Merlin Software Terms and Conditions of Trading

1. Definitions
1. "Business Customer" means a customer who is not a Consumer.
2. "Consumer" means an individual who is not acting for the purposes of his or her business or profession.
3. "Merlin Software" means Smart POS Solutions Ltd, trading as Merlin Software also referred to as "we" or "us" in these terms and conditions.
4. "Catalogue" means the catalogue of products and services offered by Merlin Software.
5. "Force Majeure" means any cause affecting the performance by Merlin Software of its obligations arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control including (but not limited to) governmental regulations, fire, flood or any disaster or industrial dispute affecting a third party.
6. "Normal Working Hours" means 9 am to 5 pm on a Working Day.
7. "Working days" means Monday to Friday, excluding Bank or other Public holidays. Please note that special terms apply to Consumers, which prevail over the other provisions of these terms and conditions. Customers who are Consumers are referred to Clause 12.
   
   
2. Orders
   
1. All contracts of sale made by Merlin Software shall be deemed to incorporate these terms and conditions, which shall prevail over any other terms from the party ("the Customer") with whom Merlin Software is dealing. Cancellation of orders by business to business customers is not accepted as many orders are despatched on the same day the order is placed. Cancellation of orders by Consumers will be accepted in accordance with the Consumer Protection (Distance Selling) Regulations 2000. Nothing in these terms and conditions is intended to impinge upon a Consumer's statutory or contractual rights to reject faulty goods.
2. All orders are subject to acceptance and to availability of the goods ordered: Merlin Software is entitled to refuse any order placed by you.
3. You undertake that: (a) all details you provide to us for the purpose of purchasing goods or services offered on our web site are correct, and (b) the credit or debit card you use to make a purchase from us is your own card or your company's card, that you are authorised to use it, and that there are sufficient funds or credit facilities to cover the cost of any goods or services you order from us. We reserve the right to obtain validation of your credit or debit card details before providing you with any goods or services.
4. All goods offered on the Merlin Software website are subject to availability. If an item you have ordered is out of stock before your order is accepted, we will notify you as soon as possible.
   
   
3. Prices
1. Goods and services, together with VAT, are invoiced at the price prevailing at time of order.
2. Merlin Software reserves the right to modify the prices from time to time.
3. Our website is updated on a regular basis. From time to time our business may run special or local promotions which will not be reflected on our website or we may offer special discounts online that are not available in our normal business.
   
   
4. Delivery, Title and Risk
1. Merlin Software shall use reasonable endeavours to despatch goods by the date agreed with the customer, but does not accept liability for failure to deliver within the stated time where this is caused by circumstances beyond our reasonable control, such as delays caused by delivery companies or manufacturer lead times. If a delay is likely, we shall contact the customer and advise of the delay. A customer who is a Consumer shall be entitled to cancel an order when advised of a delay if the revised delivery date is not acceptable.
2. In the case of a Business Customer, if Merlin Software is unable to deliver the goods within 30 days of the agreed delivery date, the Customer will, as its sole remedy, be entitled to cancel the order and require any monies paid to Merlin Software in respect of that order to be refunded. In order to cancel, the Customer must send written notice of cancellation to Merlin Software after the above date but before delivery of the goods or notification from Merlin Software that the goods are ready for delivery. This Clause does not apply to Consumers.
3. In the case of Business Customers, Merlin Software does not accept liability for shortages or damage to deliveries unless the Customer notifies Merlin Software of the shortage or damage in writing within 48 hours of receipt of the delivery. Consumers should notify shortages or damage within a reasonable period of becoming aware.
4. Business Customers are required to be able to accept the goods when they are ready for delivery within Normal Working Hours.
5. Delivery is deemed to take place when the goods are delivered to the Customer's nominated address, whereupon the risks of loss, breakage and all damage and all other risks shall pass to the Customer.
6. Title in the goods does not pass to the Customer until payment is received in full by Merlin Software.
7. If the Customer cannot accept delivery, Merlin Software may at its option:
   (a) store and insure the goods at the Customer's expense and risk or
   (b) sell the goods at the best price reasonably obtainable and (after deducting reasonable storage insurance and selling costs) pay to the Customer any excess over the sale price or charge the Customer for any shortfall or
   (c) re-arrange delivery provided that Merlin Software may charge the Customer for the additional delivery costs incurred.
8. The Customer may request a Proof of Delivery, provided that this request is made in writing within 1 month of the date of delivery and Merlin Software shall use reasonable endeavours to provide such proof. Thereafter, delivery shall be deemed to have been successfully completed.
9. Upon delivery of the goods, the Customer will be asked to sign a Proof of Delivery to acknowledge safe receipt. It is the responsibility of the Customer to ensure that the number of packages delivered corresponds with the number stated on the delivery note. Where a discrepancy occurs or where there is evident damage to the packaging, this should be noted on the Proof of Delivery. Merlin Software shall not be liable for discrepancies or damage evident on delivery where the Customer accepts delivery and signs the Proof of Delivery without amendment.
10. Delivery costs are as follows:
    Up to 10Kg: £9.95
    Up to 20KG: £12.00
    Up to 50Kg: £18.95
    
    
5. Payment
1. Payment is due on shipment unless a Customer has been approved for credit. Merlin Software's standard credit terms require payment within 30 days from the date of the invoice, except in the case of transactions where different terms are agreed in writing.
2. If payment is not made on the due date, Merlin Software will be entitled to charge interest daily on the outstanding balance at the rate of 3% above Barclays Bank PLC base lending rate from time to time.
   
   
6. Product specifications
1. Merlin Software makes every effort to supply the goods as advertised but reserves the right to supply the goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer.
2. If Merlin Software cannot supply the goods ordered by the Customer, Merlin Software reserves the right to offer goods of equal or superior quality at no extra cost. In such a case, if the Customer does not wish to accept the alternative goods offered, he or she may cancel the order and require the refund of any money paid to Merlin Software in respect of that order, including carriage charges. This shall be the sole remedy of the Customer in these circumstances.
   
   
7. Trade names and Trade Marks
1. Trade names and marks (other than Merlin Software's) are not always indications of the actual manufacturer of a particular product and may rather be indicative of general use systems and machines associated with such products.
2. In the case of component purchases, Customers requiring a particular brand of product should, before placing an order, check with Merlin Software the identity of the manufacturer of component it is proposed to purchase.
   
   
8. Warranties and Returns
   Please note that special terms apply to Consumers who wish to return goods, which prevail over the provisions of this Clause 8. Customers who are Consumers are referred to Clause 12.
1. Merlin Software is committed to providing our customers with the highest quality products and service. However, on rare occasions, products may be found to be faulty or defective. In such cases we offer the returns facilities described below.
2. Unless otherwise stated in the manufacturer's documentation, all goods delivered to a UK mainland address carry a 12-month manufacturer's warranty.
3. If you purchase goods in the course of your business, the following provisions of this Clause shall apply. Other than the express provisions set out in these terms and conditions, all other terms and the implied terms or warranties relating to the supply of goods are excluded to the fullest extent permitted by law. Goods are not tested or sold as being fit for any particular application or for use under specific conditions, unless expressly agreed in writing.
4. If you purchase services in the course of your business, the following provisions of this Clause shall apply. Merlin Software shall use its skill and expertise to carry out any contracted works (the "Service(s)") to a standard equivalent to that of a competent computer professional, and shall warrant our work as free from defects, for a period of 30 days after completion. In particular, we cannot be held responsible for any fault or damage not caused by Merlin Software service engineers or its contracted agents. In the event of a claim arising relating to the level of skill and judgement applied in the course of providing Services, Merlin Software reserves at its sole discretion the right to appoint an independent expert in the field to appraise the work carried out in the execution of the Service(s). Additionally, Merlin Software cannot be held responsible for equipment installed or configured when the equipment has subsequently been altered or configured by persons other than Merlin Software. Except as set out here, all other express or implied terms or warranties relating to the Services are excluded to the fullest extent permitted by law.
5. Subject to the right of Consumers to return goods for refund under The Consumer Protection (Distance Selling) Regulations 2000 (see Clause 12), Merlin Software does not sell products on a trial basis. Customers are strongly advised to check suitability and specifications of products before ordering. In some instances, Customers may benefit from special price discounts issued by a manufacturer specifically for their benefit. Such goods are not returnable to the manufacturer and may not be sold to other customers. Accordingly, orders for such goods can not be cancelled and Merlin Software can only accept a return of such Goods where they prove to be defective and the Goods are returned for repair or replacement.
6. In the event that Merlin Software, at its discretion (unless the Consumer Protection (Distance Selling) Regulations 2000 apply, see Clause 12), agrees to accept the return for credit of unwanted products, the goods must be returned with Merlin Software's prior written agreement within 14 days of delivery. The goods must be unopened and in perfect re-saleable condition. All goods returned in these circumstances (except where the Consumer Protection (Distance Selling) Regulations 2000 apply, see Clause 12) will be subject to a handling fee of 15% of Merlin Software's sale price for the goods, or £20, whichever is the greater.
7. Subject to testing to verify any alleged fault, we will accept the return of defective goods for full refund or replacement at our option, if, but only if, the goods are returned within 14 days of delivery. Consumers who wish to return defective products are not obliged to follow the processes set out below, but are recommended to do so as this helps us to provide a more efficient returns service.
   a. Merlin Software's technical support staff or Customer Support staff, as appropriate, will advise you of which method of delivery to use to return the products. Depending on the nature of the product purchased, we will either arrange a courier collection, or request that you return the product directly to us. If the goods are found on inspection to be defective, the cost of returning the item will be refunded to you. Authorised product returns must be sent to: Merlin Software, Barnsley BIC, Innovation Way, Barnsley, S75 1JL.
   b. Merlin Software offers a "no charge" collection, repair and delivery service (on the UK mainland only) for hardware which is shown to be faulty provided that the fault is reported within 14 days of delivery. If we have arranged for a courier collection of your product, we are unable to specify the collection time, and it is your responsibility to ensure that someone will be present at the collection address when the courier arrives.
   c. All returned goods (except those returned under Clause 12) must be accompanied by Merlin Software's Returns Authorisation number ('RMA Number') which can be obtained by contacting Customer Support on 01226 202011. Returned goods will not be accepted without an RMA Number. Do not write directly on the manufacturer's packaging. Please write the RMA number on the address label provided with the Returns Authorisation and attach it to the returned package. Any defacement of the manufacturer's packaging or damage caused by inadequate packaging may result in the rejection of the return or an additional restocking fee, at Merlin Software's sole discretion.
   d. Merlin Software cannot accept liability for packages damaged during transit. It is the Customer's responsibility to wrap the product adequately to prevent damage.
   e. Proof of postage is not proof of delivery and you are therefore strongly advised to send your package by recorded delivery, registered post or courier, and to insure the goods for their full value.
   f. On receipt of the returned product, we will test it to identify the fault you have notified to us.
   g. If following the testing process, the product is found to be in good working order without defect, we will return the product to you, and the carriage costs of this return will be your responsibility. Please note that if you have, in the meantime, required us to provide you with a replacement product before completion of the testing process, you will have to pay for this product also. This Clause does not apply to Consumers returning goods pursuant to Clause 12.
   h. Unless otherwise stated in the manufacturer's documentation, all goods delivered to a UK mainland address carry a 12-month manufacturer's warranty. Customers who wish to make a warranty claim must comply with the manufacturer's instructions and warranty procedure. In order to resolve your problem as quickly as possible, we may refer you to the product manufacturer who will deal directly with the return. In these instances, we will provide you with the contact information for the relevant manufacturer. If you are a consumer, this does not affect your statutory rights.
   i. This warranty shall not apply if the goods have been worked upon, altered or damaged in any way by the Customer or its employees or agents, or to goods not used in accordance with the manufacturer's instructions.
   j. No software on which seals have been broken can be returned for credit. If any software discs are faulty, the manufacturer will replace them. If you are a consumer this does not affect your statutory rights. Please note Software Licences are non returnable unless the software is materially non-compliant with its specification.
   k. Some manufacturers require goods to be returned within 14 days or less in order to secure refund. In such instances the manufacturer's time limit will apply and therefore Merlin Software will only accept a return within 14 days of purchase or the manufacturer's time limit, if that limit is less than 14 days this is clearly indicated on the particular product. We can only accept the return of a defective product that does not meet the description, if they are returned to us within 14 days. Beyond that period you will be deemed to have accepted the goods and you must therefore check the goods promptly on receipt.
   
   
9. Merlin Software's liability
1. In its dealings with Business Customers, Merlin Software shall under no circumstances be liable for any consequential or indirect damage or loss, however caused, including (but not restricted to) loss of business or profits, loss of goodwill, damage to trading relationships loss of data and other financial loss. ("Financial loss" in this sense does not refer to the price you have paid for the goods, which we may be liable to refund to you, in whole or in part, if the goods are faulty or do not comply with their description). Merlin Software's liability in respect of all other losses shall be limited to the invoiced amount of the relevant order.
2. Nothing in this agreement shall limit Merlin Software's liability for death or personal injury caused by its negligence.
3. The Software and the Hardware cannot be tested in every possible combination or operating environment and Merlin Software does not warrant that the Software or Hardware will be uninterrupted and error free.
4. The Purchaser acknowledges that he is responsible for selection of both the Hardware and Software sold under this Agreement and for ensuring that it meets the Purchaser's requirements.
   
   
10. Health and Safety
1. Merlin Software confirms that the goods it supplies as a distributor do not present a hazard to health and safety
   (a) when properly used for the purpose for which they are designed; and
   (b) if the Customer takes reasonable and normal precautions in their use.
   
   
11. Force Majeure
1. Where, in spite of its reasonable efforts, Merlin Software is unable to perform an obligation due to circumstances beyond its reasonable control, it shall not be deemed to be in breach of its contract with the Customer.
   
   
12. The Consumer Protection (Distance Selling) Regulations 2000
1. Contracts for the purchase of goods by a Customer not acting in the course of a business and made over the telephone or through the Merlin Software website, or by mail order, are, with the exception of certain excepted contracts, subject to The Consumer Protection (Distance Selling) Regulations 2000 ('the Regulations').
2. If the Regulations apply, Customers may cancel goods purchased from Merlin Software by sending a written notice of cancellation by post or hand delivery addressed to Customer Services at Merlin Software, Barnsley BIC, Innovation Way, Barnsley, S75 1JL, or by fax to 01226 293658.
3. The notice of cancellation must be delivered within 7 working days of the day after date of delivery of the goods.
4. The Customer will be responsible for the cost of returning the goods if he or she exercises this right of cancellation under the Regulations. If the Customer does not actually return the goods to Merlin Software, the Customer is under a duty to make the goods available for collection at the Customer's expense from the address to which they were delivered.
5. The Customer is under a duty to retain possession of the goods whilst awaiting return to Merlin Software and to take reasonable care of them during this period. The Customer will be liable for any loss of or damage to the goods if he or she fails to comply with this obligation.
   
   
13. Errors and Omissions
1. Merlin Software makes every effort to ensure that all prices and descriptions quoted on its website are correct and accurate. However, the frenetic tempo of e-commerce makes it inevitable that mistakes will occasionally occur. In the case of a manifest error or omission, Merlin Software will be entitled to rescind the contract, notwithstanding that it has already accepted the Customer's order and/or received payment from the Customer. Merlin Software's liability in that event will be limited to the return of any money the Customer has paid in respect of the order. In the case of a manifest error in relation to price, the Customer will be entitled to purchase the goods by paying the difference between the quoted price and the correct price, as confirmed in writing by Merlin Software after the manifest error has been discovered.
2. A 'manifest error', as the term is used in sub-paragraph (1) above, means, in relation to an incorrect price, a price quoted in error by Merlin Software which is more than 10% less than the price that would have been quoted had the mistake not been made.
   
   
14. WEEE Regulations
    For all Goods sold in the UK which fall under the WEEE Regulations, the Business Customer shall ensure they follow the Producer (manufacturer) directions for disposal and recycling thereof. Merlin Software shall not be responsible for any costs thereof. Such directions can be found either accompanying the Goods or on the manufacturers' website. The household user (Consumer) is required to log on to http://www.recycle-more.co.uk. for details of their nearest disposal and recycle operation in the UK and agrees to return all Goods as directed on the site and in accordance with the Regulations. Merlin Software does not have a sales office or approved distributor in Ireland. Instead, Merlin Software products are sold directly to Business Customers in Ireland from sales officers in other Member States. Selling products directly to an end-user in another Member State is known as 'distance selling'. The WEEE Directive and Member State WEEE Regulations state that Merlin Software is not responsible for WEEE arising from distance sales of business products directly to the business customer in other Member States. Instead, it is the business customers' responsibility to ensure that products which they buy through distance selling arrangements are managed in an environmentally responsible manner at the end of life and in accordance with the WEEE Regulations. In purchasing such products from Merlin Software the Business Customer agrees to comply with these Regulations and, in so doing, the Business Customer agrees to register with the WEEE Registry in Ireland.
    
    
15. Intellectual Property
1. All intellectual property rights in the Software shall remain with us in perpetuity and we hereby grant the Purchaser an irrevocable non-exclusive licence to use the Software for the purpose of their business in accordance with the terms of this Agreement.
2. The Purchaser agrees not to transfer or assign the benefit of this licence to any third party or to copy or to attempt to copy the Software or in any other way to use or to enable any third party to use or benefit from the Software without the prior written consent of Merlin Software.
3. The Purchaser agrees not to alter add to or otherwise tamper with the Software in any way or to use it on any hardware other than in accordance with the recommendations and agreement of Merlin Software.
   
   
16. General
1. Nothing in these terms and conditions affects your statutory rights as a Consumer.
2. If any provision in this Agreement is held to be invalid or unenforceable, it shall be deemed severed from the Agreement and this shall not affect the validity or enforceability of the remaining provisions.
3. Any waiver of a breach of this Agreement must be in writing.
4. Any variation of this Agreement must be in writing and signed by a Director of Merlin Software.
5. The headings are for convenience only and shall not affect the interpretation of this Agreement.
6. Any notices given under this Agreement shall be in writing and sent
   (a) by first class pre-paid post to the last known address of the party; or
   (b) by fax to their last known fax number; or
   (c) by e-mail to the last notified e-mail address of the party.
7. These terms and conditions shall be governed by and construed in accordance with the laws of England & Wales and the parties submit to the non-exclusive jurisdiction of the English courts.