NetPaySys, and Product Owner (“Wholesaler”) agree:
WHEREAS (1) the Wholesaler is in the business of selling certain products and services (together with related access codes) the ("Product"); (2) the Wholesaler wishes to retain NetPaySys to resell the Product pursuant to the terms hereof; and (3) NetPaySys wishes to resell the Product pursuant to the terms hereof.
NOW, THEREFORE this Agreement witnesseth that in consideration of the mutual covenants by each of the parties hereto, the parties agree as follows:
1.1 Definitions. For the purposes of this Agreement, the following terms shall have the following meanings:
2. OBLIGATIONS OF NetPaySys
2.1 Offer the Product for Resale. Pursuant to the terms hereof, NetPaySys shall offer for resale the Product to Customers (the "Offer"). NetPaySys shall accept payment from Customers via Credit Card, Debit Card, or other means, as it may, at its sole discretion accept from time to time. NetPaySys reserves the right to modify the means by which it accepts payment from Customers at its sole discretion and without prior notice.
2.2 Purchase Price. As and when requested by NetPaySys, the Wholesaler shall sell the Product to NetPaySys at those prices set out in the Application Form (the "Purchase Price"). Wholesaler can adjust the Purchase Price at its discretion through the Site.
2.3 Resale Price of the Product. NetPaySys shall sell the Product at the prices set out in Application Form (the "Resale Price") provided that the Resale Price shall never be less than thirty percent (30%) more than the Purchase Price. Wholesaler may, at its discretion, sell the Product on CD and/or charge fees for extended download privileges; fees charged for each such feature relating to the Product shall be shared as per the terms of the Fee Schedule.
2.4 Purchase of the Product. Wholesaler shall sell and supply such quantities of Product to NetPaySys as NetPaySys requests and in the manner and delay specified by NetPaySys. NetPaySys shall inform the Wholesaler of its intention to Purchase Product via an electronic or other manner of protocol that shall be established by NetPaySys and amended from time to time by NetPaySys, at its sole discretion (the "Order Protocol"). The Wholesaler shall install and maintain, at its own expense, such equipment as is reasonably necessary to operate the Order Protocol. NetPaySys shall not be liable to Wholesaler for any loss or destruction of any Product uploaded to the systems of NetPaySys or otherwise in the possession of NetPaySys. Without limitation, to the extent that the Product includes executable software programs, Wholesaler shall upload such programs to the Wholesaler systems through the Site. Wholesaler shall also upload to the NetPaySys system or supply to NetPaySys all necessary access codes in order to facilitate in the resale thereof by NetPaySys.
2.5 Payments to Wholesaler. NetPaySys shall make payments (each a "Payment") of the Purchase Price amounts to the Wholesaler on regular intervals mutually agreed between the Parties. The method of payment of the Payments shall be ACH, EFT, wire transfer, cheque or as may be otherwise implemented by NetPaySys. Upon a termination hereof where Wholesaler is in default, NetPaySys may withhold any Payments not yet made in order to offset its actual or potential liabilities.
2.6 Record of Product Resold. NetPaySys shall maintain a record of the number of Products resold by NetPaySys to Customers. Such records shall be the definitive evidence of all sales of Products made to Customers and shall be the basis on which all Payments hereunder are made. NetPaySys shall make such information available to the Wholesaler via the Site.
2.7 Transactions. NetPaySys shall resell the Product to its Customers directly, or through agents, via the internet, telephone sales or any other means of its choosing.
2.8 Chargebacks. In the event of a Chargeback in relation to the purchase by a Customer of any Product, NetPaySys shall, for each such Chargeback, deduct a fee set out in the Fee Schedule.
2.9 Refunds. If a Customer returns a Product to NetPaySys for a refund of the Purchase Price (the "Refund"), NetPaySys shall, at its sole and absolute discretion, repurchase from a Customer any Product so returned and refund the Resale Price to such Customer. Either party may initiate a Refund of any Transaction. Wholesaler shall reimburse NetPaySys for any amounts it has received in respect of any Transaction that has been Refunded together with any fees applicable thereto as described in the Fee Schedule.
2.10 Customer Service. As part of the Services, NetPaySys shall provide support in respect of payment for Transactions only. Any and all Customer queries concerning Product shall be referred to the Wholesaler who shall address such queries in a prompt and professional manner.
2.11 NetPaySys License. As part of the Services, for the term hereof only, NetPaySys grants to Wholesaler a limited, non-transferrable, license to use the Site and Software solely for the purpose of using the Services. Nothing in this agreement shall permit the Wholesaler to have any rights in the source code of the Software or to copy, decompile, alter or otherwise modify or transfer any rights in the Software or any other part of the Services. As part of such license NetPaySys shall supply the Wholesaler with a login and password. Wholesaler shall assume any and all liability for any use of such login and password, whether or not such activity was authorized by the Wholesaler.
3. OBLIGATIONS OF THE WHOLESALER
3.1 Sale of Product. The quantity of Products purchased by NetPaySys hereunder shall be established by NetPaySys, at its sole discretion. NetPaySys is under no obligation to purchase any specific quantity of the Product.
3.2 Wholesaler License. Wholesaler grants to NetPaySys a limited, transferrable, license to use, resell and sublicense the Product pursuant to the terms hereof. Nothing in this agreement shall permit the Wholesaler to have any rights in the source code of the Product or to decompile, alter or otherwise modify the Product or any other thereof.
3.3 Intellectual Property in Product. Wholesaler represents and warrants that the Product shall perform as described in any documentation relating thereto and shall be free from defects. If a breach of the foregoing occurs, Wholesaler shall replace, repair, and/or modify such Product without charge to NetPaySys and without delay. Wholesaler shall test programming materials for viruses, time bombs, back doors and other disabling or harmful devices ("Unauthorized Code") and remove any Unauthorized Code before use by Wholesaler, NetPaySys, or any Customer. Wholesaler represents and warrants to NetPaySys that no portion of the Product is subject to the intellectual property rights of any third party, including but not limited to, copyrights, patent rights, trademark rights, trade secret rights, or rights as confidential information.
3.4 Compliance. Throughout the term hereof, Wholesaler and its affiliates shall themselves and shall ensure that: (a) the Product, and all related products or services, do not contain any content that is unlawful, threatening, defamatory, obscene or otherwise objectionable; (b) the Product does not consist of, promote or relate to (A) sexually explicit materials, violence, discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation or age, (B) illegal activities or (C) infringement on intellectual property rights.
3.5 SPAM Prohibited. The Wholesaler may also promote the Product in any manner it deems fit provided that such promotion does not violate any applicable laws and does not consist of use of bulk e-mails, fax blasting or any illegal or distasteful business practices.
3.6 Maintenance and Service. Wholesaler shall be responsible for any and all support and maintenance related to the Product all of which it shall supply to Customers on reasonable terms.
3.7 Background Check. Wholesaler authorises NetPaySys and its representatives to obtain from third parties financial, credit information and personal background relating to Wholesaler, its shareholders, directors and officers to assist NetPaySys's determination of whether to accept this Agreement and NetPaySys's continuing evaluation of the financial and credit status of the Wholesaler. Upon request, Wholesaler shall provide to NetPaySys or its representatives reasonable access to Wholesaler's facilities and records for the purpose of performing any inspection and/or copying of Wholesaler's books and/or records deemed appropriate by NetPaySys in order to verify compliance with the terms hereof.
4. AFFILIATE PROGRAM
4.1 Affiliate Program- Wholesaler may elect to participate in our Affiliate Program. In the Affiliate Program, other members of the NetPaySys community may elect to promote Wholesaler's Software by driving traffic to Wholesaler's web site, and NetPaySys will track the sources of traffic to Wholesaler's site. When an End User makes a purchase upon being driven to Wholesaler's site by an Affiliate, that Affiliate is eligible for an Affiliate Commission, which Wholesaler agrees NetPaySys may deduct and pay from the sales price of the product. Any Affiliate commissions that result from a particular sale will also be deducted from Wholesaler's account and paid over to whichever Affiliate NetPaySys's systems indicates referred the sale to NetPaySys. Wholesaler may set the Affiliate commission on a per product, per account and on a per Affiliate basis.
All affiliates within the Affiliate Network shall remain NetPaySys's sole property, and shall not belong to Wholesaler. In order to enter the network, each affiliate has entered into a contractual relationship with NetPaySys. Any affiliate recruited by Wholesaler into NetPaySys's Affiliate Network through Wholesaler's own efforts or through the use of the affiliate recruiting tool NetPaySys provides to Wholesaler, or through any other service or other resource NetPaySys provides to Wholesaler shall remain NetPaySys's sole property. Wholesaler shall not bypass or circumvent the network with respect to any engagement with a Network Affiliate. The Affiliate Network may make available to Wholesaler tools and resources for the explicit purpose of communicating with affiliates. Wholesaler agrees not to use these tools in a manner that may result in, among other things, avoiding Wholesaler's obligation to pay for services and/or fees associated with the Network, including avoiding paying any Affiliate Commissions, Discount or other cost of sale to NetPaySys, or the recruitment of affiliates to another affiliate or affiliate-related network.
5. FEES AND RESERVE ACCOUNT
5.1 Fees. Fees payable to NetPaySys, as per Schedule A and any other amounts owing from Wholesaler to NetPaySys, shall be deducted from Payments. In the event that the Payments are insufficient to pay amounts owing by the Wholesaler to NetPaySys hereunder, Wholesaler shall pay the balance thereof within three (3) Business Days following demand by NetPaySys. Fees proposed herein are temporary and pendent to a full review of your account and do not supersede any other fee arrangements that may be in place at the moment of creating your account.
5.2 Reserve Account. NetPaySys shall hereby deduct from the Payments and establish a reserve account (the "Reserve Account") to ensure NetPaySys's recovery of any liabilities owed to it or reasonably anticipated to be owed to it by the Wholesaler pursuant to this Agreement including, without limitation, all liabilities in respect of actual and/or potential post-termination Chargeback, post-termination fees, and charges, indemnifications and expenses due or anticipated to be due to NetPaySys from the Wholesaler. The Reserve Account shall be funded and maintained by NetPaySys's withholding from the Payments. The amount of the Reserve Account shall be no less than the fixed percentage of total monthly value of sales by NetPaySys to Customers set out in the Fee Schedule. NetPaySys may also, at its sole discretion, and without notice to the Wholesaler, reasonably amend the amount required in the Reserve Account in order to mitigate against potential losses to NetPaySys as a consequence of its performance hereudner. NetPaySys shall retain possession of the amounts in the Reserve Account for the term hereof and six (6) months thereafter and such additional time as may be necessary in order to mitigate against potential liabilities of NetPaySys hereunder.
5.3 Security for the Wholesaler's Obligations. As continuing and collateral security for the due and punctual payment of any and all amounts now owing or which may hereafter become owing to NetPaySys by the Wholesaler under this Agreement (the "Wholesaler Obligations"), as same may be amended, renewed, extended or supplemented, the Wholesaler hereby charges, mortgages and hypothecates in favour of NetPaySys, with effect as of and from this date, all right, title and interest of the Wholesaler in and to the Payments and Reserve Account and all funds therein. The Wholesaler further undertakes, upon notice by NetPaySys at the Wholesaler's expense, to execute and register such documents as may be necessary or desirable to perfect NetPaySys's security interest and hypothec therein.
5.4 Liability for Taxes. NetPaySys maintains the right to withhold from any Payment the amount of sales, value added or other taxes that NetPaySys is liable to remit as the reseller of Product to Customers. Wholesaler shall, without limitation, indemnify and hold NetPaySys harmless for any and all sales taxes or other taxes or levies for which NetPaySys may be liable as a consequence of performing the Services.
6. INDEMNIFICATION AND LIMITATION OF LIABILITY
6.1 Indemnification. Wholesaler shall defend, indemnify and hold harmless the NetPaySys, its directors, officers, employees, agents, assigns, and successors-in-interest from and against any and all third-party liability, damages, losses, claims, demands, actions, causes of action and costs (including attorneys' fees and expenses) arising out of or resulting from (i) Wholesaler's performance under this Agreement including, without limitation, performance, nonperformance, or defect in performance, any statement, misstatement, representation or misrepresentation made by Wholesaler; (ii) the negligent or willful acts or omissions of Wholesaler or Wholesaler's agents and/or employees; (iii) any statements, claims, representations or warranties made by Wholesaler or Wholesaler's agents and/or employees, relating to the Products and (iv) infringement or claim thereof of any patent, copyright, trademark, service mark, trade name, trade secret, proprietary and/or confidential information right, and/or any other property right of a third party arising from the use of the Product by Wholesaler, NetPaySys or Customers.
6.2 No Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NetPaySys EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE SERVICES PROVIDED BY NetPaySys OR ITS AFFILIATES HEREUNDER OR THAT THE OPERATION OF THE SERVICES WILL BE INTERRUPTION OR ERROR FREE.
6.3 Limitations of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NetPaySys, ITS AFFILIATES, AGENTS AND LICENSORS, SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE WHOLESALER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF NetPaySys HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURING. EXCEPT AS REQUIRED BY LAW, IN NO EVENT SHALL NetPaySys'S LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO THE WHOLESALER IN ANY WAY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT EXCEED THE FEES ACTUALLY RECEIVED BY THE WHOLESALER FOR THE PRODUCT ACTUALLY RESOLD DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. WITHOUT LIMITING THE FOREGOING, THE WHOLESALER AND NetPaySys AGREE THAT IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
6.4 Force Majeure. NetPaySys shall use its commercially reasonable efforts to perform its obligations hereunder, however, NetPaySys, its affiliates, agents or licensors shall not be liable for any loss resulting from the activities of the Wholesaler, nor from any erroneous statements or errors in transmission, nor for any loss resulting from any delay, interruption or failure to perform hereunder due to any circumstances beyond NetPaySys's reasonable control including, without limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, sabotage, accident, embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment. NetPaySys's obligations hereunder shall be suspended during any of the foregoing circumstances, which suspension shall not be a cause for termination of this agreement by the Wholesaler.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall be effective commencing on the date that Wholesaler has accepted the terms of this Agreement via the Site or in writing (the "Effective Date") and ending one (1) year thereafter (the "Initial Term"). After the Initial Term, this Agreement shall be renewed automatically for additional consecutive one (1) year periods, unless earlier terminated in accordance with the terms hereof.
7.2 Termination At Will. Either party may terminate this Agreement at any time on notice to the other party.
7.3 Procedure upon Termination. Upon any termination of this Agreement, NetPaySys shall discontinue selling the Products and the licenses to Software, the Site and the Product granted hereunder shall immediately terminate. All provisions regarding indemnification, representations, warranties, liability and limits thereon and confidential information shall survive termination and termination of this Agreement shall not relieve the Wholesaler of its obligations to pay accrued Fees or other liabilities to Wholesaler hereunder.
8.1 Confidential Information. The Wholesaler agrees that it will: (i) not use for purposes other than this Agreement; (ii) not disclose to any third party; and (iii) retain in strictest confidence; all Confidential Information except in the performance of its obligations under this Agreement. The Wholesaler will use reasonable safety precautions so that Confidential Information cannot be accessed from or through its systems. The Wholesaler will require its employees and all other persons who have access to the Confidential Information to be bound by similar obligations. Termination of this Agreement shall not release the Wholesaler from its obligations of confidentiality.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS
9.1 Representations and Warranties. It is agreed between the Parties that performance by NetPaySys hereunder, whether the representations, warranties and covenants of the Wholesaler are fulfilled or not, shall in no manner whatsoever waive the benefit, to NetPaySys, of any such representations, warranties and covenants of the Wholesaler. The Wholesaler hereby warrants and covenants to NetPaySys that:
10.1 Notices. Any notice, demand, request or other communication required or permitted to be given under this Agreement shall be in writing and delivered personally, or sent by prepaid registered mail, return receipt requested (i) to NetPaySys at the postal address provided therefor on the cover-page hereof; to the Wholesaler at the address provided therefor on the cover-page hereof; or to such other address as either party may have previously indicated to the other in writing in accordance with the foregoing. Any such notice, request, demand or communication shall be deemed to have been received on the day it was delivered personally, on the fifth (5th) day following mailing, unless there is a disruption of any kind of postal service.
10.2 Currency. Unless otherwise specified, all dollar amounts referred to herein shall be in United States Dollars.
10.3 Number and Gender. The context requires otherwise, words employing the singular include the plural and vice versa and words employing the gender include all genders.
10.4 Amendments. NetPaySys may amend or change the Services they provide, at any time, and those changes will be effective for any transactions that take place after the date of the change.
10.5 Assignment and Successors. Wholesaler or any of its respective successors may not assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of NetPaySys which consent may be withheld for any reason, at NetPaySys's sole discretion. NetPaySys or any of its respective successors may assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of Wholesaler. This Agreement and the provisions hereof shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
10.6 Enforcement. The Wholesaler shall be liable for and shall indemnify and reimburse NetPaySys for any and all reasonable attorneys' fees and other costs and expenses paid or incurred by NetPaySys in the enforcement of this Agreement, or in collecting any amounts due from the Wholesaler hereunder, or resulting from any breach of any of the terms or conditions of this Agreement.
10.7 Remedies. All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.
10.8 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.
10.9 Governing Law and Choice of Forum. This Agreement shall be deemed to be governed and enforced in accordance with the laws of the country of Malta whose courts shall have exclusive jurisdiction over disputes arising hereunder.
10.10 Whole Agreement. References to "this Agreement" include any schedules, supplementary agreements, addendum, appendixes and amendments and any other agreements, schedules appendixes and amendments promulgated by NetPaySys and furnished to the Wholesaler from time to time.
10.11 Guarantee. For good and valuable consideration, receipt of which is hereby acknowledged, the Guarantor hereby fully, irrevocably and unconditionally guarantees to NetPaySys the full and complete performance by the Wholesaler of all the Wholesaler's obligations, present and future, to NetPaySys (the "Guarantee") under or pursuant to this Agreement.
10.12 Solidarity Liability. The liability of the Guarantor under the Guarantee shall be solidary (i.e. joint and several) with the Wholesaler, the Guarantor expressly waiving all benefits of division and discussion. NetPaySys does not need to exhaust its recourses against the Wholesaler or any other Person before being entitled to full payment from the Guarantor under the Guarantee.
10.13 Counterparts and On-Line Agreement. By acceptance of the terms hereof on-line by the Wholesaler or by execution of a written acceptance of the terms hereof by the Wholesaler, in counterparts or otherwise, this Agreement together with its Schedules and any supplemental agreements and appendixes constitute the entire validly legally binding agreement between the Parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. No waiver of any of the provisions in this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
10.14 Survival. The following provisions hereof shall survive any termination hereof: 1, 2.6, 2.8, 3.3, 3.4, 3.5, 3.6, 4, 5, 7, 8 and 9.
|Merchant Reserve / Period:||10%/6 months||10%, 6 months rolling reserves.|
|Wire Transfer Fee:||$35.00||Per wire transfer.|
|Check Fee:||$0.00||No fees on mailed checks.|
|Refund fees are calculated for each refund received and deducted from your account statement at the moment of closing your payment period.|
|Settlement period:||Bi-Weekly||Settlements will be done on the 1st and 16th of every month, 14 days in arrears.|
|Account Activation Fee:||$99.95||One-time activation fee.|
|Monthly Management Fee:||$89.95||Monthly account management fee.|
|Processing Rate:||9.9%||Same processing fees will apply when cross-selling third-party products acquired at checkout|
|Per gateway response.|
|Fee is based on the currency on which the transaction was billed.|
|Chargeback Prevention Fee:||$35.00,
|Applied to each successfully prevented chargeback.|
|Fee is based on the currency on which the transaction is billed.|
|Exchange Rate Fees:||2.50%||Applied when converting transactions into US Dollars (when customers pay using other currencies such as GBP, EUR, etc.).|
Annex 1 – Additional Compliance Notices for Support & MO/TO vendors
The conditions below outline the mandatory compliance measures that all Support and MOTO vendors must agree to before beginning to process.
Fines and Penalties
We take the quality of our Support Vendors very seriously. Any failure to adhere to one of the compliance notices outlined above will result in penalties ranging between USD $2,000 - $17,500 per infraction and may result in immediate termination of your NetPaySys Account and the holdback of any amounts due for a minimum of 180 days.
All the Materials including documents, communications, files, text, graphics, software, pictures, designs, icons, audio/video clips are copyright NetPaySys and its affiliates. ALL RIGHTS RESERVED. NetPaySys gives you the permission to electronically copy and print in hard copy portions of this website for the sole purpose of placing an order or using our services for placing an order. Any other use of materials is restricted, including but not limited to reproduction, modification, distribution, or republication for purposes other than mentioned above, without the prior written permission of NetPaySys.
NetPaySys and all other services referred on this website are trademarks or Intellectual property right of NetPaySys and/or its affiliates. The NetPaySys.com domain is owned and operated by NetPaySys and/or its affiliates.
This website is provided on an "as is" and "as available" basis. Certain links contained in this website that refers to other websites of third parties are not in control of NetPaySys. We do not make any representations or warranties of any kind, express or implied, as to the operation included in other websites.
Last update: July, 2010
1.1 THESE TERMS OF SALE ("TERMS") APPLY TO ALL OFFERS, SALES AND PURCHASES OF PRODUCTS ("PRODUCTS") OR SERVICES ("SERVICES") WHICH ARE SOLD THROUGH THE WEBSITE ON WHICH WE POST THESE CONDITIONS ("SITE") BY: NetPaySys. (REFERENCES TO "US", "WE" OR "OUR" BEING CONSTRUED ACCORDINGLY) THE SELLER, TO YOU, THE PURCHASER (REFERENCES TO "YOU" OR "YOUR" BEING CONSTRUED ACCORDINGLY).
1.2 ALL PURCHASES ARE FINAL, NON-CANCELABLE AND NON-REFUNDABLE, EXCEPT AS SPECIFIED IN THE APPLICABLE RETURNS POLICY.
2.1 Any prices, quotations and descriptions made or referred to on this Site are subject to availability, do not constitute an offer and may be withdrawn or revised at any time prior to our express acceptance of your order (as described below).
2.2 While we make every effort to ensure that items appearing on the Site are available, we cannot guarantee that all items are in stock or immediately available when you submit your order. We may reject your order (without liability) if we are unable to process or fulfill it. If this is the case, we will refund any prior payment that you have made for that item.
2.3 An order submitted by you constitutes an offer by you to us to purchase Products or Services on these Terms and is subject to our subsequent acceptance.
2.4 Prior to such acceptance, an automatic e-mail acknowledgement of your order may be generated. Please note that any such automatic acknowledgement does not constitute a formal acceptance of your order.
2.5 Our acceptance of your order takes effect and the contract concluded at the point where such offer is expressly accepted by us dispatching your order/commencing Services and accepting your credit card or other payment ("Acceptance").
2.6 We may keep records of orders received, acknowledgements, acceptances and other contract records for a reasonable period after Acceptance. We may be able to provide you with copies on written request; however you must make sure you print a copy of all such documents and these Terms for your own records.
3.1 You represent that information provided by you when placing your order is up-to-date materially accurate and is sufficient for us to fulfill your order.
3.2 You are responsible for maintaining and promptly updating your account information with us for accuracy and completeness and keeping such information (and any passwords given to you for the purposes of accessing the Site and/or purchasing Products) secure against unauthorized access.
3.3 Unless agreed otherwise or required by applicable law, any warranties provided in relation to Products or Services only extend to you on the understanding that you are a user and not a reseller of those Products or Services.
3.4 No warranty, commitment or any other obligation should ever be assumed by you on our behalf or on behalf of a Product manufacturer, licensor or supplier without our express prior written consent.
4.1 Prices payable for Products or Services are those in effect at the time of dispatch or delivery, unless otherwise expressly agreed. Prices may be indicated on the Site or an order acknowledgement but the authoritative price in the event of any discrepancy, is the price that is notified to you on our Acceptance.
4.2 We have the right at any time prior to our Acceptance to withdraw any discount and/or to revise prices to take into account increases in costs including (without limitation) costs of any materials, carriage, labor or the increase or imposition of any tax, duty or other levy and any variation in exchange rates. We also reserve the right to notify you of any mistakes in Product descriptions or errors in pricing prior to product dispatch. In such event if you choose to continue with fulfillment of the order, you acknowledge that the Product or Service will be provided in accordance with such revised description or corrected price.
4.3 The places that we deliver to are listed on the Site ("Territory"). Unless otherwise specified, prices quoted are
4.4 Payment shall be made prior to delivery and by such methods as are indicated on the Site (and not by any other means unless we have given our prior agreement).
4.5 Except as expressly provided elsewhere in these Terms or the Site, payment may be taken in full notwithstanding any claim for short delivery or defects.
4.6 We will charge credit or debit cards on dispatch of the Product or commencement of Services. We reserve the right to verify credit or debit card payments prior to Acceptance. 4.7 Where the payment is invoiced, each invoice shall be due on and made in full within thirty (30) days of the date of relevant invoice. If at any time you fail to pay any amount due on the relevant due date, we may by notice declare all invoiced amounts unpaid at that date to be immediately due and payable. 4.8 No counterclaim or set-off may be deducted from any payment due without our written consent. We may also take action against you for the price of Products at any time after payment has become due even though property in those Products may not yet have passed to you.
5.1 If you commit an act of bankruptcy or enter into a deed of arrangement with creditors or a court order for winding-up is made against you or you take or suffer any similar action in consequence of debt or we have cause to believe that you are unable to pay your debts as they fall due; or you fail to pay any amount by the due date or breach any of these Terms then, without prejudice to any of our other rights, we may:-
6.1 Delivery timescales/dates specified on the Site, in any order acknowledgement, acceptance or elsewhere are estimates only. While we endeavor to meet such timescales or dates, we do not undertake to dispatch Products and/or commence Services by a particular date or dates and shall not be liable to you in respect of delays or failure to do so.
6.2 Delivery shall be to a valid address within the Territory submitted by you and subject to Acceptance ("Delivery Address"). You must check the Delivery Address on any acknowledgement or acceptance we provide and notify us without delay of errors or omissions. We reserve the right to charge you for any extra costs arising from changes you make to the Delivery Address after you submit an order.
6.3 If you refuse or fail to take delivery of Products provided in accordance with these Terms, any risk of loss or damage to the Products shall nonetheless pass and without prejudice to any other rights or remedies we have:-
6.4 Except to the extent required as a result of any mandatory rights you have as a consumer under applicable law, you shall not be entitled to reject the Products in whole or in part by reason of short delivery and shall pay in full notwithstanding short delivery or non-delivery unless you notify us in writing of any claim within 7 days of the latest of the date of receipt of the relevant invoice or delivery whereupon you shall pay for the quantity actually delivered.
6.5 Where we deliver Products by installments, each installment constitutes a separate contract and any defect in any one or more installments shall not entitle you to repudiate the contract as a whole nor to cancel any subsequent installment.
6.6 Save as otherwise provided in these Terms, risk of loss of or damage to the Products passes to you on delivery or when placed in your possession or that of any carrier or transport provided by you, whichever shall occur first.
7.1 Except as set out above or under any applicable Returns Policy and subject to any rights you have under applicable law that cannot be excluded or limited by these Terms:
8.1 Where any Product supplied is or includes software ("Software"), this Software is licensed by the relevant licensor/owner subject to the relevant end-user license agreement or other license terms included with Software ("License Terms") and/or the Product. In addition:
9.1 TO THE MAXIMUM EXTENT LEGALLY PERMITTED, WHETHER OR NOT WE WERE AWARE OR ADVSED OF THE POSSIBILITY OF DAMAGES, AND WETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE (1) OUR AGGREGATE LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY) SHALL IN NO CIRCUMSTANCES EXCEED THE COST OF THE PRODUCTS YOU ORDERED AND THAT ARE MOST CLOSELY RELATED TO YOUR DAMAGES AND (2) WE SHALL NOT BE LIABLE FORSPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, OR COST OF COVER.
10.1 To the fullest extent permitted by law and save where expressly set out in any License Terms or elsewhere, we shall have no liability to you in the event of the Products or Services infringing or being alleged to infringe the proprietary rights of any third party. In the event that the Products are or may be the subject of patent, copyright, database right, registered design, trade mark or other rights of any third party, you should refer to the relevant terms of the Product manufacturer and/or licensor/owner. We shall be obliged to transfer to you only such right or title as we have.
11.1 All Product specifications, illustrations, drawings, particulars, dimensions, performance data and other information on the Site or made available by us are intended to represent no more than a general illustration of the Products and do not constitute a warranty or representation by us that the Products will conform with the same. You must refer to the manufacturer's specifications or warranty documentation to determine your rights and remedies in this regard.
11.2 You will have the benefit of the manufacturer's, licensor's or supplier's warranty with the Products supplied and should refer to the relevant documentation supplied with the Product in this regard. (If applicable, a Returns Policy may also set out procedures applicable to repairs or replacement of defective Products delivered.)
11.3 Your rights of repair or replacement of any Products or any part or parts thereof which are found to be defective will (except where agreed otherwise) be negated or rendered void where:
11.4 EXCEPT AS EXPRESSLY STATED OTHERWISE IN THIS SECTION 11, WE MAKE NO EXPRESS WARRANTIES OR REPRESENTATIONS AND WE DISCLAIM ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THESE TERMS STATE YOUR SOLE AND EXCLUSIVE REMEDIES.
12.1 If any license or consent of any government or other authority is required for the acquisition, carriage or use of the Products by you, you shall obtain such license or consent at your own expense and if necessary produce evidence to us on demand. Failure to do so shall not entitle you to withhold or delay payment of the price. Any additional expenses or charges incurred by us resulting from such failure shall be met by you.
12.2 Products licensed or sold to you under these Terms may be subject to export control laws and regulations in the Territory or other relevant jurisdiction where you take delivery or use them. You shall be responsible for complying with those laws and will not do anything to breach them.
12.3 Items entering the European Economic Area (EEA) from outside over a certain value may be subject to customs charges (e.g. where costs are in excess of your personal import allowance). You may be subject to customs charges, import duties and taxes, levied when the Product reaches your specified destination. Any such additional charges for customs clearance or import duties or taxes must be met by you, since we have no control over what these charges are. You should contact the local customs office in the relevant jurisdiction for further information on customs policies or duties.
13.1 Any notice or other communications in relation to our contract may be given by sending the same by hand delivery, pre-paid post, fax or e-mail to the latest address and contact that one party has notified in writing to the other. This will also be the address for service of legal proceedings in the manner prescribed by law. Except as set out above in relation to cancellation of consumer orders, such notices or communications (where properly addressed) shall be considered received:
14.2 In relation to security of orders that you place with us:
15.1 You shall not assign, transfer, charge or make over or purport to assign transfer charge to make over your rights under these Terms
15.2 We shall not be liable to you nor held in breach of contract for any loss or damage which may be suffered as a direct or indirect result of us being prevented, hindered or delayed in the performance by reason of any circumstances beyond our reasonable control including (but not limited to) any act of God, war, riot, civil commotion, government action, explosion, fire, flood, storm, accident, strike, lock-out, trade dispute or labor disturbance, breakdown of plant or machinery, interruption in the supply of power or materials and in such event we may elect to cancel your order and refund any payments made.
15.3 You acknowledge that these Terms supersede and cancel all previous contracts, agreements and working arrangements whether oral or written, express or implied, between us. These Terms prevail over any other terms or conditions contained in or referred to elsewhere or implied by trade, custom or course of dealing. Any purported terms or conditions to the contrary are hereby excluded to the fullest extent legally permitted. To the fullest extent permitted under applicable law, we reserve the right to modify these Terms upon prior written notice to you with effect for the future - subject to your right to reject, by way of written notice, our modifications to these Terms with respect to any orders for which Acceptance, but not yet fulfillment, has occurred.
15.4 No relaxation, forbearance, delay or indulgence by either you or us in enforcing any of these Terms or the granting of time by either party to the other shall prejudice or restrict such rights and powers.
15.5 No waiver of any term or condition of these Terms shall be effective unless made in writing and signed by us. The waiver of any breach of any Term shall not be construed as a waiver of any subsequent breach or condition.
15.6 If for any reason we determine or a court of competent jurisdiction finds that any provision or portion of these Terms to be illegal, unenforceable, or invalid under applicable law in a particular jurisdiction:
16.1 The construction validity and performance of these Terms shall be governed by the Laws of the City of Sliema, Malta and the parties submit to the exclusive jurisdiction of Sliema, Malta in the event of legal proceedings arising from any dispute;
16.2 The language of any dispute resolution procedure or any proceedings will be English.
The following Terms & Conditions (“Terms”) governs the relationship between a Service Provider ("Service Provider") offering remote call center services including remote computer repair (“Services”) and the procurer of these services ("Consumer”).
Service Provider will use commercially reasonable efforts to assist Consumer, and to repair Consumer’s computer if required, in return for payments that are described to Consumer telephonically.
Service Provider's Services does not support the following:
In order to diagnose and resolve technology problems with Consumer’s computer, Service Provider technicians must access Consumer’s computer. Requesting technical support from our technicians constitutes Consumer’s agreement that our technicians may provide the following Services:
We use software that: (a) provides non-personal computer system information, including information about Consumer’s computer's performance and configuration, to us so that we can diagnose the problem; (b) allows us temporarily to control Consumer’s computer remotely and change Consumer’s computer's settings so that we can work on resolving Consumer’s problem; and (c) consists of utilities and tools to improve Consumer’s computer's performance.
We use the software and the information it provides solely to attempt to diagnose and resolve existing and potential problems, and we use reasonable efforts to limit the software's access to personal information on Consumer’s computer. However, Consumer agree that, while providing Services, we may gain access to personal information on Consumer’s computer, and Consumer agree that Service Provider has no liability for doing so.
Requesting Services also constitutes Consumer’s agreement that:
With respect to the Services, Consumer also acknowledges and agrees to the following. In order to use the Services, Consumer must have up-to-date and operational antivirus software installed on Consumer’s device, and Service Provider, in its sole and absolute discretion, must determine that Consumer’s device is virus-free.
We make reasonable efforts to address Consumer’s computer problems in a timely manner, but there may be delays. Consumer acknowledges and agrees that delays may result from: (1) high levels of demands and our technicians' abilities to make return calls to Consumer; (2) the need to "escalate" Consumer’s computer problem to one or more technicians with additional expertise; and (3) our inability to reach Consumer by telephone.
Consumer acknowledges and agrees that, because of circumstances that are not within Service Provider's control, there may be lengthy delays in Service Provider's ability to provide its Services or its Services may not be available to Consumer at all. The circumstances include, but are not limited to, the following: the performance of maintenance on Service Provider's systems; Internet service disruptions; vandalism; sabotage; the outbreak of a new computer virus; strikes; riots; wars; other military actions; civil disorders or unrest; acts of terrorism; fires; floods, earthquakes; acts of third parties; and acts of God. Consumer acknowledge and agree that Service Provider has no liability to Consumer or to any third party for any direct or indirect, special or consequential damages resulting from such delays or the unavailability of the Services.
Consumer also acknowledges and agrees that Service Provider has no obligation to provide its Services in connection with any of the following: devices that have been altered, damaged or modified; devices with configurations that are beyond our control; software that is incompatible with Consumer’s computer; problems resulting from external causes including accidents, abuse, misuse or problems with electrical power; problems resulting from usage that is not in accordance with the manufacturer's instructions; problems resulting from failure to perform maintenance suggested by the manufacturer; problems resulting from the use of accessories, parts or components that are not compatible with the device; and problems resulting from negligence or malfunction beyond the reasonable control of Service Provider.
Finally, Consumer acknowledges and agrees that Service Provider, in its sole and absolute discretion, may suspend for a reasonable time Consumer’s rights under Consumer’s Services subscription or terminate Consumer’s Services subscription. If we terminate Consumer’s subscription, we may, at our sole discretion, refund a pro rata portion of Consumer’s subscription purchase price.
Service Provider reserves the right to "bundle" or sell Services with other products and services. The additional products and services may be available for purchase only with Services and only for a limited time.