1. Definitions and interpretation
1.1 In these Conditions the following definitions apply:
- “App” means the Thyngs mobile application;
- “Business Day” means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;
- “Conditions” means these terms and conditions of sale;
- “Confidential Information” means any commercial, financial or technical information, information relating to the Goods, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
- “Contract” means the agreement between us and you for the sale and purchase of Goods incorporating these Conditions and the Order;
- “Delivery Address” has the meaning given to it in clause 3(b);
- “Force Majeure” means an event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required for performance of the Contract; strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving you or its suppliers workforce, but excluding your inability to pay or circumstances resulting in your inability to pay;
- “Goods” means the goods and related accessories, spare parts and documentation set out in the Order and to be supplied by us to you;
- “Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case:
- whether registered or not
- including any applications to protect or register such rights
- including all renewals and extensions of such rights or applications
- whether vested, contingent or future
- to which the relevant party is or may be entitled, and
- in whichever part of the world existing;
- “Order” means an order for the Goods placed by you with us on the Website or the App;
- “Price” has the meaning given in clause 4.1;
- “Us” or “We” means us Thyngs Limited, company number 10049849, whose registered office is Floor 2, St James Mill, Whitefriars, Norwich, United Kingdom, NR3 1TN;
- “Website” means http://thyngs.net;
- “You” means the person who purchases the Goods from us and whose details are set out in the Order.
1.2 In these Conditions, unless the context requires otherwise:
(a) any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
(b) a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
(c) a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
(d) a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
(e) words in the singular include the plural and vice versa;
(f) any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
(g) a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time; and
(h) a reference to legislation includes all subordinate legislation made under that legislation.
2. These Conditions
2.1 These Conditions apply to and form part of the Contract between us and you. They supersede any previously issued terms and conditions of purchase or supply.
2.2 Marketing and other promotional material relating to the Goods are illustrative only and do not form part of the Contract.
3.1 No terms or conditions endorsed on, delivered with, or contained in your purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that we otherwise agree in writing.
3.2 No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by Neil Garner, CEO, on our behalf.
3.3 Each Order from you to us shall be an offer to purchase Goods subject to these Conditions, and shall include the details that we require to fulfil the Order, including but not limited to the following information:
(a) the quantity and type of Goods;
(b) the address for delivery of the Goods (Delivery Address);
(c) the method of delivery where applicable; and
(d) your preferred payment method and details for us to take payment of the Price.
3.4 An Order may be withdrawn or amended by you at any time before acceptance by us.
3.5 We may accept or reject an Order at our discretion. If we are unable to accept an Order, we shall notify you as soon as reasonably practicable. An Order shall not be accepted, and no binding obligation to supply any Goods shall arise, until we give you written acceptance of the Order. Rejection by us of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by you.
3.6 We may issue quotations to you from time to time. Quotations are invitations to treat only. They are not an offer to supply Goods and are incapable of being accepted by you.
4. Price & payments
4.1 The price for the Goods shall be as set out on the Website or App, or in default of such provision, shall be calculated in accordance with our scale of charges in force from time to time (Price).
4.2 The Prices are exclusive of packaging, delivery, and insurance which shall be charged in addition at our standard rates.
4.3 You shall pay any applicable VAT to us as part of the Price.
4.4 We will debit the Price from you upon accepting the Order using the details that you give us when placing the Order.
4.5 We provide a payment process using services provided by our payment partners. These services comply with the Payment Card Industry Data Security Standard (PCI DSS), ensuring that any personal card data is properly stored, processed and deleted when no longer needed.
4.6 Any payments processed by our payment partners are made directly to your bank account and we are not involved in the transaction in any way. We accept no responsibility or liability for any problems experienced with the payment, including data breaches or missing payments.
4.7 Our payment partners and/or your acquiring bank will charge you a fee for processing the payment. We take no part in and charge no fees for processing card payments.
4.8 If a payment is collected using our payment process we may charge you a transaction fee for providing the service in lieu or in addition to any monthly service charges.
5.1 We shall deliver the Goods to the Delivery Address by the method that you select when placing the Order.
5.2 The Goods shall be deemed delivered on arrival at the Delivery Address.
5.3 The Goods may be delivered by instalments if specified in the Order. Any delay in delivery of or defect in an instalment shall not entitle you to cancel any other instalment.
5.4 Delivery of the Goods may be accompanied by a delivery note stating:
(a) the date of the Order;
(b) the product numbers, type and quantity of Goods in the consignment; and
(c) any special handling instructions.
5.5 Time of delivery is not of the essence. We shall use our reasonable endeavours to meet delivery dates but such dates are approximate only.
5.6 We shall not be liable for any delay in or failure of delivery caused by Force Majeure.
6. Risk and title
Risk and title to the Goods shall pass to you once we have received payment in full and cleared funds for the Goods.
7.1 We warrant to you that the Goods shall:
(a) conform in all material respects to the Order; and
(b) be free from material defects in design, material and workmanship.
7.2 We shall, at our option, repair, replace, or refund the Price of, any Goods that do not comply with clause 7.1, provided that you:
(a) provide to us a written notice with sufficient information as to the nature and extent of the defects and the uses to which the Goods had been put prior to the defect arising; and
(b) return the defective Goods to us at our expense.
7.3 The provisions of these Conditions, including the warranties set out in clause 7.1, shall apply to any Goods that are repaired or replaced with effect from Delivery of the repaired or replaced Goods.
7.4 We shall not be liable for any failure of the Goods to comply with clause 7.1:
(a) where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise in the normal course of use of the Goods;
(b) to the extent caused by your failure to comply with our instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;
(c) to the extent caused by us following any specification or requirement of you in relation to the Goods;
(d) where you modify any Goods; or
(e) where you use any of the Goods after notifying us that they do not comply with clause 7.1.
7.5 Except as set out in this clause 7:
(a) we give no warranties and make no representations in relation to the Goods;
(b) shall have no liability for their failure to comply with the warranty in clause 7.1; and
(c) all warranties and conditions (including the conditions implied by ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
8. Compliance with laws
8.1 Each party shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract, including complying with their obligations under the Bribery Act 2010 and Modern Slavery Act 2015 as appropriate.
8.2 Each party shall immediately notify the other as soon as it becomes aware of a breach or possible breach of any of the requirements in this clause 8.
You shall indemnify us from and against any losses, damages, liability, costs (including legal fees) and expenses which we may suffer or incur directly or indirectly from your breach of any of your obligations under the Contract.
10. Limitation of liability
10.1 The extent of the parties’ liability under or in connection with each Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 10.
10.2 Subject to clause 10.5, our total liability under the Contract shall not exceed the total value of the Prices.
10.3 Subject to clause 10.5, we shall not be liable for consequential, indirect or special losses.
10.4 Subject to clause 10.5, we shall not be liable for any of the following (whether direct or indirect):
(a) loss of profit;
(b) loss of data;
(c) loss of use;
(d) loss of production;
(e) loss of contract;
(f) loss of opportunity;
(g) loss of savings, discount or rebate (whether actual or anticipated);
(h) harm to reputation or loss of goodwill.
10.5 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other losses which cannot be excluded or limited by applicable law.
11. Intellectual property
11.1 We grant you a non-exclusive, non-assignable, immediately revocable licence to use the Intellectual Property Rights in the Goods for the sole purpose of enabling you to use the Goods as envisaged by the Contract (“Licence”).
11.2 If any claim that use or possession of the Goods infringes the Intellectual Property Rights of any third party, is made or is reasonably likely to be made, we may at our option:
(a) procure for you the right to continue using and possessing the relevant Goods; or
(b) modify or replace the infringing part of the Goods so as to avoid the infringement or alleged infringement.
11.3 Except for the Licence as expressly granted above, you shall not acquire in any way, any title, rights of ownership, or Intellectual Property Rights of whatever nature in the same or in the Goods and no Intellectual Property Rights of either party are transferred or licensed as a result of any Contract.
11.4 You acknowledge and understand that the Intellectual Property Rights that are licenced to you contain confidential and proprietary information and you shall not:
(a) attempt to or reproduce, modify, adapt, edit, combine, or create derivative products based on the Goods; or
(b) conceal, modify, remove, destroy or alter in any way any proprietary markings that we put on the Goods or any related materials and documentation.
12. Force Majeure
12.1 A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it promptly notifies the other of the Force Majeure event and its expected duration and uses reasonable endeavours to minimise the effects of that event.
12.2 If, due to Force Majeure, a party:
(a) is or shall be unable to perform a material obligation; or
(b) is delayed in or prevented from performing its obligations for a continuous period exceeding 14 days or total of more than 30 days in any consecutive period of 60 days;
the other party may, within 30 days, terminate the Contract on immediate notice the parties shall, within 30 days, renegotiate the Contract to achieve, as nearly as possible, the original commercial intent.
13. Dispute resolution
13.1 In the event of a dispute arising out of in connection with each Contract, the parties shall use all reasonable endeavours to reach a negotiated resolution within 7 days of either party serving a notice in writing on the other party that a dispute has arisen. Following service of a notice, the chief executives of the parties shall meet to discuss the dispute and attempt to resolve it.
13.2 If the dispute has not been resolved within 7 days of the chief executives meeting under clause 13.1, the parties shall be free to commence formal legal proceedings.
14.1 Any notice or other communication given by a party under these Conditions shall:
(a) be in writing and in English;
(b) be signed by, or on behalf of, the party giving it; and
(c) be sent to the relevant party at the address set out in the Contract
14.2 Notices may be given, and are deemed received:
(a) by hand: on receipt of a signature at the time of delivery;
(b) by post: at 9.00 am on the second Business Day after posting;
(c) by international post: at 9.00 am on the fourth Business Day after posting; or
(d) by email: on receipt of a delivery receipt email from the correct address.
14.3 Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 14.1 and shall be effective:
(a) on the date specified in the notice as being the date of such change; or
(b) if no date is so specified, 1 Business Days after the notice is deemed to be received.
14.4 This clause 14 does not apply to notices given in legal proceedings or arbitration.
15. Cumulative remedies
The rights and remedies provided in the Contract for us only are cumulative and not exclusive of any rights and remedies provided by law.
16. Further assurance
You shall at our request, and at your own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
17. Entire agreement
17.1 The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
17.2 Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract. Nothing in these Conditions purports to limit or exclude any liability for fraud.
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and is duly signed or executed by Neil Garner, CEO, of us.
You may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without our prior written consent, such consent not to be unreasonably withheld or delayed.
20. Equitable relief
You recognise that any breach or threatened breach of the Contract may cause us irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to us, you acknowledge and agree that we are entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
If any provision of the Contract or Conditions (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract or Conditions shall not be affected.
No failure, delay or omission by us in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
23. Conflicts within contract
If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail.
24. Costs and expenses
You shall pay your own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).
25. Third party rights
A person who is not a party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
26. Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).