TERMS & CONDITIONS OF SALE ("Conditions")
Please read the following Conditions carefully.
By placing an order for a Product you accept and agree to abide by these Conditions.
IMPORTANT NOTICE: IF YOU ARE A 'CONSUMER' (PURCHASING AS AN INDIVIDUAL OUTSIDE THE SCOPE OF YOUR BUSINESS), THEN:
1.1 These Conditions apply to all purchases of goods or products (including, without limitation, hardware and/or software) ("Products") sold through this website ("Site") by us, Digital River Inc., 10380 Bren Road West, Minnetonka, Minnesota 55343, United States (having a place of business at 10 Beechwood House, 10 Windsor Road, Slough, Berkshire United Kingdom, SL1 2EJ) (references to "us", "we" or "our" being construed accordingly) to you, the purchaser (references to "you" or "your" being construed accordingly).
1.2 These Conditions 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 provisions to the contrary are hereby excluded to the fullest extent legally permitted. We reserve the right to vary or alter these Conditions without notice (to the fullest extent permitted under applicable law).
2. OFFER, ACKNOWLEDGMENT AND ACCEPTANCE
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and descriptions made or referred to on this Site are subject to availability, do not constitute an offer and may be withdrawn or revised by us at any time prior to our express acceptance of your order (as described below).
2.2 While we make every effort to ensure that Products appearing on the Site are available, we cannot guarantee that all Products are in stock when you submit your order. We may reject your order (without liability) if we are unable to process or fulfil it. If this is the case, we will duly notify you and refund any prior payment that you have made for such Product.
2.3 An order submitted by you constitutes an offer by you to us to purchase Products on these Conditions.
2.4 All orders placed by you are subject to our subsequent acceptance. Prior to acceptance, an automatic acknowledgement of your order may be generated. This may give you the opportunity to confirm or identify and correct any input errors or mistakes prior to final confirmation. Please note that any such automatic acknowledgement does not constitute our 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 email confirming that we are dispatching your order 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 Product dispatch. 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 Conditions for your own records.
3. YOUR REPRESENTATIONS
3.1 You represent that all information provided by you when ordering a Product is up-to-date and accurate in all material respects and is sufficient for us to fulfil your Product order. You also represent that you are 18 years or over.
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 unauthorised access.
3.3 Any warranties given in relation to these Conditions only extend to you on the understanding that you are a user and not a reseller of the Products.
3.4 No warranty, commitment or any other obligation should ever be assumed by you on our behalf or a Product manufacturer's, licensor's or supplier's behalf without our express prior written consent.
4. PRICE AND TERMS OF PAYMENT
NOTE: WE CANNOT CONFIRM PRICES PRIOR TO ACCEPTANCE OF YOUR ORDER
4.1 The prices payable for the Products are those in effect at the time of dispatch, 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 of your order.
4.2 Prices (unless stated otherwise) are in the currency quoted on the Site and remain valid for 30 days.
4.3 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, labour 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 fulfilment of the order, you acknowledge that the Product will be provided in accordance with such revised description or corrected price.
4.4 The places that we deliver to are listed on the Site ("Territory"). Unless otherwise specified, prices quoted are
4.4.1 exclusive of the costs of shipping or carriage to the agreed place of delivery within the Territory (charges for which are stated on the Site); and
4.4.2 exclusive of VAT and any other tax or duty which (where applicable) must be added to the price payable;
You agree to pay for shipping or carriage of Products as such costs are specified by us at the point of purchase.
4.5 Payment shall be made by such methods as are indicated on the Site, prior to delivery (and not by any other means unless we have given our prior agreement).
4.6 Save as expressly provided elsewhere in these Conditions, payment may be taken in full notwithstanding any claim for short delivery or Product defects.
4.7 We will charge credit or debit cards on dispatch of the Product. We reserve the right to verify credit or debit card payments prior to Acceptance.
4.8 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 to that particular Product, provided that 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.
4.9 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.
4.10 Any extension of credit allowed to you may be changed or withdrawn at any time. Interest shall be chargeable on overdue amounts accruing on a daily basis at the maximum amount permitted under applicable law from the due date for payment until our receipt of the full amount (whether before or after judgement). You shall indemnify us on demand against any out of pocket expenses incurred in relation to recovery of any overdue amounts.
6. DELIVERY AND RISK
6.1 Delivery timescales/dates specified on the Site, in any order acknowledgement, acceptance or elsewhere are estimates only. While we endeavour to meet such timescales or dates, we do not undertake to dispatch and/or deliver Products 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 our acceptance ("Delivery Address"). You are responsible for checking the Delivery Address on any acknowledgement or acceptance we provide and will notify us without delay of errors or omissions. The costs incurred as a consequence of any changes you make to the delivery address after you submit an order shall be borne by you.
6.3 If you refuse or fail to take delivery of Products tendered in accordance with these Conditions, any risk of loss or damage to the Products shall nonetheless pass and without prejudice to any other rights or remedies we have (for breach of contract or otherwise):-
7. REJECTION, DAMAGE OR LOSS IN TRANSIT
7.1 You are responsible for checking Products upon delivery and verifying that they are in satisfactory condition, in accordance with their specification and complete.
7.2 You may return purchased Products in accordance with theses Conditions or any applicable Returns Policy referred to on the Site.
7.3 Without prejudice to the applicable Returns Policy, your rights as a consumer set out above or any mandatory applicable laws that cannot be excluded by contract, we shall not be liable and you shall not be entitled to reject the Products, except in relation to:
8.1 Where a Product or Products supplied consist of or include software ("Software"), this Software is licensed, not sold, by us or by the relevant licensor/owner subject to the relevant end-user license agreement or other licence terms included with Software ("License Terms") and/or the Product. In addition:
9. LIABILITY LIMITATION
9.1 IN RELATION TO PRODUCTS (OR PARTS OF PRODUCTS) MANUFACTURED OR PRODUCED BY THIRD PARTY MANUFACTURER'S, LICENSORS OR SUPPLIERS, THE TERMS OF ANY SEPARATE THIRD PARTY GUARANTEE OR WARRANTY FOR SUCH PRODUCT (OR RELEVANT PART) SHALL APPLY TO THE LIABILITY LIMITATION SET OUT BELOW (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW).
9.2 TO THE MAXIMUM EXTENT LEGALLY PERMITTED, OUR AGGREGATE LIABILITY (WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION (EXCEPT, IF FRAUDULENT) OR OTHERWISE) SHALL IN NO CIRCUMSTANCES EXCEED THE COST OF THE DEFECTIVE, DAMAGED OR UNDELIVERED PRODUCTS (DETERMINED BY NET PRICE INVOICED/CHARGED TO YOU) IN RESPECT OF ANY SINGLE OCCURRENCE OR SERIES OF OCCURRENCES. EVEN IF ADVISED OF THE SAME, WE SHALL NOT BE LIABLE FOR ANY:
9.2.1 SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES; OR
9.2.2 INABILITY TO MAKE PRODUCT ORDERS OR LOSS OF INCOME, REVENUE, PROFITS, CONTRACTS, DATA, GOODWILL OR SAVINGS.
9.3 SUBJECT TO ANY EXPRESS PROVISIONS TO THE CONTRARY SET OUT IN THESE CONDITIONS, ALL TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE), IN RELATION TO THE PRODUCTS ARE HEREBY EXCLUDED. WE SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHETHER RESULTING FROM DEFECTIVE MATERIAL, FAULTY WORKMANSHIP, OR OTHERWISE HOWSOEVER ARISING AND WHETHER OR NOT CAUSED BY OUR (OR OUR EMPLOYEES' OR AGENTS' NEGLIGENCE) EXCEPT TO THE EXTENT THAT APPLICABLE LAW PROHIBITS EXCLUSIONS OR LIMITATIONS OF LIABILITY FOR INTENTIONAL TORTS OR GROSS NEGLIGENCE OR OTHER 'WRONGS'.
9.4 WE DO NOT EXCLUDE LIABILITY FOR (1) DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE (OR THAT OF OUR EMPLOYEES OR AUTHORISED REPRESENTATIVES) OR (2) FRAUD.
THE FOLLOWING ADDTIONAL CONDITIONS APPLY TO 'CONSUMERS' (PURCHASING PRODUCTS OTHERWISE THAN IN THE COURSE OF A BUSINESS):
9.5 NOTHING IN THESE CONDITIONS SHALL OR BE CONSTRUED AS LIMITING OR EXCLUDING OUR LIABILITY OR A PRODUCT MANUFACTURER'S, LICENSOR'S OR SUPPLIER'S LIABILITY TO YOU, WHERE UNDER MANDATORY LAWS APPLICABLE IN YOUR COUNTRY, SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED BY CONTRACT.
9.6 THESE TERMS AND CONDITIONS DO NOT AFFECT OR PREJUDICE YOUR STATUTORY RIGHTS UNDER APPLICABLE CONSUMER LAWS. YOU MAY ASSERT SUCH RIGHTS AT YOUR DISCRETION.
10. RETENTION OF TITLE
10.1 Title to the Products ordered pursuant to any one order shall not pass to you until payment in full of the price in respect of such order (including any interest or other payments due in respect of those Products). Until payment has been made in full for any Products, you shall have possession of those Products as our agent and shall (subject to the provisions of Condition 10.2 below) store the Products in such a way as to enable them to be readily identified as our property, and keep proper and accurate records to enable us to distinguish Products for which payment has been made in full from those Products for which payment is outstanding.
10.2 If you sell any Products, to the fullest extent permitted by law, you shall hold (on a fiduciary basis) all proceeds of such sales in trust for us and in a separate account. You undertake immediately upon being so requested by us to assign to us all rights in respect of those proceeds and that separate account and/or all rights and claims which you may have against any customers arising from such sales until payment is made in full as aforesaid and not to assign such rights and claims to any third party without our prior written consent.
10.3 We reserve the right (subject to applicable law) to repossess any Products in respect of which payment is overdue, declined or lapses and thereafter to re-sell the same and for this purpose, you hereby grant us an irrevocable right and licence to our servants and agents to enter upon your premises during normal business hours. The provisions of this Condition shall continue in force notwithstanding termination of the contract howsoever caused.
11. THIRD PARTY RIGHTS
11.1 You shall indemnify us against any and all liabilities, claims and costs incurred by or made against us as a direct or indirect result of the carrying out of any work required to be done on or to the Products in accordance with your requirements or specifications or any end-user involving any infringement or alleged infringement of any proprietary rights of any third party.
11.2 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 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.
12.1 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.
12.2 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.) 12.3 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:
13. CONSENTS, CUSTOMS DUTIES & EXPORT
13.1 If any licence 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 licence or consent at your own expense and if necessary produce evidence to us on demand. Failure so to do 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.
13.2 Products licensed or sold to you under these Conditions 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.
13.3 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.
14.1 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:
16.1 You shall not assign, transfer, charge or make over or purport to assign transfer charge to make over your rights under these Conditions
16.2 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 labour 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.
16.3 These Conditions supersede and cancel all previous contracts, agreements and working arrangements whether oral or written, express or implied, between us.
16.4 No relaxation, forbearance, delay or indulgence by either you or us in enforcing any of these Conditions or the granting of time by either party to the other shall prejudice or restrict such rights and powers.
16.5 No waiver of any term or condition of these Conditions shall be effective unless made in writing and signed by us. The waiver of any breach of any Condition shall not be construed as a waiver of any subsequent breach or condition.
16.6 If for any reason we determine or a court of competent jurisdiction finds that any provision or portion of these Conditions to be illegal, unenforceable, or invalid under applicable law in a particular jurisdiction:
17. GOVERNING LAW AND JURISDICTION
17.1 The construction validity and performance of these Conditions shall be governed by English Law and the parties submit to the exclusive jurisdiction of the English Courts in the event of legal proceedings arising from any dispute. However, this will not affect your statutory rights if you are a consumer and applicable consumer law requires application of another law (such as the law of your country of residence).
17.2 The language of any dispute resolution procedure or any proceedings will be English (except where another language is required under mandatory applicable law).
VAT is not reflected in prices above and may be added for certain countries.
The exact details will be displayed before order completion.