 5.4, in the event of any claim or action against AKCL on grounds that the Goods and/or Services infringe the IPR of any person, firm or company AKCL may if necessary replace or modify the Goods concerned or cancel the Contract or part of the Contract without liability.
5.6 The Buyer shall promptly notify AKCL of any claim or action by a third party concerning
infringement of IPR in relation to the Goods and/or Services. In the event of such claim or action AKCL shall subject to the provisions of clause 5.4 be entitled to dispute such claim or defend such action, or to take legal action against that third party, or to agree an out of court settlement with that third party and shall be entitled to exercise such powers on behalf of the Buyers subject as may otherwise be agreed by AKCL in Writing, the Buyer shall refrain from taking any such action and in all cases the Buyer shall give AKCL its full cooperation.
5.7 Should AKCL supply a digital copy of its design, the Buyer is not permitted to use imagery supplied within the file for any other use whatsoever other than within the file it is supplied unless agreed in writing and paid for accordingly. This constitutes a change of use and will be charged to the Buyer accordingly. The Buyer agrees to be liable for this change of use. As an example, if a brochure, website or any other design is supplied digitally, the imagery contained within that digital file must not be extracted and used for any other purpose unless that image has been supplied to AKCL by the Buyer. It must remain integral to the design only.
Licence does not pass to the Buyer for any other use of any image unless permission is granted in writing and paid for in full.
5.8 All copyrights belong to AKCL until the Good and/or Services have been paid for in full. Any attempt to use material created by AKCL without full payment is an infringement of this copyright.
6. Terms of payment
6.1. New credit accounts are subject to a credit limit that will be confirmed in Writing by AKCL if and when a credit account is opened. The credit limit may be varied at AKCL’s discretion and Written notification of any change will be given except where these Terms have been breached or where the provisions of clause 6.4 apply.
6.2. Subject to any special terms agreed in Writing between the Buyer and AKCL, AKCL may invoice the Buyer for the price of the Goods and/or Services on an interim monthly basis or at any time after delivery of the Goods or performance of the Services.
6.3. The Buyer shall pay the price of the Goods and/or Services (without any reduction, deduction or setoff) in pounds sterling (GBP) 30 days following the date of AKCL’s invoice unless otherwise agreed in writing between AKCL and the Buyer. AKCL shall be entitled to recover the price, notwithstanding that delivery or performance may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract and the Buyer shall in no event be entitled to suspend any obligation of payment to AKCL. Receipts for payment will be issued only upon request.
6.4. If at any time AKCL should have reasonable cause to doubt the Customer’s credit worthiness, AKCL may, either before or during its performance of the Contract, require the Buyer to make payment in advance of the whole or part of the price of the Goods and/or Services or, at AKCL’s discretion, to provide reliable security to the value of such sum or sums as are owed or will become payable by AKCL under or by virtue of the Contract.
6.5. If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to AKCL, AKCL may: cancel the contract or suspend any further deliveries of Goods or performance of Services to the Buyer; and/or
6.5.1. appropriate any payment made by the Buyer to such of the Goods (or the goods
supplied under any other contract between the Buyer and AKCL) or Services or any sums payable in accordance with clauses 5.4.3 and/or 5.4.4 as AKCL may think fit (notwithstanding any purported appropriation by the Buyer); and/or
6.5.2. charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the standard rate (a part of a month being treated as a full month for the purpose of calculating interest); and/or
6.5.3. charge the Buyer for the reimbursement of all legal or debt collection costs incurred
by AKCL in and out of Court, such reimbursement to be on a full indemnity basis; and/or
6.5.4. to terminate the Licence.
6.6 All Hosting and Domain Services and Packages must be paid for in advance. You will be automatically charged the Price again before the anniversary date of the Hosting and Domain contract term unless you have cancelled the Hosting and Domain Services in accordance with AKCL cancellations procedure.
6.7 AKCL reserves the right to change the Prices and/or nature of its Hosting and Domain Services by giving You notice of those changes. You will be charged the new Price when the Service is automatically renewed at the end of the current term.
6.8 AKCL reserves the right to suspend Hosting and Domain Services until payment is received in full and all outstanding debt is cleared.. You are responsible for all money owed on the account from the time it was established until AKCL accepts Your cancellation request.
6.9 If You fail to pay all Prices due, AKCL reserves the right to interrupt, suspend or cancel the Website, Hosting and Domain Services to You without notice. Such interruption, suspension or cancellation does not relieve You from paying all Prices which are overdue and payable to AKCL.
7.1. The Buyer shall be responsible to AKCL for ensuring that there will be no obstacle on its part which would or may prevent any agreed delivery date or other deadline from being met.
7.2. Any dates quoted for delivery of the Goods or performance of the Services are approximate only and shall be subject to the Buyer and/or any relevant third parties acting on behalf of the Buyer performing all necessary acts and/or supplying all necessary Buyer Material and facilities in due time to enable the order to be executed and the Goods/Services delivered. AKCL shall not be liable for any delay in delivery of the Goods or performance of
the Services however caused and time for delivery shall not be of the essence of the Contract unless previously agreed by AKCL in Writing. The Goods may be delivered or the Services performed by AKCL in advance of the quoted delivery date on giving reasonable notice to the Buyer.
7.3. If AKCL fails to deliver the Goods or perform the Services (or any stage) for any reason other than any cause beyond AKCL’s reasonable control or the Buyer’s fault, and AKCL is accordingly liable to the Buyer, AKCL’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods or services to replace those not delivered or performed over the price of the Goods or Services.
8. Website, Domain & Hosting Services
8.1 All domain renewal and hosting services are provided for a 12 month term, unless otherwise stated. The contract will automatically renew on its anniversary date and continue for successive further 12 month periods, unless terminated in accordance with AKCL Terms & Conditions, Clause 8.3.
8.2 All domain renewal and hosting services require payment in advance The contract will automatically renew on its anniversary date and continue for successive further 12 month periods only if payment is made in advance of the anniversary date.
8.3 Please be aware that unless You terminate the Services in writing giving a minimum six week notice from the anniversary date the Services will automatically renew on the anniversary date of the contract for a successive contract term and You will be responsible for a further 12 months. You will be required to pay the full contract cost.
8.4 If you choose to terminate the Services any time after the six week notice period from anniversary date of the contract You will still be required to pay the Prices for the remaining period of the then current term of the contract along with the a further 12 month contract.
8.5 AKCL reserves the right to cancel and/or suspend Your Website, Hosting or Domain Service at any time without notice if You breach our Terms of Business and/or fail to make payment by the anniversary date.
8.6 You agree that any notice or communications required or permitted to be delivered under this Agreement by AKCL to You shall be deemed to have been given if delivered by e-mail, in accordance with the contact information You have provided to AKCL.
8.7 AKCL reserves the right to move your data to a different server without notice.
8.8 To provide optimal performance on the servers, it is necessary for AKCL to perform routine maintenance. Such maintenance often requires taking AKCL servers off-line, typically performed during off-peak hours. We may require suspension of some of AKCL Services for short scheduled periods to carry out maintenance or repair to AKCL Services. We will notify you of such activities wherever possible.
8.9 It is the mailbox owner’s responsibility to keep his/her password confidential, and to change the password on a regular basis. AKCL is not responsible for any data losses or security issues due to stolen passwords.
8.10 The Buyer is responsible for backing up their data. AKCL does not back up data/website and whilst every attempt would be made in the unlikely event of any corruption or hardware failure, AKCL does not guarantee to be able to replace lost data. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all Service interruptions.
8.11 AKCL makes no warranties or representations that any Service will be uninterrupted or error-free. You accept all Services provided hereunder “as is” without warranty of any kind.
9. Warranties and Liability
9.1. Subject to the following provisions AKCL warrants that the Services will correspond with their specification at the time of delivery and for a period of 12 months from delivery and that any Services will be performed with reasonable skill and care.
9.2. The above warranty is given by AKCL subject to the following conditions:
9.2.1. AKCL shall be under no liability for any loss, damage, costs, expenses or other
(a) in respect of any defect in the Goods and/or Services arising from any instructions, advice, Buyer Material or other information supplied by the Buyer or by any third party on behalf of the Buyer which is incomplete, inaccurate, illegible, out of date, out of sequence or in the wrong form, or arising from their non-arrival or any other fault of the Buyer;
(b) in respect of any defect arising from wilful damage, negligence, failure to follow AKCL’s instructions (whether oral or in Writing), misuse or alteration of the Goods without AKCL’s approval;
(c) under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods and/or Services has not been paid by the due date for payment;
(d) for any typographical or other inaccuracies in the Goods where the Buyer has been given an opportunity to proof read the Goods before they are delivered to the Buyer;
(e) for materials not manufactured by AKCL, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to AKCL.
9.3. The Buyer is solely responsible for satisfying himself as to the suitability of the Goods and/or Services for any particular purpose and the Buyer relies solely on his own skill and judgement and not the Seller’s skill and judgement in determining such suitability.
9.4. AKCL shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of AKCL’s obligations in relation to the Goods and/or Services, if the delay or failure was due to any cause beyond AKCL’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond AKCL’s reasonable control an Act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any
governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of AKCL or of a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery.
9.5. IN ANY EVENT, THE LIABILITY OF AKCL FOR ANY BREACH OR THE AGGREGATE
LIABILITY FOR ANY SERIES OF BREACHES UNDER OR IN CONNECTION WITH THE CONTRACT (SAVE IN RESPECT OF DEATH, PERSONAL INJURY OR FRAUDULENT MISREPRESENTATION) SHALL NOT EXCEED THE AMOUNT RECOVERED BY AKCL FROM ITS INSURERS IN CONNECTION WITH THE PARTICULAR BREACH CONCERNED.
9.6. Subject to these Terms all other warranties, conditions or terms whether made expressly or implied by common law as statute relating to use, quality and/or fitness for purpose are excluded.
9.7. AKCL will not be liable for any loss of business whatsoever incurred by the Buyer for any cancellation or suspension of the Website, Hosting and Domain services. AKCL shall not be liable to the Buyer for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of AKCL, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods and/or Services (including any delay in supplying or any failure to supply the Goods and/or Services in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of AKCL under or in connection with the Contract shall not exceed the price of the Goods and/or Services. AKCL will not be liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by You or for any wasted management time or failure to make anticipated savings or liability You incur to any third party arising in any way in connection with this Agreement or otherwise whether or not such loss has been discussed by the parties pre-contract or for any account for profit, costs or expenses arising from such damage or loss.
9.8. AKCL shall not be liable for any interruptions to the Website, Hosting and Domain Services or outages arising directly or indirectly from interruptions to the flow of data to or from the internet; changes, updates or repairs to the network or software which it uses as a platform to provide the Services; the effects of the failure or interruption of Services provided by third parties; factors outside of AKCL’s reasonable control; Your actions or omissions (including, without limitation, breach of Your obligations set out in the Agreement) or those of
any third parties; problems with Your equipment and/or third party equipment; interruptions to the Services requested by You.
10.1. AKCL shall be entitled to assign or sub-contract to any third party its rights and/or obligations (as the case may be) arising from any Contract. The Buyer may not assign its rights under the Contract except with the prior written consent of AKCL:
10.2. A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.3. No waiver by AKCL of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.4. If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
10.5. The Contracts (Rights of Third Parties) Act 1999 shall not apply in relation to the Contract. 10.6. The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the exclusive jurisdiction of the English courts.
10.6. AKCL reserves the right to use any part whatsoever of services produced by AKCL for AKCL promotional and marketing purposes. Any permission deemed necessary by the Buyer, from the Buyer is automatically granted the point of Order from the Buyer to AKCL for its Services. By Requesting goods or Services from AKCL the Buyer accepts and is bound by the AKCL Terms of Business.
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