Poddely Terms and Conditions
Please note that these terms headed “Poddely Terms” are in relation to Poddely products within a Playforce order only. All and any other products ordered from Playforce Ltd will be subject to the terms headed “Playforce Terms” and can be found here.
Terms and Conditions of Supply of Poddely
Please note that the Terms below are in relation to Poddely products within a Playforce order only. All and any other products ordered from Playforce will be subject to the general Playforce Terms, which can be found at playforce.co.uk/terms-and-conditions/.
The customer’s attention is drawn in particular to the provisions of clause 8.
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday)
Component: any stand alone component forming part of the Product.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.7.
Contract: the contract between the us and you for the sale and purchase of the Products in accordance with these Conditions.
Force Majeure Event: has the meaning given in clause 11.1.
Order: your order for the Products, as set out in your purchase order form.
Products: the products, including the Components, set out in the Order.
we, us or our: Playforce Ltd, an operator of Poddely (registered in England and Wales with company number 03792761).
you or your: the person or firm who purchases the Products from the us.
2. HOW THE CONTRACT IS FORMED BETWEEN YOU AND US
2.1 These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by you to purchase the Products in accordance with these Conditions. You shall ensure that the terms of the Order and any relevant specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when we issue a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by us and any descriptions or illustrations contained in our catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract or any other contract between us for the sale of the Products.
3. AVAILABILITY AND DELIVERY
3.1 We shall ensure that each delivery of the Products is accompanied by a delivery note which shows the date of the Order, all relevant reference numbers, the type and quantity of the Products (including the code number of the Products, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Products remaining to be delivered.
3.2 Your order will be fulfilled by the delivery date set out in the Order or, if no delivery date is specified, then within 28 calendar days of the date of the written acceptance of the Order in clause 2.3, unless there are exceptional circumstances, you have requested your Poddely Delivery in conjunction with your Playforce installation, or we contact you to inform you that delivery of your order will be delayed.
3.3 We shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or because of your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
3.4 We shall deliver the Products to the location set out in the Order or such other location as the parties may agree (Delivery Location).
3.5 If the Products are not accepted for delivery by you or someone else at the Delivery Location, we will charge you for the costs to return the Products to our warehouse and to redeliver the Products to you. The minimum charge will equate to twice the original delivery cost and any additional charges to be notified to you.
4. TITLE, RISK AND INSPECTION
4.1 The Products will be at your risk from the time of delivery.
4.2 Title to the Products will only pass to you when we receive full payment of all sums due in respect of the Products, including delivery charges.
4.3 Until title to the Products has passed to you, you shall:
(a) hold the Products on a fiduciary basis as the our bailee;
(b) store the Products separately from all other products held by you so that they remain readily identifiable as our property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(d) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify us immediately if it becomes subject to any of the events listed in clause 7.2; and
(f) give us such information relating to the Products as we may require from time to time, but you may resell or use the Products in the ordinary course of its business.
4.4 If before title to the Products passes to you, you becomes subject to any of the events listed in clause 7.2, or we reasonably believes that any such event is about to happen and we notify you accordingly, then, provided that the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy we may have, we may at any time require you to deliver up the Products and, if you fail to do so promptly, enter any of your premises or of any third party where the Products are stored in order to recover them.
4.5 Without prejudice to our warranty set out at clause 8.1, you must notify us within 48 hours of delivery if the Products are defective or damaged or the delivery is short.
5. PRICE AND PAYMENT
5.1 The price of the Products shall be the price set out in the Order.
5.2 Prices are liable to change at any time, but changes will not affect Orders in respect of which we have already sent you a written confirmation in accordance with clause 2.3.
5.3 The price of the Products is exclusive of the costs and charges of delivery which shall be paid by you when you pay for the Products.
5.4 The price of the Products is exclusive of amounts in respect of value added tax (VAT). You shall, on receipt of a valid VAT invoice from us, pay such additional amounts in respect of VAT as are chargeable on the supply of the Products.
5.5 We may invoice you for the Products on or at any time after the completion of delivery.
5.6 You shall pay the invoice in full and in cleared funds within 14 calendar days of the date of the invoice. Payment shall be made to the bank account nominated in writing by us. Time of payment is of the essence.
5.7 If you fail to pay us by the due date for payment in accordance with a Contract (due date), then you shall pay interest on the overdue amount calculated in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. You shall pay the interest together with the overdue amount.
6. PRODUCT RETURNS AND CANCELLATION
6.1 Any Products returned to us must be returned in their original packaging and (unless the Products are defective) in original condition.
6.2 When you return a Product or a Component(s) to us because you have notified us in accordance with clause 12.8 that you do not agree to any change in these Conditions or in any of our policies, or because you claim that a Product or a Component is in breach of our product warranty at clause 8.1, you must first contact our Customer Care team. For the avoidance of doubt, if any Component(s) is in breach of our product warranty at clause 8.1, your entitlement is to return that or those Components, and not the entire Product. On receipt of the returned Product or Component(s) from you we will examine the returned Product or Component(s) and we will notify you whether we will repair or replace the Product or Component(s) if it is defective, or alternatively whether we will provide a refund. If we are to provide you with a refund, we will usually process the refund due to you as soon as possible and, in any case, within 30 days of the day we confirmed to you that you were entitled to a refund for the defective Product or Component(s). Product or Component(s) returned by you because of a defect will be refunded in full, including a refund of the delivery charges for sending the item to you and the cost incurred by you in returning the item to us. Product or Component(s) returned for any other reason will be subject to a minimum charge of twice the delivery rate appropriate for the Delivery Location and an administrative charge equal to 5% of the order value plus VAT, and such charges shall be confirmed to you by our Customer Care team. We will usually refund any money received from you using the same method originally used by you to pay for your purchase.
7. YOUR INSOLVENCY OR INCAPACITY
7.1 If you become subject to any of the events listed in clause 7.2, or we reasonably believe that you are about to become subject to any of them and notify you accordingly, then, without limiting any other right or remedy available to us, we may cancel or suspend all further deliveries under the Contract or under any other contract between you and us without incurring any liability to you, and all outstanding sums in respect of Products delivered to you shall become immediately due.
7.2 For the purposes of clause 7.1, the relevant events are:
(a) you suspend, or threaten to suspend, payment of your debts or are unable to pay your debts as they fall due or admit inability to pay your debts or (being a company) are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) you are deemed either unable to pay your debts or have no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has a partner to whom any of the foregoing apply; or
(b) you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or you make a proposal for or enter into any compromise or arrangement with your creditors; or
(c) (being an individual) your are the subject of a bankruptcy petition or order; or
(d) a creditor of yours attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 days; or
(e) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over you; or
(f) (being a company) a floating charge holder over your assets has become entitled to appoint or has appointed an administrative receiver; or
(g) a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets; or
(h) any event occurs, or proceeding are taken, with respect to you in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in clause 7.2(a) to clause 7.2(g) (inclusive); or
(i) you suspend, threaten to suspend, cease or threaten to cease to carry on all or substantially the whole of your business; or
(j) your financial position deteriorates to such an extent that in our opinion your capability adequately to fulfil your obligations under the Contract has been placed in jeopardy.
8. OUR LIABILITY
8.1 We warrant to you that any Product purchased from us through our Site is of satisfactory quality, and reasonably fit for purpose for which product of its kind are commonly supplied, and will be useable for a minimum period of 12 months from delivery, provided it is maintained in accordance with the maintenance guidelines (which can be found in your Poddely Ideas Book).
8.2 We shall not be liable for the Products’ failure to comply with the warranty set out in clause 11.1 if:
(a) the defect arises because you failed to follow our oral or written instructions as to the storage, commissioning, use and maintenance of the Products or (if there are none) good trade practice; or
(b) you alter or repair such Products without our written consent; or
(c) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
8.3 Our liability for losses you suffer as a result of us breaching the Contract is strictly limited to the purchase price of the Product you purchased.
8.4 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.
8.5 We are not responsible for indirect losses which happen as a side effect of the main loss or damage and which are not foreseeable by you and us, including but not limited to:
(a) loss of income or revenue
(b) loss of business
(c) loss of profits or contracts
(d) loss of anticipated savings
(e) loss of data, or
(f) waste of management or office time however arising and whether caused by tort (including negligence), breach of contract or otherwise;
provided that this clause 8.5 shall not prevent claims for loss of or damage to your tangible property that fall within the terms of clause 8.1 or clause 8.2 or any other claims for direct financial loss that are not excluded by any of categories (a) to (f) inclusive of this clause 8.5.
8.6 Except as set out in these conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.7 These Conditions shall apply to any repaired or replacement Products supplied by us.
All notices given by you to us must be sent to Playforce Limited, at email@example.com. We may give notice to you at either the e-mail or postal address you provide to us when placing an Order. 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.
10. TRANSFER OF RIGHTS AND OBLIGATIONS
10.1 The Contract between you and us is binding on you and us and on our respective successors and assigns.
10.2 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 consent.
10.3 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.
11. EVENTS OUTSIDE OUR CONTROL
11.1 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).
11.2 A Force Majeure Event includes any act, event, 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.
11.3 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.
12.1 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 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.
12.2 A waiver by us of any default shall not constitute a waiver of any subsequent default and no waiver by us of any of these Conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with clause 10 above.
12.3 If any of these 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.
12.4 These Conditions and any document expressly referred to in them constitute the whole agreement between us and supersede any previous arrangement, understanding or agreement between us, relating to the subject matter of any Contract.
12.5 We each acknowledge that, in entering into a Contract, (and the documents referred to in it), neither of us relies on any statement, representation, assurance or warranty (Representation) of any person (whether a party to that Contract or not) other than as expressly set out in these Conditions.
12.6 Each of us agrees that the only rights and remedies available to us arising out of or in connection with a Representation shall be for breach of contract as provided in these Conditions, save that nothing in this clause shall limit or exclude any liability for fraud.
12.7 We have the right to revise and amend Conditions at any time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system’s capabilities.
12.8 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 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 Conditions before we send you the written confirmation in accordance with clause 2.3 (in which case we have the right to assume that you have accepted the change to such Conditions, unless you notify us to the contrary within seven working days of receipt by you of the Products).
12.9 Contracts for the purchase of Products from us and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) will be governed by English law. Any dispute or claim arising out of or in connection with such Contracts or their formation (including non-contractual disputes or claims) shall be subject to the non-exclusive jurisdiction of the courts of England and Wales.
Terms updated March 2012