Terms Of Supply

Issue date of these Conditions: 02-02-2008


1. Definitions

“Company” means GENIUS, a trading name of KYE SYSTEMS UK LTD (registered number: 260 2501, registered address at Unit 4, 131 Beddington Lane, Croydon, CR0 4TD) or its permitted assigns.
“Conditions” means these terms and conditions.
“Contract” means any contract between the Company and the Customer for the sale and purchase of Supplies.
“Customer” means the person(s) or company whose order for Supplies is accepted by the Company.
“Goods” means any goods supplied or to be supplied by the Company to the Customer.
“Services” means any services supplied or to be supplied by the Company to the Customer.
“Supplies” means any Goods or Services.
“in writing” includes electronic communications.


2. Conditions

All orders are accepted by the Company subject to and in accordance with these Conditions. These Conditions override and exclude any terms or conditions in or referred to in any negotiations or course of dealing between the Company and the Customer or set out in the Customer’s standard terms and conditions. If there is any conflict between the provisions of the order and these Conditions then these Conditions will prevail unless the Company agrees otherwise in writing. Together with any terms accepted by the Company in connection with an order, these Conditions constitute the entire agreement between the Company and the Customer in relation to the Supplies ordered. No variation to these Conditions is permitted unless expressly authorized in writing by a director of the Company.


3. Prices
 

Prices for Supplies are in £ sterling, inclusive of VAT for home users and exclusive of VAT for trade or corporate customers. The Company reserves the right to change its prices without notice at any time. Prices charged will be those prevailing when an order is accepted. Where Supplies are to be made in instalments (‘Scheduled Delivery’) the price payable for them will be that applicable at the time of dispatch of the first batch of Supplies but, where Scheduled Delivery may continue for a period of 60 days or more, the Company reserves the right to charge the Customer further amounts if the price of the Supplies increases before the end of that period.


4. Payment
 

Payment is accepted by Visa, MasterCard, Switch, Solo, Delta, Visa Debit, BACS, CHAPS and cheque and must be received prior to delivery of goods for non credit account customers.

The Company reserves the right to request payment In advance In relation to any order. Time for payment is of the essence. If the Customer fails to make payment by the due date then, without prejudice to any other right or remedy, the Company shall be entitled to:
i. cancel the order or suspend any further deliveries or performance;
ii. appropriate any payment made by the Customer to such of the Supplies (or the Supplies made under any other contract) as the Company may think fit; and
iii. charge interest (both before and after any judgement) on the amount unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 until payment is made in full.

The Company reserves the right to charge for copy invoices or credit notes at the rate of £1.00 per copy where the original has been lost or misplaced by the Customer. If legal action is taken to recover monies due to the Company then the Company reserves the right to charge the Customer statutory compensation in accordance with the Late Payment of Commercial Debts Regulations 2002. The statutory compensation shall become payable immediately that legal action is commenced, whether demanded or not and may be claimed within the legal action.

The Company reserves the right where a customer pays for an order in advance, to hold back delivery of goods pending confirmation of cleared funds in the Company’s bank account. The Company will endeavour to communicate this to the Customer.


5. New accounts
 

A Customer wishing to open a credit account must furnish such information as may be requested by the Company and the Company may make a search with a credit reference agency. The Company reserves the right in its absolute discretion to grant, refuse or discontinue any credit facilities or reduce or suspend any credit limit at any time.

 

6. Orders
 

The Company reserves the right to decline to trade with any company or person.

To avoid duplication, written confirmation of telephone orders must be clearly marked ‘Confirmation only’. The Company will not accept liability for orders not so marked and duplicate orders will be charged accordingly. Once accepted, no order may be canceled without the prior written agreement of a director of the Company. Orders for Goods are accepted by the Company by dispatching the Goods provided, however, that dispatch will not be acceptance where the price for the Supplies has been incorrectly quoted or referenced by the Customer in its order.
 

For on-line customers purchasing over on our website clicking the ‘Continue’ button after selecting your payment method you are offering to buy the goods at the price stated subject to our terms and conditions.

 

7. Delivery
 

Save as set out below, the Company will use all reasonable endeavours to dispatch Goods ordered before 5pm Monday to Friday. Such deliveries are subject to the Standard Delivery Charges. The Company reserves the right to levy a delivery and/or handling charge in the amount notified to the Customer prior to dispatch for delivery out of the standard delivery area.  
 

Delivery will be made to the address specified by the Customer. The Company may use any method of delivery available to it. The Company will use reasonable endeavours to meet delivery and/or performance estimates but, except as set out in 8 below, in no circumstances shall it be liable to compensate the Customer for non-delivery, non-performance or late delivery or performance. Time for delivery and/or performance will not be of the essence. The Company reserves the right to delay despatch for a number of reasons, including to perform any necessary credit or anti-fraud checks or procedures or to ensure that payment has been received in cleared funds in full. Where dispatch is delayed for such reasons the Company will use reasonable endeavours to inform the Customer.

 

8. Inspection, defects and non delivery
 

The Customer must inspect the Supplies as soon as is reasonably practicable after delivery. The Company shall not be liable for any defect in the Supplies unless written notice is given to the Company within 3 days of such date. The Company does not write software comprised in the Goods and it is the Customer’s responsibility to check for the presence of computer viruses before the Goods are used. The quantity of any consignment of Goods, as recorded by the Company upon dispatch from the Company’s place of business, shall be conclusive evidence of the quantity received by the Customer on delivery, unless the Customer can provide conclusive evidence to the contrary. The Company will not be liable for any non-delivery of Goods or non-performance of Services unless written notice is given to the Company within 3 days of the date when Goods should have been delivered in the ordinary course of events. Subject to 16(i) below, any liability of the Company for non-delivery or non performance or for Goods notified as defective on delivery or Services notified as defective following performance in accordance with this Condition 8 will be at the Company’s discretion to replace the Goods within a reasonable time or to refund the price then paid in respect of such Supplies.

 

9. Returns
 

Except as detailed in Condition 10 below, no order can be canceled or accepted for credit without the prior written agreement of the Company. If cancellation/credit is accepted by the Company, the Customer must obtain a returns authorisation number from the Company prior to returning the Goods. Goods must then be returned, at the Customer’s risk and expense, for receipt by the Company within 5 days of their delivery by the Company and must be undamaged, in re-saleable condition and in original packaging (which shall include any of the Company’s outer packaging). The Customer should return the Goods to “The Returns Department, KYE, Unit 4 131 Beddington Lane Croydon CR0 4TD “ quoting the Customer’s account number, order number or sales invoice number and the Genius authorized returns number. The Customer is responsible for returning Goods to the Company and for providing proof of delivery of such return. Goods returned after 5 days as ‘unwanted’ or ‘incorrectly ordered’ may be accepted at the discretion of the Company but will be subject a restocking fee of 30% of the invoice value of the Goods.

 

10. Distance selling regulations
 

If the Customer is buying as a ‘consumer’, as defined in The Consumer Protection (Distance Selling) Regulations 2000, the Customer may, provided the Customer has taken reasonable care of the Goods and returns the Goods complete, undamaged, in re-saleable condition and in their original packaging (including the Company’s outer packaging), return the Goods and be repaid the price paid in respect of them within 5 working days (excluding Saturday and Sunday and any UK Bank Holiday) of their delivery. To return Goods on this basis, the Customer must notify the Company in writing (rma@geniusnet.co.uk) prior to return of the Goods. The return of the goods must be, in their original packaging, within the 5 day period to “ The Returns Department, KYE, Unit 4 131 Beddington Lane Croydon CR0 4TD “ quoting the Customer’s account number, order number or sales invoice number and the authorized return number issued by Genius. Goods should be returned with the proof of sending and the Customer is responsible for the payment of all return costs. Following receipt of Goods which comply with this Condition 10, the Company will refund to the Customer the price paid in respect of the Goods excluding delivery.  Any goods returned to Genius without prior authorization or which are not in the condition set out above will be rejected and returned to Customer at the Customer’s cost.

 

11. Description
 

All specifications, drawings, illustrations, descriptions and particulars of weights, dimensions, capacity or other details, including any statements as to compliance with legislation or regulation (together, “Descriptions”) wherever they appear (including without limitation in this website , on despatch notes, invoices or packaging) are intended to give a general idea of the Supplies, but will not form part of the Contract. The Company shall take all reasonable steps to ensure the accuracy of descriptions but relies on such information, if any, as may have been provided to it by its suppliers and accepts no liability in contract or tort or under statute or otherwise for any error or omission in such detail whether caused by the Company’s negligence or otherwise.

 

12. Risk and ownership
 

The risk of damage to or loss of Goods will pass to the Customer when the Goods are unloaded from the Company’s carriers at the Customer’s premises. Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due from the Customer to the Company on any account whatsoever. Until ownership passes to the Customer, the Customer must hold the Goods on a fiduciary basis as the Company’s bailee. If payment is not received in full by the due date, or the Customer passes a resolution for winding up or a court shall make an order to that effect, or a receiver is appointed over any assets or the undertaking of the Customer or an execution or distress is levied against the Customer, the Company shall be entitled, without previous notice, to retake possession of the Goods and for that purpose to enter upon any premises occupied or owned by the Customer.

 

13. Quality assurance
 

All Goods detailed in this website have been produced in strict accordance with standard quality procedures, unless indicated otherwise on the dispatch documentation. Further details can be obtained from our telephone sales office at the time of ordering.

 

14. Suitability of the purpose
 

The responsibility for ensuring that Supplies are sufficient and suitable for a particular purpose is the Customer’s. We do not warrant the suitability of goods for a particular purpose, and you should check specifications and suitability before ordering. Goods are not sold on a trial basis. As a result of continuing product development the specification or design of goods may vary between the actual goods and the picture provided in the website. 

 
15. Warranty/Guarantee
 

Unless otherwise stated the Goods are Warrantied to be free of manufacturing defects for a period of 12 months from the date of dispatch. Not all Goods are supplied with a such a guarantee and guarantees which may be provided may vary in duration. It is the Customer’s responsibility to check at the time of purchase as to the applicability of the Company’s guarantee and/or the terms of any guarantee. Where the Company’s guarantee is provided, the Company will, at the Company’s discretion, free of charge, repair or, replace Goods (like to like) or refund.
 

To return the faulty Goods, the Customer must notify the Company in writing (rma@geniusnet.co.uk) prior to the return. The return of the goods must be, in a reasonable packaging, within the 7 day after the receipt of the return number from Genius, return to “ The Returns Department, KYE, Unit 4 131 Beddington Lane Croydon CR0 4TD “ quoting the Customer’s account number, order number or sales invoice number and the authorized return number issued by Genius. Goods should be returned with a proof of sending and the Customer is responsible for the payment of all return costs.  Any goods returned to Genius without prior authorization or which are not in the condition set out above will be rejected and returned to Customer at Customer’s cost. It’s the Company’s aim to resolve the retuned within 5-days and the maximum is 10-days. Software programs are supplied on the strict understanding that the Company does not warrant their function to be free from defects or error.
 

This obligation will not apply:

• if the defect arises because the Customer has altered or repaired such Goods without the written consent of the Company;
• because the Customer did not follow the instructions for storage, usage, installation, use or maintenance of the Goods;
• if the Customer has failed to notify the Company of any defect in accordance with Condition 8 where the defect should have been reasonably apparent on reasonable inspection; or
• if the Customer fails to notify the Company of the defect within 12 months (or such other period as the Company shall specify at the time of acceptance of the order for the Supplies) of the date of dispatch of the Goods or performance of the Services.
   

Any replacement Supplies made or Goods repaired under this Condition 15 will be guaranteed on these terms for any unexpired portion of the period of guarantee given on the original Supplies. Any Goods which have been replaced will belong to the Company.

Except as set out in 16 (i) below and 8 above, this Condition is the Company’s sole obligation and the Customer’s sole remedy for defective Supplies and is accepted by the Customer in substitution for all express or implied representations, conditions or warranties, statutory or otherwise, as to the satisfactory quality, fitness for purpose or performance of the Goods (or any materials used in connection therewith) or the standard of workmanship of the Services and all such representations, conditions and warranties are excluded.

 

16. Liability
 

(i) The Company does not exclude its liability to the Customer:

• For breach of the Company’s obligations under section 12 Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982;
• For personal injury or death arising as a result of the Company’s negligence;
• Under section 2(3) Consumer Protection Act 1987; 
• For breach of the statutory implied conditions in sections 13,14 and 15 of the Sale of Goods Act 1979 where the Customer deals as a ‘consumer’ as defined in the Unfair Contract Terms Act 1997; 
• For any matter which it would be illegal for the Company to exclude or to attempt to exclude its liability; or 
• For fraud, including fraudulent misrepresentation
   

And nothing in these Conditions shall affect the statutory rights of a Customer who deals as a ‘consumer’ as defined in the Unfair Contract Terms Act 1977.

(ii) Except as provided in Conditions 8 (inspection, defects on delivery and non delivery), 14 (performance and fitness for purpose), and 15 (Warranty and Guarantee) and this Condition 16 above, the Company will be under no liability to the Customer whatsoever (whether in contract, tort, (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct or indirect or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of use, loss of data, computer downtime, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, loss of contracts and like loss) howsoever caused or arising out of or in connection with:

• Any of the Supplies, or the manufacture, sale, performance or supply or failure or delay in performance or supply of the Supplies by the Company or on part of the Company’s employees, agents or sub-contractors;
• Any breach by the Company of any of the express or implied terms of the Contract;
• Any use made or resale or on-supply of any of the Supplies or any product incorporating any of the Goods or developed using the Supplies.
• Any acts or omissions of the Company at the Customer’s premises;
• Any statement made or not made or advice given or not given by or on behalf of the Company; or 
• Otherwise under the Contract
   

And the Company hereby excludes to the fullest extent permissible at law all conditions, warranties and stipulations, express (other than those set out in these Conditions or given in accordance with Condition 14) or implied, statutory, customary or otherwise which but for such exclusion, would or might subsist in favour of the Customer. Save as set out in condition 16(ii) the Company’s total liability in contract, tort, (including negligence), breach of statutory duty, misrepresentation or otherwise shall be limited to repairing or replacing Goods or in the case of Services, re-performing the Services or, at the Company’s option, refunding monies already paid in respect of the Supplies.
 

Each of the Company’s employees, agents and subcontractors may rely on and enforce the exclusions and restrictions of liability in Conditions 8, 11, 14, 15 and 16 in that person’s own name and for that person’s own benefit.

 

17. Intellectual property rights
 

The Supplies in this website may be subject to the intellectual and industrial property rights including patents, knowhow, trademarks, copyright, design rights utility rights, database rights and or other rights of third parties. No right or licence is granted to the Customer, except the right to use the Supplies or re-sell the Goods in the Customer’s ordinary course of business. The Company shall have no liability whatsoever in the event of any claim of infringement of any such rights howsoever arising. In particular, without limiting the above, title in any software program forming part of the Goods is reserved to the Company and/or its suppliers. The Customer is responsible for informing itself of the terms of its licence or use and paying any royalty payable. Such programs may be used only with the Goods.
 

The Company owns full copyright in respect of this website and its reproduction in whole or part is prohibited without the Company’s prior written consent.

 

18. Use of personal data
 

“Personal Data” means, in relation to any Customer, or any representative of a Customer who is (in either case) a living individual, any data from which (whether alone or in combination with other information held by the Company) the Company can identify that Customer or that representative, regardless of how and when that data is provided. The Company may process Personal Data for all purposes contemplated in these Conditions or arising in the context of the relationship between the Company and the Customer including:

i. Deciding whether to enter into any contract or arrangement with that Customer. This may include conducting credit reference searches, against a Customer or its representatives and the disclosure of information to the relevant agency as to how that Customer conducts its account and other anti fraud or Identity checks;

ii. Order fulfilment, administration, customer services, profiling the Customer’s purchasing preferences, and to help to review, develop and improve the Company’s business and the goods and services it offers;

iii. Direct marketing of the Company’s products and services and/or of the products and services of other companies in KYE Systems UK Ltd or third parties which the Company believes may be of interest to the Customer or its representatives, whether by post, fax, telephone, email, SMS, MMS or otherwise to the extent that it is lawfully able to do so;

iv. Crime prevention or detection.
 

The processing of the Personal Data may involve:

i. The disclosure of that Personal Data to the Company’s service providers and agents;

ii. The disclosure of that Personal Data to other companies in KYE Systems UK Ltd whose products and services the Company believes may be of interest to that Customer or representative;

iii. The disclosure of that Personal Data to third parties whose products and services the Company believes may be of interest to that Customer or representative;

iv. The transfer of Personal Data outside of the EEA, including to countries whose laws may not provide adequate protection to Personal Data. The Company will only transfer Personal Data outside the EEA to companies who have guaranteed to the Company the same level of protection as that Personal Data would have received in the UK.
 

If, at any time, the Customer or its representatives does not wish his or her Personal Data to be used for any or all of the above purposes, he or she should contact the Marketing Manager, KYE, Unit 4, 131 Beddington Lane, Croydon, CR0 4TD or notify any of the Company’s sales representatives when placing an order by phone.
 

For more information on the Company’s use of personal data please see the Company’s privacy policy on this website.

 

19. Promotions
 

In the event that the Company sends promotional material to the Customer in relation to goods or services available from the Company, these Conditions shall apply to all Supplies purchased from such material.

 

20. Country of origin
 

Unless otherwise confirmed by the Company in writing, nothing in this website is to be taken as representation of the source of origin, manufacturer or production of the Goods or any part of them.

 

21. Collection
 

A Customer wishing to collect Goods directly from the Company must do so within 3 working days of arranging the collection. If Goods are not so collected within the said period, the Company will charge the Customer a re-stocking fee of 30% of the value of the Goods ordered. Proof of Identity will be required when collecting Goods. Payment accepted by credit card only.

 

22. Export
 

Separate Conditions of Supply apply to export transactions and are available on request from the Company’s export department. The Customer is responsible at its own expense for obtaining any licence and complying with any export regulations in force within the United Kingdom and in the country for which the Goods are destined. The Company reserves the right not to supply certain customers or countries and to require from the Customer full details of final destination of the Goods.

 

23. Medical and life support applications
 

The Goods are not designed or authorised for implantation in the body or for use in life support equipment, other medical equipment or systems for any other purpose where the malfunction of the Goods could reasonably be expected to result in personal injury. Customers using the Goods for any such purpose do so at their own risk and agree to indemnify the Company and its suppliers against any and all liability and expense (including costs) resulting from such use.

24. Euro
 

In the event that the UK changes to a single unified European currency (known as the Euro or otherwise), or agrees to the fixing of conversion rates between European Union member states, it will not have the effect of altering any term, or discharging or excusing performance under a Contract.

25. Force majeure
 

The Company shall not be liable to the Customer in any manner or be deemed to be in breach of these Conditions because of any delay in performing or any failure to perform any of the Company’s obligations under this Contract if the delay or failure was due to any cause beyond the Company’s reasonable control (which shall include, but not be limited to government actions, war, fire, explosion, flood, import or export regulations or embargoes, labour disputes or inability to obtain or a delay in obtaining supplies of Goods or labour). The Company may, at its option, delay the performance of, or cancel the whole or any part of a Contract.

26. Recording of communications
 

The Company reserves the right to monitor, intercept or record telephone calls and may monitor or intercept all email or other electronic communications made to its premises for training, security and quality purposes. Customers contacting Genius or quoting Genius part numbers shall have been deemed to have read and accepted this provision.

27. Legal construction
 

All Contracts shall be governed by and interpreted in accordance with English law and the Customer submits to the jurisdiction of the English Courts, but the Company may enforce such Contract in any court of competent jurisdiction.

28. General
 

Any provision of these Conditions of Supply which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the other provisions of these Conditions of Supply and the remainder of such provision shall not be affected. Failure by the Company to enforce or partially enforce any provision of these Conditions of Supply will not be constrained as a waiver of any rights under these Conditions of Supply.
 

The Company shall be entitled, without the consent of or notice to the Customer, to assign the benefit, subject to the burden, of these Conditions and/or any Contract to any company in its group (as defined in section 53(1) of the Companies Act 1989) at any time.
Except as set out in Condition 16, the parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
 

These Conditions supersede all previous issues.
February 2008