OUR TERMS AND CONDITIONS OF SUPPLY
1. THESE TERMS
1.1 What these terms cover. These are the terms and conditions on which we supply products to you, whether these are goods, services or digital content.
1.2 Why you should read them. Please read these terms carefully before you submit your order to us, subscribe to us, purchase a product or use our related services. These terms tell you who we are, how we will provide products to you, how you and we may change or end the contract, what to do if there is a problem and other important information. If you think that there is a mistake in these terms, please contact us to discuss.
1.3 Are you a business customer or a consumer? In some areas you will have different rights under these terms depending on whether you are a business or consumer.
You are a consumer if:
• You are an individual.
• You are buying products from us wholly or mainly for your personal use (not for use in connection with your trade, business, craft or profession). Provisions specific to consumers are in red and those specific to businesses only are in green.
1.4 If you are a business customer this is our entire agreement with you. If you are a business customer these terms constitute the entire agreement between us in relation to your purchase. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in these terms and that you shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
2. INFORMATION ABOUT US AND HOW TO CONTACT US
2.1 Who we are. We are Smarter Applications Limited a company registered in England and Wales. Our company registration number is 08608729 and our registered office is at Block 7, Unit 7.2.1 The Leather Market, Weston Street, London SE1 3ER. Our registered VAT number is GB 172430822.
2.2 How to contact us. You can contact us by telephoning our customer service team at 0800 802 1237 or by emailing us at firstname.lastname@example.org or writing to us at Block 7, Unit 7.2.1 The Leather Market, Weston Street, London SE1 3ER.
2.3 How we may contact you. If we have to contact you we will do so by telephone or by writing to you at the email address or postal address you provided to us in your order.
2.4 ”Writing” includes emails. When we use the words “writing” or “written” in these terms, this includes emails.
3. OUR CONTRACT WITH YOU
3.1 How we will accept your order. Our acceptance of your order will take place when we email you to accept it, at which point a contract will come into existence between you and us.
3.2 If we cannot accept your order. If we are unable to accept your order, we will inform you of this and will not charge you for the product. This might be because the product is out of stock, because of unexpected limits on our resources which we could no reasonably plan for because we have identified an error in the price or description of the product or because we are unable to meet a delivery deadline you have specified.
3.3 Your order number. We will assign an order number to your order and tell you what it is when we accept your order. It will help us if you can tell us the order number and/or account number and/or email address whenever you contact us about your order.
3.4 If we cannot provide the digital content or services. If we are unable to provide the digital content or any services, we will inform you of this in writing and will not charge you for the digital content or services (if applicable).
4. OUR PRODUCTS
4.1 Products may vary slightly from their pictures. The images of the products on our website are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that a device's display of the colours accurately reflects the colour of the products. Your product may vary slightly from those images.
4.2 Product packaging may vary. The packaging of the product may vary from that shown in images on our website.
5. YOUR RIGHTS TO MAKE CHANGES
5.1 If you wish to make a change to the product you have ordered please contact us. We will let you know if the change is possible. If it is possible we will let you know about any changes to the price of the product, the timing of supply or anything else which would be necessary as a result of your requested change and ask you to confirm whether you wish to go ahead with the change. If we cannot make the change or the consequences of making the change are unacceptable to you, you may want to end the contract (see Clause 8- Your rights to end the contract).
6. OUR RIGHTS TO MAKE CHANGES
6.1 Minor changes to the products. We may change the product: (a) to reflect changes in relevant laws and regulatory requirements; and (b) to implement minor technical adjustments and improvements, for example to address a security threat. These changes will not affect your use of the product.
6.2 Updates to digital content. We may update our digital content, provided that the digital content shall always match the description of it that we provided to you before you bought it.
7. PROVIDING THE PRODUCTS
7.1 When we will provide the products. During the order process we will let you know when we will provide the products to you.
7.2 When we will provide the digital content or services. As we are providing ongoing services and digital content, we will supply the services or digital content to you until either the services are completed (if applicable) or you end the contract as described in Clause 8 or we end the contract by written notice to you as described in Clause 10.
7.3 We are not responsible for delays outside our control. If our supply of the products is delayed by an event outside our control then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for delays caused by the event, but if there is a risk of substantial delay you may contact us to end the contract and receive a refund for any products you have paid for but not received.
7.4 When you become responsible for the goods. The goods will be your responsibility from the time we deliver the product to the address you gave us or you or a carrier organised by you collect it from us.
7.5 When you own goods. You own a product which is goods once we have relieved payment in full.
7.6 What will happen if you do not give required information to us. We may need certain information from you so that we can supply the products to you. If so, this will have been stated in the description of the products on our website. We will contact you to ask for this information. If you do not give us this information within a reasonable time of us asking for it, or if you give us incomplete or incorrect information, we may either end the contract (and Clause 11.1 will apply) or make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We will not be responsible for supplying the products late or not supplying any part of them if this is caused by you not giving us the information we need within a reasonable time of us asking for it.
7.7 Reasons we may suspend the supply of products or supply of digital content or (if applicable) services to you. We may have to suspend the supply of a product to: (a) deal with technical problems or make minor technical changes; or (b) update the product to reflect changes in relevant laws and regulatory requirements.
7.8 Your rights if we suspend the supply of products or digital content. We will contact you in advance to tell you we will be suspending supply of the product, digital content or services, unless the problem is urgent or an emergency. If we have to suspend the product, digital content or services for longer than one week in any one month period we will adjust the price so that you do not pay for product, digital content or services (if applicable) while it is suspended. You may contact us to end the contract if we suspend the product, digital content or services, or tell you we are going to suspend it, in each case for a period of more than 8 weeks and we will refund any sums you have paid in advance for the product in respect of the period after you end the contract.
7.9 We may also suspend supply of the products if you do not pay. If you do not pay us for the products and services when you are supposed to (see Clause 10.1), and you still do not make payment within 7 days of us reminding you that payment is due, we may suspend supply of the products until you have paid us the outstanding amounts. We will contact you to tell you we are suspending supply of the products. We will not suspend the supply of products where you dispute the unpaid invoice. We will not charge you for the products during the period for which they are suspended. As well as suspending the products we can also charge you interest on your overdue payments.
8. YOUR RIGHTS TO END OR SUSPEND THE CONTRACT
8.1 You can always end your contract with us. Your rights when you end the contract will depend on what you have bought, whether there is anything wrong with it, how we are performing, when you decide to end the contract and whether you are a consumer or business customer: (a) If what you have bought is faulty or misdescribed you may have a legal right to end the contract (or to get the product repaired or replaced or a service re-performed or to get some or all of your money back), see Clause 12 if you are a consumer and Clause 13 if you are a business; (b) If you want to end the contract because of something we have done or have told you we are going to do, see Clause 9; (d) In all other cases (if we are not at fault and you are not a consumer exercising your right to change your mind), see clause 9.
8.2 Ending the contract because of something we have done or are going to do. If you are ending a contract for a reason set out at (a) to (e) below the contract will end immediately and we will refund you in full for any products which have not been provided and you may also be entitled to compensation. The reasons are: (a) we have told you about an upcoming change to the product or these terms which you do not agree to (see Clause 6); (b) we have told you about an error in the price or description of the product you have ordered and you do not wish to proceed; (c) there is a risk that supply of the products may be significantly delayed because of events outside our control; (d) we have suspended supply of the products for technical reasons, or notify you we are going to suspend them for technical reasons; or (e) you have a legal right to end the contract because of something we have done wrong.
8.3 When consumers do not have a right to change their minds. Your right as a consumer to change your mind does not apply in respect of: (a) digital products after you have started to download or stream these; (b) services, once these have been completed, even if the cancellation period is still running; (c) products sealed for health protection or hygiene purposes, once these have been unsealed after you receive them; (d) sealed audio or sealed video recordings or sealed computer software, once these products are unsealed after you receive them; and (e) any products which become mixed inseparably with other items after their delivery.
8.4 How long do consumers have to change their minds? If you are a consumer that has downloaded or bought the digital content for download or streaming (for example, the mobile application) you have 14 days after the day we email you to confirm we accept your order, or, if earlier, until you start downloading or streaming. If we delivered the digital content to you immediately, and you agreed to this when ordering, you will not have a right to change your mind.
9. HOW TO END THE CONTRACT WITH US
9.1 Tell us you want to end the contract. To end the contract with us, please let us know by doing one of the following: (a) Phone or email. Call customer services on 0800 802 1237 or email us at email@example.com. Please provide your name, details of the order and, where available, your phone number and email address. (b) Delete your account and the mobile software application. If you delete your account with us and the mobile software application, then we will no longer be able to provide you with services and data content and our contract will come to an end.
9.2 Returning products after ending the contract. If you end the contract for any reason after products have been dispatched to you or you have received them, you must return them to us. You must either return the goods in person to where you bought them, post them back to us at Block 7, Unit 7.2.1 the Leather Market, Weston Street, London SE1 3ER. Please call customer services on 0800 802 1237 or email us at firstname.lastname@example.org for a return label.
9.3 When we will pay the costs of return. We will pay the costs of return: (a) if the products are faulty or misdescribed; (b) if you are ending the contract because we have told you of an upcoming change to the product or these terms, an error in pricing or description, a delay in delivery due to events outside our control or because you have a legal right to do so as a result of something we have done wrong; or In all other circumstances you must pay the costs of return.
10. OUR RIGHTS TO END THE CONTRACT
10.1 We may end the contract if you break it. We may end the contract for a product at any time by writing to you if: (a) you do not make any payment to us when it is due and you still do not make payment within 7 days of us reminding you that payment is due; (b) you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide the products (c) you do not, within a reasonable time, allow us to deliver the products to you or collect them from us; or (d) you do not, within a reasonable time, allow us access to your premises to supply the services.
10.2 You must compensate us if you break the contract. If we end the contract in the situations set out in Clause 10.1 we will refund any money you have paid in advance for products we have not provided but we may deduct reasonable compensation for the net costs we will incur as a result of your breaking the contract.
10.3 We may withdraw the product. We may write to you to let you know that we are going to stop providing the product and/or services. We will let you know at least one month in advance of our stopping the supply of the product and/or services and will refund any sums you have paid in advance for products and/or services which will not be provided.
11. IF THERE IS A PROBLEM WITH THE PRODUCT
11.1 How to tell us about problems. If you have any questions or complaints about the product, please contact us. You can telephone our customer service team at 0800 802 1237 or write to us at email@example.com or at Block 7, Unit 7.2.1 The Leather Market, Weston Street, London SE1 3ER
12. YOUR RIGHTS IN RESPECT OF DEFECTIVE PRODUCTS IF YOU ARE A CONSUMER
12.1 If you are a consumer we are under a legal duty to supply products and/or services that are in conformity with this contract. See the box below for a summary of your key legal rights in relation to the products and/or services. Nothing in these terms will affect your legal rights.
Summary of your key legal rights
This is a summary of your key legal rights. These are subject to certain exceptions. For detailed information please visit the Citizens Advice website www.adviceguide.org.uk or call 03454 04 05 06.
If your product is goods, for example a FridgeCam or iKettle the Consumer Rights Act 2015 says goods must be as described, fit for purpose and of satisfactory quality. During the expected lifespan of your product your legal rights entitle you to the following:
a) Up to 30 days: if your goods are faulty, then you can get an immediate refund. b) Up to six months: if your goods can't be repaired or replaced, then you're entitled to a full refund, in most cases.
c) Up to six years: if your goods do not last a reasonable length of time you may be entitled to some money back.
If your product is digital content, for example the mobile phone app, the Consumer Rights Act 2015 says digital content must be as described, fit for purpose and of satisfactory quality:
a) If your digital content is faulty, you're entitled to a repair or a replacement.
b) If the fault can't be fixed, or if it hasn't been fixed within a reasonable time and without significant inconvenience, you can get some or all of your money back
c) If you can show the fault has damaged your device and we haven't used reasonable care and skill, you may be entitled to a repair or compensation
12.2 Your obligation to return rejected products. If you wish to exercise your legal rights to reject products you must return them to where you bought them from.
13. YOUR RIGHTS IN RESPECT OF DEFECTIVE PRODUCTS IF YOU ARE A BUSINESS
13.1 If you are a business customer we warrant that on delivery, and for a period of 24 months from the date of delivery (warranty period), any products which are goods shall: (a) conform with their description; (b) be free from material defects in design, material and workmanship; (c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and (d) be fit for any purpose held out by us.
13.2 Subject to Clause 13.3, if: Summary of your key legal rights This is a summary of your key legal rights. These are subject to certain exceptions. For detailed information please visit the Citizens Advice website www.adviceguide.org.uk or call 03454 04 05 06. If your product is goods, for example a FridgeCam or iKettle the Consumer Rights Act 2015 says goods must be as described, fit for purpose and of satisfactory quality. During the expected lifespan of your product your legal rights entitle you to the following: a) Up to 30 days: if your goods are faulty, then you can get an immediate refund. b) Up to six months: if your goods can't be repaired or replaced, then you're entitled to a full refund, in most cases. c) Up to six years: if your goods do not last a reasonable length of time you may be entitled to some money back. If your product is digital content, for example the mobile phone app, the Consumer Rights Act 2015 says digital content must be as described, fit for purpose and of satisfactory quality: a) If your digital content is faulty, you're entitled to a repair or a replacement. b) If the fault can't be fixed, or if it hasn't been fixed within a reasonable time and without significant inconvenience, you can get some or all of your money back c) If you can show the fault has damaged your device and we haven't used reasonable care and skill, you may be entitled to a repair or compensation (a) you give us notice in writing during the warranty period within a reasonable time of discovery that a product does not comply with the warranty set out in Clause 13.1; (b) we are given a reasonable opportunity of examining such product; and (c) you return such product to us at our cost, we shall, at our option, repair or replace the defective product, or refund the price of the defective product in full.
13.3 We will not be liable for a product’s failure to comply with the warranty in Clause 13.1 if: (a) you make any further use of such product after giving a notice in accordance with Clause 13.2(a); (b) the defect arises because you failed to follow our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the product or (if there are none) good trade practice; (c) the defect arises as a result of us following any drawing, design or specification supplied by the Customer; (d) you alter or repair the product without our written consent; or (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
13.4 Except as provided in this Clause 13, we shall have no liability to you in respect of a product’s failure to comply with the warranty set out in Clause 13.1.
13.5 These terms shall apply to any repaired or replacement products supplied by us under Clause 12.2.
14. PRICE AND PAYMENT
14.1 Where to find the price for the product. The price of the product (which includes VAT) will be the price indicated on the order page on our website and on the email confirming the order details.
14.2 When you must pay and how you must pay. We accept payment by debit card and most major credit cards. When you must pay depends on what products you are buying:
(a) For goods, you must pay for the products before we dispatch them. We will not charge your credit or debit card until we dispatch the products to you.
(b) For digital content, you must pay for the products before you download them (if applicable).
14.3 Our right of set-off. As a business customer you must pay all amounts due to us under these terms in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
14.4 We can charge interest if you pay late. If you do not make any payment to us by the due date we may charge interest to you on the overdue amount at the rate of 4% a year above the base lending rate of Barclays Bank plc from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount.
14.5 What to do if you think an invoice is wrong. If you think an invoice is wrong please contact us promptly to let us know. You will not have to pay any interest until the dispute is resolved. Once the dispute is resolved we will charge you interest on correctly invoiced sums from the original due date.
15. OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU IF YOU ARE A CONSUMER
15.1 We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process.
15.2 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of your legal rights in relation to the products and for defective products under the Consumer Protection Act 1987
15.3 When we are liable for damage to your property. If we are providing services in your property, we will make good any damage to your property caused by us while doing so. However, we are not responsible for the cost of repairing any pre-existing faults or damage to your property that we discover while providing the services.
15.4 When we are liable for damage caused by defective digital content. If defective digital content which we have supplied damages a device or digital content belonging to you and this is caused by our failure to use reasonable care and skill we will either repair the damage or pay you compensation. However, we will not be liable for damage which you could have avoided by following our advice to apply an update offered to you free of charge or for damage which was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
15.5 We are not liable for business losses. If you are a consumer we only supply the products for to you for domestic and private use. If you use the products for any commercial, business or re-sale purpose our liability to you will be limited as set out in Clause 13.
16. OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU IF YOU ARE A BUSINESS
16.1 Nothing in these terms shall limit or exclude our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; (d) defective products under the Consumer Protection Act 1987; or
(c) any matter in respect of which it would be unlawful for us to exclude or restrict liability.
16.2 Except to the extent expressly stated in Clause 12.1 all terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982 are excluded.
16.3 Subject to Clause 16.1:
(a) we shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with any contract between us; and.
(b) our total liability to you for all other losses arising under or in connection with any contract between us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to 100% of the total sums paid by you for products under such contract.
17. HOW WE MAY USE YOUR PERSONAL INFORMATION
18. OTHER IMPORTANT TERMS
18.1 We may transfer this agreement to someone else. We may transfer our rights and obligations under these terms to another organisation. We will contact you to let you know if we plan to do this. If you are unhappy with the transfer you may contact us to end the contract within 2 weeks of us telling you about it and we will refund you any payments you have made in advance for products not provided.
18.2 You need our consent to transfer your rights to someone else. You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing.
18.3 Nobody else has any rights under this contract.This contract is between you and us. No other person shall have any rights to enforce any of its terms. Neither of us will need to get the agreement of any other person in order to end the contract or make any changes to these terms.
18.4 If a court finds part of this contract illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
18.5 Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the products, we can still require you to make the payment at a later date.
18.6 Which laws apply to this contract and where you may bring legal proceedings if you are a consumer. These terms are governed by English law and you can bring legal proceedings in respect of the products in the English courts. If you live in Scotland you can bring legal proceedings in respect of the products in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in respect of the products in either the Northern Irish or the English courts.
18.7 Which laws apply to this contract and where you may bring legal proceedings if you are a business. If you are a business, any dispute or claim arising out of or in connection with a contract between us or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.
19.1 Our policy lasts 30 days. If 30 days have gone by since your purchase, unfortunately, we can’t offer you a refund or exchange. If a products is faulty after the 30 day period, your product is still covered under warranty for 24 months.
19.2 To be eligible for a return, your item must be unused and in the same condition that you received it. It must also be in the original packaging.