Purchase of Ancillary Equipment terms and conditions
The following terms and conditions apply whenever you purchase Ancillary Equipment from us to use with one of our Services. These terms are in addition to the terms and conditions set out in the Merchant Services Agreement ("Agreement"). If there is any conflict between this Addendum and the Agreement then the provisions of this Addendum shall prevail to the extent necessary to resolve the conflict. For the purposes of this Addendum the Ancillary Equipment is included in the definition of Service in the Agreement and the Purchase Price shall be considered a Fee for the Purposes of the Agreement.
1.1 Upon payment of the Purchase Price and other relevant Fees and charges for the supply of the Ancillary Equipment. The Ancillary Equipment will be owned by you.
1.2 We shall deliver the Ancillary Equipment to you at the address we have for you in our records. Any dates suggested for delivery of the Ancillary Equipment are estimates only and time of delivery is not of the essence and may not be made so by the service of any notice. We shall not be liable for any losses incurred by you if the delivery of the Ancillary Equipment is delayed for any reason from the anticipated delivery date. In addition we shall not be liable for any delay or failure in delivery of the Ancillary Equipment that is caused by a Force Majeure Event, or your failure to provide us with adequate delivery instructions for the Ancillary Equipment or any relevant instruction relating to the supply of the Ancillary Equipment.
1.3 If you fail to accept or take delivery of the Ancillary Equipment, then except where such failure or delay is caused by a Force Majeure Event or by our failure to comply with our obligations under this Addendum in respect of the Ancillary Equipment:
(A) delivery of the Ancillary Equipment shall be deemed to have been completed at 9:00 am on the third Business Day following the day on which we attempted to make the first delivery of the Ancillary Equipment (notwithstanding any further attempts we make to deliver the Ancillary Equipment after the first attempt); and
(B) we shall store the Ancillary Equipment until delivery takes place, and charge you for all related costs and expenses (including insurance).
1.4 If ten Business Days after we attempted to make the first delivery of the Ancillary Equipment you have not accepted or taken delivery of it, or notified us that delivery has not taken place, (notwithstanding any further attempts we may make to deliver the Ancillary Equipment at our discretion) we may resell or otherwise dispose of the Ancillary Equipment. We shall be entitled to treat this Addendum as having been cancelled by you ten Business Days after we attempted to make the first delivery of the Ancillary Equipment and we reserve the right to charge a reasonable administration fee to you in respect of your cancellation of this Addendum.
1.5 The risk of loss, theft or damage to the Ancillary Equipment shall pass to you on delivery.
1.6 Notwithstanding anything else in the Agreement the Ancillary Equipment may only be used: (i) in the United Kingdom (and where applicable the Republic of Ireland); and (ii) in accordance with our instructions and the User Guide. In addition you agree that use of the Ancillary Equipment is personal to you and your use of the Worldpay Services and you are not permitted to directly or indirectly re-sell the Ancillary Equipment, including following any termination of the Agreement or Addendum.
1.7 You shall remain fully liable for ensuring the suitability and compatibility of all Ancillary Equipment with other equipment, network connections and other services both provided by Worldpay and other third parties. We may determine from time to time that different equipment to the Ancillary Equipment is needed to use in conjunction with Worldpay Services. It will be your responsibility to upgrade or update to such equipment if this occurs.
2.1 We warrant that on delivery, and for a period of 12 months from the date of delivery (the ‘Warranty Period’) the Ancillary Equipment shall:
(A) conform in all material respects with its description and any applicable specification;
(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.
2.2 Subject to clause 2.3 and 2.4, if:
(A) You give notice in writing during the Warranty Period within a reasonable time of discovery that the Ancillary Equipment does not comply with the warranty set out in clause 2.1; and
(B) You (if asked to do so by us) return such Ancillary Equipment (with adequate insurance) to the address notified to you at your cost, then we shall, at our option, after examining the Ancillary Equipment and determining that the warranty applies, repair or replace the defective Ancillary Equipment, or refund the purchase price of the defective Ancillary Equipment in full. If we elect to replace the defective Ancillary Equipment then you understand and agree that we may, to the extent permitted by applicable law, do so from refurbished stock and that the replacement Ancillary Equipment may not be new. Any election by us to repair or replace such Ancillary Equipment shall have no effect on the remainder of the Warranty Period referred to in clause 2.1, which will continue to run from the delivery date of the original Ancillary Equipment. Any remaining balance of the 12 month warranty in clause 2.1 shall apply to the repaired or replaced Ancillary Equipment.
This limited warranty is in addition to any manufacturer warranty by any third party manufacturer that may apply.
2.3 We shall not be liable for the Ancillary Equipment’s failure to comply with the warranty in clause 2.1 if:
(A) You make any further use of such Ancillary Equipment after giving notice in accordance with clause 2.2;
(B) the defect arises because you failed to follow any instructions (including the User Guide or good trade practice) as to the storage, installation, commissioning, use or maintenance of the Ancillary Equipment;
(C) You alter or repair, or attempt to alter or repair such Ancillary Equipment without our written consent;
(D) You fail to (i) return the Ancillary Equipment to us for maintenance software or hardware updates or upgrades; or (ii) apply software downloads, updates or upgrades to the Ancillary Equipment at our direction, in either case upon reasonable written notice from us (where such notice can potentially be sent to the Ancillary Equipment);
(E) the defect amounts to cosmetic damage, including but not limited to scratches, dents and broken plastic; or
(F) the defect arises as a result of fair wear and tear, or your wilful damage, negligence, misuse, abnormal working conditions or use in conjunction with items not approved by us and/or electrical disturbances or acts of God, including but not limited to civil disturbance, war, flood, fire, rodents or insects.
2.4 Except as explicitly provided in this clause 2, we shall have no liability to you in respect of the Ancillary Equipment’s failure to comply with the warranty set out in clause 2.1 and insofar as the supply of the Ancillary Equipment is concerned, all other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
2.5 We shall have no other liability to you in the event that the Ancillary Equipment is required to be replaced or modified in any way.
2.7 This clause 2 does not limit or affect any statutory rights to which you may be entitled.
2.8 If you require a replacement of Ancillary Equipment where we are not liable to replace it in accordance with these terms and we are able to provide the replacement, then an additional fee is payable which we will notify to you.
3. You shall undertake all responsibilities and obligations which would otherwise be our responsibilities and obligations under the WEEE Regulations regarding the collection, treatment, recycling or recovery and safe disposal of the Ancillary Equipment and for any other electrical and electronic equipment (‘EEE’) which becomes waste, as defined in the WEEE Regulations, including EEE from third parties where we would otherwise have an obligation to finance the collection, recycling, treatment and/or disposal of such EEE under the WEEE Regulations. For the purposes of this clause WEEE regulations means the Waste Electrical and Electronic Equipment Regulations 2006 (as amended).
4. You must comply with all export laws and restrictions and regulations and you agree that you will not export, or allow the export or re-export of any of the Ancillary Equipment in violation of any such restrictions, laws or regulations. In addition you represent and warrant that you are not located in, under the control of, nor a resident of any country restricted under export laws and regulations.
Other Fees under the Agreement
1. Where the Ancillary Equipment relations to a terminal or any point of sale device, in addition to any third party or other charges that may be payable in relation to Installation Support, we may charge you and you will pay us the sum of:
(A) £75 (excluding VAT) if you fail to provide us with 24 hours notice of cancellation when an installation appointment is agreed;
(B) £100 (excluding VAT) administration fee if you fail for any reason to accept delivery of the Ancillary Equipment within 28 days of us notifying you that these are ready for delivery;
(C) £125 (excluding VAT) per Ancillary Equipment in the event that we are required to collect or remove (including following termination) Ancillary Equipment or for the swap over;
(D) £175 (excluding VAT) for the repair of a damage; and
(E) up to £367 (excluding VAT) for replacement