SOFTWARE SALES - TERMS AND CONDITIONS

 

SEPTEMBER 2014

These terms and conditions (together with our website Terms of Use) (together the Terms) give you information about Ability Engineering Limited (us) and the legal terms and conditions on which we operate www.eaworkplace.com (our site) and supply any software to you.

These Terms will apply to any contract between us for the supply of Software (Contract). Please read these Terms carefully and make sure that you understand them before ordering any Software from our site.  Please note that before placing an order you will be asked to agree to these Terms. If you refuse to accept these Terms, you will not be able to order any Software from our site.

These Terms relate to the supply of Software to consumers. These terms also apply to businesses except where indicated. Clause 16 only applies to businesses.

 

By using our site in any manner you agree to be bound by these Terms.

 

1.                    Information about us

1.1                Our site, www.eaworkplace.com is operated by Ability Engineering Limited. Our registered office is Ability Engineering Limited c/o Mainstream Accountancy Services, 527 Moseley Road, Birmingham, B12 9BU. Our main trading address is The Barn, Gwern y Bustach, Partrishow, Abergavenny, NP7 7LT, U.K..

1.2                Contact details:

(a)            If you wish to contact us for any reason, including because you have any complaints, you can contact us by telephoning +44 121 448 1916 or by e-mailing us at support@eaworkplace.com

(b)            If we have to contact you, we will do so by e-mail to the address you provide to us in your order.

 

Business customers should refer to clause 16.11 in relation to notice.

2.                   The software we supply

2.1                The software listed on our site for purchase is Sparx Systems Enterprise Architect related products (Software).

2.2                If you purchase any Software from our site, you will not receive a physical item or ownership of the Software. You will receive a licence key which is a non-exclusive, non-transferable licence to use the Software, plus access to download the Software.

2.3                We are not able to install the Software for you and by purchasing the Software you are not entitled to receive updates unless within your support subscription. You must install and use the Software for personal use (if you are a consumer) on one piece of computer equipment only and for the purpose it was created.

2.4                Our site will provide outline information in relation to the functionality of Software and any relevant compatibility requirements of which we can reasonably be expected to be aware. It is therefore your responsibility to ensure the facilities and functions of the Software meet your requirements.

3.                   Use of our site

Your use of our site is governed by our Terms of Use http://www.eaworkplace.com/legal-stuff/71-website-terms-of-use. Please take the time to read these, as they include important terms which apply to you.

4.                   How we use your personal information

We will only use your personal information in accordance with our Terms of Use http://www.eaworkplace.com/legal-stuff/71-website-terms-of-use

5.                   Age

5.1                You may only purchase Software from our site if you are at least 18 years old.

6.                   Our right to vary these Terms

6.1                We amend these Terms from time to time to take account for any changes in relevant laws or regulatory requirements or if our processes change.

6.2                Every time you order Software from us, the Terms in force at the time of your order will apply to the Contract between you and us.

7.                   How the contract is formed between you and us

7.1                Our site will guide you through the steps you need to take to place an order for Software. Our order process allows you to check and amend any errors before submitting your order to us. Please take the time to read and check your order and make sure it is complete and accurate at each page of the order process and before submitting it to us.

7.2                After you have placed an order (including making payment in accordance with clause 9), you will receive an e-mail from us acknowledging that we have received your order (Order Acknowledgement).  However, please note that this does not mean that your order has been accepted.  Our acceptance of your order will take place as described in clause 7.3

7.3                We will confirm our acceptance to you by sending you an e-mail acknowledging that your order has been placed (Order Confirmation).  A contract between us will only be formed when we send you an Order Confirmation.

7.4                If we are unable to supply you with the Software, for example because that Software is no longer available or because of an error in the price on our site as referred to in clause 8.4, we will inform you of this by e-mail and we will not process your order. If you have already paid for the Software, we will refund you the full amount charged as soon as possible.

8.                   Price of Software

8.1                The price of the Software will be as quoted on our site at the time you submit your order. We take all reasonable care to ensure that the price of the Software is correct at the time when the relevant information was entered onto our site. However, please see clause 8.4for what happens if we discover an error in the price of Software you ordered.

8.2                Prices for our Software may change from time to time, but changes will not affect any order you have already placed.

8.3                The price of Software listed on the website does not include VAT or any other applicable taxes. These are added automatically at checkout subject to your location and VAT status.

8.4                It is always possible that, despite our reasonable efforts, some of the Software on our site may be incorrectly priced. We will normally check prices as part of our dispatch procedures so that:

(a)            where the Software's correct price is less than the price stated on our site, we will charge the lower amount when dispatching the Software to you. However, if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mispricing, we do not have to provide the Software to you at the incorrect (lower) price; and

(b)            if the Software's correct price is higher than the price stated on our site, we will contact you as soon as possible to inform you of this error and we will give you the option of continuing to purchase the Software at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing.

9.                   How to pay

9.1                Payment for the Software must be made using Paypal or a debit or credit card via our online shop http://wwweaworkplace.com/shop.Thisis provided by SWReg and sales are subject to the SWReg terms and conditions https://www.swreg.org/terms_and_conditions.htm. Our site will automatically divert you to the relevant webpage.

Business customers should also refer to Clauses 16.4, 16.5 and 16.7.

10.                Delivery

10.1            We aim to deliver the Licence keys to you within 48 hours of the Order Confirmation being sent to you. Occasionally our delivery to you may be affected by an Event Outside Our Control. See clause 14for our responsibilities when this happens.

10.2            Delivery of an order shall be completed when we send the licence key to the e-mail address you gave us and provide access to download the Software. The licence key and software will be your responsibility from that time.

10.3            Once we have received payment in full, you will receive a licence key which is a non-exclusive licence to use the Software and an agreement to comply with the terms of the licence. You shall not give the licence key to anyone else and it is for your use only. You have no right (and shall not permit anyone else) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software. We reserve the right to monitor the use of the licence key. You acknowledge that you have no intellectual property rights in or to the Software other than the right to use it in accordance with these terms.

11.                Our liability if you are a consumer

11.1            If we fail to comply with these Terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breach of these Terms or our negligence.  Loss or damage is foreseeable if it is an obvious consequence of our breach or if it was contemplated by you and us at the time we entered into this contract. We are not responsible if it is not an obvious consequence of our breach of these Terms, or if it was not contemplated by you and us at the time we entered into the Contract.

11.2            We only supply the Software to you for domestic and private use. You agree not to use the Software for any commercial, business or re-sale purpose and we have no liability to you for any loss of profit, loss of business, business interruption, loss of corruption of data, information or software or loss of business opportunity.

11.3            We have no liability whatsoever for the functionality of the Software or its compatibility with other pieces of software you may use.

11.4            We do not in any way exclude or limit our liability for:

(a)            death or personal injury caused by our negligence;

(b)            fraud or fraudulent misrepresentation;

(c)            any breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);

(d)            any breach of the terms implied by section 13 of the Supply of Goods and Services Act 1982 (reasonable care and skill); and

(e)            defective Software under the Consumer Protection Act 1987.

Clause 11 does not apply to business customers, they should refer to Clauses 16.6, 16.7, 16.8, 16.9, and 16.10.

12.                Cancellation

12.1            By agreeing to these Terms you consent to the delivery of the licence key/Software purchased by e-mail before the expiry of the 14 day cancellation period as set out in the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (2013 Regulations). You acknowledge that the cancellation rights set out in the 2013 Regulations do not apply to the Contract.

Clause 12.1 does not apply to business customers

13.                Termination

13.1            We may at our sole and absolute discretion refuse to offer access, allow use of our site or process orders for any person or entity and may change our eligibility criteria at any time without notice to you. Upon termination for any reason all rights granted to you shall cease and you must immediately delete the Software from all computer equipment.

14.                Events outside our control

14.1            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 an Event Outside Our Control. An Event Outside Our Control is defined below in clause 14.2. 

14.2            An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.

14.3            If an Event Outside Our Control takes place that affects the performance of our obligations under a Contract:

(a)            we will contact you as soon as reasonably possible to notify you; and

(b)            our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control until it is over.

15.                Other important terms

15.1            We may transfer our rights and obligations under a Contract to another organisation, but this will not affect your rights or our obligations under these Terms. We will always notify you by posting on our site if this happens.

15.2            You may only transfer your rights or obligations under these Terms to another person if we agree in writing.

15.3            This Contract is between you and us. No other person shall have any rights to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

15.4            Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.

15.5            If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.

15.6            These Terms are governed by the law of England and Wales.  This means a Contract for the purchase of Software through our site and any dispute or claim arising out of or in connection with it will be governed by English law. We agree that the courts of England and Wales will have exclusive jurisdiction in relation to any such dispute.

15.7            These Terms and our Terms of Use constitute the entire agreement between you and us and they supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.

15.8            You acknowledge that in entering into this Contract you do not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms.

16.                Clause relating to business customers only

Clause 16 relates to users of our site who are businesses.

Authority to bind

16.1            You confirm that you have the authority to bind any business on whose behalf you use our site to purchase Software.

Use of Software

16.2            We only supply the Software for internal use by your business, and you agree not to use the Software for any other purpose. You acknowledge that it is your responsibility to ensure that the facilities and functions of the Software as described meet your requirements.

Purchase Orders

16.3            As a business customer, we may accept, in our absolute discretion, a purchase order (Purchase Order) subject to receipt of payment from you within 30 days of us issuing an invoice to you. In that case, time for payment shall be of the essence.  

16.4            Failure to pay the invoice within 30 days will result in interest accruing on the overdue amount at the rate of 4 % per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.

16.5            You shall ensure that the details provided within the Purchase Order are complete and accurate.

Liability

16.6            You agree that you shall not have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement on our site, or in these Terms.

16.7            Nothing in these Terms limit or exclude our liability for:

(a)            death or personal injury caused by our negligence;

(b)            fraud or fraudulent misrepresentation; or

(c)            breach of the terms implied by section 13 of the Supply of Goods and Services Act 1982 (reasonable care and skill).

16.8            Subject to clause 16.7, we will under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

(a)            any loss of profits, sales, business, or revenue;

(b)            loss or corruption of data, information or software;

(c)            loss of business opportunity;

(d)            loss of anticipated savings;

(e)            loss of goodwill; or

(f)             any indirect or consequential loss or damage.

16.9            Except as expressly stated in these Terms, we do not give any representation, warranties or undertakings in relation to the Software. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law.

16.10         We will not be liable for the accuracy of the information provided about the Software, its performance, functionality or compatibility or whether it is fit and/or suitable for your purposes.

Notice

16.11         If you wish to issue notice to us:

(a)            Any notice or other communication given by you to us, or by us to you, under or in connection with the Contract shall be in writing and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service or e-mail.

(b)            A notice or other communication shall be deemed to have been received: (i) delivered personally, when left at our registered office; (ii) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second business day after posting; or (iii) if sent by e-mail, one business day after transmission.

(c)            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.

(d)            The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.