Terms for the supply of goods and services by In-CarPC Limited
Your attention is drawn to Clause 11 of these terms which limits In-CarPC's liability to Customers and in some cases excludes it altogether
1 Contract formation
1.1 In-CarPC shall prepare a Quotation based on the Customer's selection of Goods and Services. Any Quotation is valid for a period of 30 days, provided that In-CarPC has not previously withdrawn it.
1.2 A Contract is made between In-CarPC and the Customer either when In-CarPC issues an Acknowledgement of Order to the Customer or (if earlier) when In-CarPC installs the Goods in the vehicle and provides the Services with the Customer's consent. The Contract will incorporate the Quotation as varied by any subsequent Acknowledgement of Order and these terms.
1.3 All samples, drawings, descriptive matter, specifications and advertising issued by In-CarPC are issued to give an approximate idea of the Goods and/or Services described, and they shall not form part of the Contract, and this is not a sale by sample.
2 Quality and description
2.1 The quantity, quality and description, and specification of the Goods and/or Services shall be those set out in the Quotation and Acknowledgement of Order (or as otherwise agreed in writing between In-CarPC and the Customer).
2.2 In-CarPC may make any changes to the specification of the Goods and/or Services which are reasonably required to conform with any applicable statutory requirements or which do not materially affect their quality, functionality or performance.
2.3 In-CarPC warrants to the Customer that upon installation, and for a period of 12 months thereafter (or longer if agreed in the Order of Specification), the Goods shall:
2.3.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
2.3.2 be reasonably fit for their purpose; and
2.3.3 be reasonably fit for any particular purpose for which the Goods are being bought if the Customer had made known that purpose to In-CarPC in writing and In-CarPC has confirmed in writing that it is reasonable for the Customer to rely on the skill and judgement of In-CarPC.
2.4 In-CarPC shall not be liable for a breach of any of the warranties in clause 2.3 unless:
2.4.1 the Customer gives written notice of the defect to In-CarPC; and
2.4.2 In-CarPC is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by In-CarPC) returns such Goods to In-CarPC's place of business at In-CarPC's cost for the examination to take place there;
2.5 In-CarPC shall not be liable for a breach of any of the warranties in clause 2.3 if:
2.5.1 the defect arises because the Customer failed to follow In-CarPC’s instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
2.5.2 the defect arose due to the Vehicle’s having been involved in a road traffic accident, or having been taken off-road, or having been vandalised, or the Goods having been damaged (whether intentionally or otherwise) by the Customer, by computer virus or other malicious software, by software or hardware not having been supplied by In-CarPC, by normal wear and tear, or due to any other cause beyond the control of In-CarPC; or
2.5.3 the Customer alters or repairs such Goods without the consent of In-CarPC.
2.6 Subject to clauses 2.4 and 2.5, if any of the Goods do not conform with any of the warranties in clause 2.3 In-CarPC shall repair or replace and reinstall such Goods as soon as is reasonably possible. This clause shall not in any way affect a Customer’s statutory rights.
2.7 If In-CarPC complies with clause 2.6 it shall have no further liability for a breach of any of the warranties in clause 2.3 in respect of such Goods.
2.8 All other warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law excluded from the Contract.
2.9 In-CarPC does not guarantee or warrant:
2.9.1 100% uninterrupted or error-free operation of the Goods; or
2.9.2 that the Goods will work with any future versions of the hardware or software that was supplied by In-CarPC; or
2.9.3 that the Goods will function properly if software or hardware that was not supplied by In-CarPC is used with the Goods.
2.10 In-CarPC warrants that it shall provide the Services using all reasonable care and skill, and as far as is reasonably possible, in accordance with any agreed specification, provided that In-CarPC shall not be liable for any loss, damage, costs, claims or other expenses arising out of or in connection with any breach by the Customer of its obligations under the Contract.
Business Customers only
2.11 In-CarPC makes no warranty (express or implied) about the quality, condition, fitness for purpose, merchantability or durability of the Goods, and all such warranties are excluded to the fullest extent permissible by law.
3 Time and place of installation
3.1 Unless otherwise agreed in writing by In-CarPC, installation of the Goods shall take place at the Customer’s home address. The Customer shall ensure that In-CarPC is granted access to the agreed place for installation at a mutually convenient time.
3.2 Any date for installation specified in the Acknowledgement of Order of the Goods is intended to be an estimate. If the estimated installation date cannot be met the Customer will be advised of a proposed new date for installation.
Right to terminate (Consumers only)
3.3 If the Customer is a Consumer, and he or she refuses the revised installation date and installation cannot be made within 30 days from the original estimated date, then the Customer may terminate the Contract without charge & obtain a full refund of any charges paid and In-CarPC shall have no further obligations to the Customer. Customers who are not Consumers shall have no such right.
4 Risk/title in Goods
4.1 Once In-CarPC has installed the Goods, risk in the Goods shall pass to the Customer.
4.2 Title to the Goods shall not pass to the Customer until In-CarPC has received in full all sums due from the Customer under the Contract or otherwise. In-CarPC shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from In-CarPC.
4.3 The Customer may resell the Goods provided that any such sale shall be a sale of In-CarPC’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.
4.4 If the Customer has not paid any sums outstanding to In-CarPC in full, the Customer’s right to possession of the Goods shall terminate immediately if the Customer becomes insolvent or bankrupt.
4.5 On termination of the Contract, howsoever caused, In-CarPC’s (but not the Customer’s) rights contained in this clause 4 shall remain in effect.
5 Cancellation rights
5.1 The rights contained in this clause 5 shall apply to Consumers only.
5.2 If this Contract is made exclusively by a method of distance selling (such as by internet or telephone or correspondence) then the Customer may cancel the order for the Goods up until 7 days (not including weekends or public holidays) after the Goods have been installed.
5.3 By engaging In-CarPC to provide the Services before the expiry of the Cancellation Right, the Customer agrees that he or she waives its rights to cancel the Services. If the Customer exercises the Cancellation Right he or she will still be liable for In-CarPC’s costs incurred in delivery, installation and uninstallation of the Goods.
5.4 If the Customer exercises the Cancellation Right, and the Goods have already been installed, the Customer must make available the Vehicle at In-CarPC’s premises and allow In-CarPC a reasonable amount of time to remove the Goods from the Vehicle. The Customer must take reasonable care to ensure that the Goods are not damaged whilst in the Customer’s possession.
5.5 If the Customer exercises the Cancellation Right, In-CarPC will refund the price paid, less the cost of:
5.5.1 the Services provided (including the charge made in respect of the installation);
5.5.2 any software pursuant to clause 6.1; and
5.5.3 any direct costs incurred in In-CarPC’s recovering the goods as a result of the Customer’s breach of clause 5.4, including time spent at In-CarPC’s usual rates.
6 Software
6.1 The Customer instructs In-CarPC to unwrap or install the software and to act as the Customer’s agent in accepting software licences on the customer’s behalf. As a result the Customer shall have no right to return any software installed on the Goods and the Customer shall not be reimbursed for any such software. This clause shall not apply to any defective Goods or software.
7 After-sales Service
In-CarPC will provide the Services set out in the Acknowledgement of Order during working hours on working days, with all reasonable skill and care. These Services shall only be provided:
7.1 at the original place of installation (or locations no more than 5 miles further away from In-CarPC’s place of business in Unit 6, Birchills Trading Estate, Bristol than the original place of installation); and
7.2 while the Goods use the operating system and hardware that were originally supplied by In-CarPC.
7.3 if In-CarPC is satisfied that the Vehicle and the Customer’s premises (if relevant) are safe working environments for In-CarPC’s staff.
8 Price
8.1 The price for the Goods shall be exclusive of any VAT, which the Customer shall pay at the same time that it pays for the Goods.
8.2 In-CarPC may, by giving notice to the Customer at any time before or during installation, increase any prices for Goods and/or Services to reflect any increase in the cost to In-CarPC which is due to:
8.2.1 change in installation, quantities or specifications for the Goods and/or Services which the Customer requests, or failure by the Customer to give In-CarPC adequate information or instructions; or
8.2.2 any unforeseen special parts required to meet the Customer’s specific requirements (including any parts necessary to install the Goods in the Vehicle); or
8.2.3 any factor beyond In-CarPC’s control (including without limitation, foreign exchange fluctuation, currency regulation, alteration of duties, increases in the costs of labour, materials or other costs of manufacture).
9 Payment
9.1 Subject to clause 9.3, payment for the Goods and/or Services is due as follows:
9.1.1 50% of the quoted price on signature of the Acknowledgement of Order by the Customer; and
9.1.2 the balance of the price on completion of installation.
9.2 No payment shall be deemed to have been received until In-CarPC has received cleared funds.
9.3 All payments payable to In-CarPC under the Contract shall become due immediately on its termination.
9.4 The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
9.5 If a Customer does not to pay any sum outstanding, In-CarPC may charge interest on the balance at the rate specified in the Late Payment of Commercial Debts (Interest) Act 1998 (although if the Customer is a Consumer, In-CarPC may only charge interest at the annual rate of 3% per annum above the base rate of the Bank of England).
9.6 While the Vehicle is in In-CarPC’s control, In-CarPC, shall have a lien over the Vehicle for any money due from the Customer to In-CarPC (but this clause shall confer no power of sale).
10 Licenses
10.1 All intellectual property in the Goods and/or Services is vested in In-CarPC or third party licensors and no rights in such intellectual property are granted to the Customer except as set out in clause 10.2.
10.2 The Customer acknowledges that the end user licences relating to the software installed on the Goods are standard and non-negotiable and authorises In-CarPC to accept them on his behalf.
11 Limitation of liability
11.1 Subject to clause 2, the following provisions set out the entire financial liability of In-CarPC (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of (a) any breach of these terms; (b) any use made by the Customer of the Goods or Services; and (c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 In-CarPC accepts all liability for:
11.2.1 death or personal injury caused by In-CarPC’s negligence; and
11.2.2 for defective products under section 2(3), Consumer Protection Act 1987; and
11.2.3 for fraud or fraudulent misrepresentation; and
11.2.4 for any other matter which it would be illegal for In-CarPC to exclude or attempt to exclude its liability.
11.3 Subject to clauses 2.8 and 11.2:
11.3.1 In-CarPC’s total liability to the Customer in contract, tort (including negligence or breach of statutory duty) or for misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price.
11.3.2 the Customer and In-CarPC shall only be liable under this contract for losses which are a reasonably foreseeable consequence of the relevant breach of contract.
11.3.3 In-CarPC shall have no liability for any loss of or damage to data suffered by the Customer.
11.3.4 The Customer is strongly advised to familiarise himself or herself with the functionality and use of the installed Goods, and to ensure that any future owners do likewise. In-CarPC shall have no liability for any loss, damage, death or personal injury that occurs as a result of a driver using the Goods in the Vehicle, nor for the Customer’s failure, or the failure of any users of the Vehicle (including any future owners), to use the Goods in accordance with the manual provided, and the safety instructions specified therein.
11.3.5 The Customer agrees that Flux Media LLC accepts no liability for the Customer’s use of any products provided by Flux Media LLC and used on the Goods, whether such loss is direct, indirect or consequential.
12 Assignment
12.1 In-CarPC may assign the Contract or any part of it to any person, firm or company. The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of In-CarPC.
13 Circumstances beyond the parties' control (force majeure)
In-CarPC reserves the right to defer the date of installation or to cancel the Contract (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of In-CarPC, provided that if the circumstances in question continue in excess of 30 days, and the Customer is a Consumer, the Customer shall be entitled to give written notice to terminate the Contract.
14 General
14.1 Each right or remedy of In-CarPC under the Contract is without prejudice to all other rights or remedies of In-CarPC whether under the Contract or otherwise.
14.2 If any provision of the Contract is found by any court or similar body of competent jurisdiction to be illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect, unless to do so would fundamentally frustrate the original intentions of the parties, in which case it shall terminate forthwith.
14.3 Failure or delay by In-CarPC in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights. Any waiver by In-CarPC of any breach of, or any default under, any provision of the Contract shall not be deemed a waiver of any subsequent breach or default.
14.4 No term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.5 The Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
15 Communications
15.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or e-mail:
15.1.1 (in case of communications to In-CarPC) to its registered office or such changed address as shall be notified to the Customer by In-CarPC; or
15.1.2 (in the case of the communications to the Customer) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to In-CarPC by the Customer.
15.2 Communications shall be deemed to have been received:
15.2.1 if sent by pre-paid first class post, two working days after posting (exclusive of the day of posting); and
15.2.2 if delivered by hand, on the day of delivery; and
15.2.3 if sent by e-mail on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
16 Interpretation
16.1 The following terms shall have the following meanings in these forms.
Acknowledgement of Order: In-CarPC’s written confirmation that it accepts the terms of the Customer’s offer in the Quotation, in which the specification of the Goods and/or Services and a date for delivery are set out. “Order Acceptance” and “Acknowledgement of Order” shall have the same meaning.
Cancellation Right: a Consumer’s rights to cancel under clause 5 and clause 5.2.
Customer: the person, firm or company who purchases the Goods from In-CarPC.
Contract: any contract between In-CarPC and the Customer for the supply of the Goods and/or Services, incorporating these terms.
Consumer: the Customer is a Consumer if he or she is an individual and will use the Goods exclusively for his or her own private use.
Goods: any goods agreed in the Contract (and specified in the Acknowledgement of Order) to be supplied to the Customer by In-CarPC (including any part or parts of them).
In-CarPC: In-CarPC Limited registered at An Kernyk, Rock, Wadebridge, Cornwall, PL27 6NE (which address is NOT In-CarPC’s place of business) with company number 05909468.
Quotation: a quotation of In-CarPC for the supply of Goods and/or Services
Services: the installation and maintenance services to be supplied by In-CarPC in accordance with these terms and specified in the Quotation
Vehicle: the vehicle in which the Goods are installed pursuant to these terms.
