Conditions of Use and Sale

 

Website Terms and Conditions

Please read these terms and conditions carefully as they apply to your access to and use of our website. We request that you pay particular attention to our Privacy Policy which sets out the principles by which we abide in relation to the treatment of information about visitors to our Website.

ATTENTION: This legal notice applies to the entire contents of this website under the domain name www.breathing-space.co.uk and to any correspondence by e-mail between us and you. Please read these terms carefully before using this Website. Using this Website indicates that you accept these terms regardless of whether or not you choose to register with us. If you do not accept these terms, do not proceed to use this Website. This notice is issued by Fosters Breathing Space.

You may save these terms and conditions for your future reference by clicking on "save" and print a copy of them by clicking on "print".

These terms and conditions constitute the entire agreement between us with respect to our Website and supersede all prior communications and agreements between us, whether electronic, oral or written, regarding the subject matter contained in our Website. A printed version of these terms and conditions and of any notice given in electronic form shall be admissible in judicial or administrative proceedings to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

1. INTRODUCTION

1.1 You may access most areas of this Website without registering your details with us. The information on this Website is intended solely to provide general information on Fosters Breathing Space and the services it provides.

1.2 By accessing any part of this Website, you shall be deemed to have accepted this legal notice in full. If you do not accept this legal notice in full, you must leave this Website immediately.

1.3 Fosters Breathing Space may revise this legal notice at any time by updating this posting. You should check this Website from time to time to review the then current legal notice, because it is binding on you. Certain provisions of this legal notice may be superseded by expressly designated legal notices or terms located on particular pages of this Website.

2. LICENCE

2.1 You are permitted to print and download extracts from this Website for your own use for the sole purpose of reading or seeking information from it on the following basis:

(a) no documents or related graphics on this Website are modified in any way;

(b) no graphics on this Website are used separately from accompanying text; and

(c) Fosters Breathing Space's copyright and trade mark notices and this permission notice appear in all copies;

2.2 You may not copy, distribute, transmit, display, perform, reproduce, publish, licence, create derivative works from, transfer or sell any information, products or services appearing on this Website.

2.3 Unless otherwise stated, the copyright and other intellectual property rights in all material on this Website (including without limitation text, graphics, logos, button icons, images, software) photographs and graphical images) are owned by Fosters Breathing Space or its licensors. For the purposes of this legal notice, any use of extracts from this Website other than in accordance with paragraphs 2.1 and 2.2 above for any purpose is prohibited. If you breach any of the terms in this legal notice, your permission to use this Website automatically terminates and you must immediately destroy any downloaded or printed extracts from this Website.

2.4 Subject to paragraph 2.1, no part of this Website may be reproduced or stored in any other website or included in any public or private electronic retrieval system or service other than temporarily as one single copy in the cache of your computer in the course of using the Website without Fosters Breathing Space's prior written permission.

2.5 Any rights not expressly granted in these terms are reserved.

2.6 Any framing of this website is prohibited. All links to this website must go to www.breathing-space.co.uk.

3. SERVICE ACCESS

3.1 While Fosters Breathing Space endeavours to ensure that this Website is normally available 24 hours a day, it shall not be liable if for any reason this Website is unavailable at any time or for any period.

3.2 Access to this Website may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond Foster's Breathing Space's control.

4. VISITOR MATERIAL AND CONDUCT

4.1 Other than personally identifiable information, which is covered under the Privacy Policy, any material you transmit or post to this Website shall be considered non-confidential and non-proprietary. Foster's Breathing Space shall have no obligations in respect of such material. Fosters Breathing Space and its designees shall be free to copy, disclose, distribute, incorporate and otherwise use such material and all data, images, sounds, text and other things embodied therein for any and all commercial or non-commercial purposes.

4.2 You are prohibited from posting or transmitting to or from this Website any material (including but without limitation):

(a) that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy or which may cause annoyance or inconvenience; or

(b) for which you have not obtained all necessary licences and/or approvals; or

(c) which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party, in the UK or any other country in the world; or

(d) which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data).

4.3 You may not misuse the Website (including, without limitation, by hacking).

4.4 Fosters Breathing Space shall fully co-operate with any law enforcement authorities or court order requesting or directing Fosters Breathing Space to disclose the identity or locate anyone posting any material in breach of paragraph 4.2 or paragraph 4.3.

5. LINKS TO AND FROM OTHER WEBSITES

5.1 Links to third party websites on this Website are provided solely for your convenience. If you use these links, you leave this Website. Fosters Breathing Space has not reviewed all of these third party websites and does not control and is not responsible for these websites or their content or availability and their inclusion does not imply our endorsement of their material. Fosters Breathing Space therefore does not endorse or make any representations about them, or any material found there, or any results that may be obtained from using them. If you decide to access any of the third party websites linked to this Website, you do so entirely at your own risk. You agree that we will not incur any liability in respect of the content of any site accessed through a hyperlink on this website.

6. DISCLAIMER

6.1 While Fosters Breathing Space uses reasonable endeavours to ensure that the information on this Website is correct, Fosters Breathing Space does not warrant the accuracy and completeness of the material and content on this Website. Fosters Breathing Space may make changes to the material on this Website, or to the services described in it, at any time without notice. The material on this Website may be out of date, andFosters Breathing Space makes no commitment to update such material.

6.2 The material on this Website is provided "as is", without any conditions, warranties or other terms of any kind. Accordingly, to the maximum extent permitted by law, Fosters Breathing Space provides you with this Website on the basis that Fosters Breathing Space excludes all representations, warranties, conditions and other terms (including, without limitation, the conditions implied by law of satisfactory quality, fitness for purpose and the use of reasonable care and skill) which but for this legal notice might have effect in relation to this Website.

6.3 The material on this Website does not constitute advice of any kind, whether technical or otherwise. By using this Website you confirm that you have not relied on its content as advice on any specific matter.

7. LIABILITY

7.1 Fosters Breathing Space, any other party (whether or not involved in creating, producing, maintaining or delivering this Website), and any of Fosters Breathing Space's group officers, employees, or agents of any of them, exclude all liability and responsibility for any amount or kind of loss or damage that may result to you or a third party (including without limitation, any direct, indirect, punitive or consequential loss or damages, or any loss of income, profits, goodwill, data, contracts, use of money, or loss or damages arising from or connected in any way to business interruption, and whether in tort (including without limitation negligence), contract or otherwise) in connection with this Website in any way or in connection with the use, inability to use or the results of use of this Website, any websites linked to this Website or the material on such websites, including but not limited to loss or damage due to viruses that may infect your computer equipment, software, data or other property on account of your access to, use of, or browsing this Website or your downloading of any material from this Website or any websites linked to this Website.

7.2 If you are accessing this website in the course of a business, all implied warranties and conditions are excluded to the maximum extent permitted by law.

7.3 Nothing in this legal notice shall exclude or limit Fosters Breathing Space's liability for:

(a) death or personal injury caused by negligence (as such term is defined by the Unfair Contract Terms Act 1977); or

(b) fraud; or

(c) misrepresentation as to a fundamental matter; or

(d) any liability which cannot be excluded or limited under applicable law.

7.3 If your use of material on this Website results in the need for servicing, repair or correction of equipment, software or data, you assume all costs thereof.

8. GOVERNING LAW AND JURISDICTION

This legal notice shall be governed by and construed in accordance with English law. Disputes arising in connection with this legal notice shall be subject to the exclusive jurisdiction of the English courts.

9. GENERAL

If any provision contained in these terms and conditions is determined to be invalid or unenforceable the remainder of the terms and conditions shall not be affected.

This website is operated and controlled from the United Kingdom and these terms and conditions and your use of this Website are governed by and construed in accordance with the laws of England and Wales. Unless you are using our Website and services as a consumer, by agreeing to these terms and conditions you consent to all disputes arising out of or relating to your use of this Website being decided only by the courts of England and Wales. If you are accessing this Website from another jurisdiction it is your responsibility to ensure compliance with the laws that apply to that jurisdiction.

You are not permitted to assign your rights under these terms and conditions. All rights under the Contracts (Rights of Third Parties) Act 1999.

Issue Date: 17 January 2006

 

Terms and Conditions of Sale

1. INTERPRETATION
1.1 In these Conditions: -

"Buyer" means the customer named overleaf;
"Contract" means this contract for the purchase and sale of the Goods and Services subject to these Conditions;
"Goods" means the goods (including any instalments or parts) which the Seller is to supply;
“Seller" means whichever of the following companies is named on the front of this document in the “Signatories” box: Fosters Breathing Space;
"Services" the services which the Seller is to perform.
“Software” means software written by the Seller for the Buyer.

2. BASIS OF THE SALE
2.1 The Seller shall sell and the Buyer shall buy the Goods and the Services subject to these Conditions, which supersede any other terms and which govern the Contract to the exclusion of any terms and conditions which the Buyer purports to apply or which are implied by trade, custom or course of dealing.

2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer's order or other document will form part of the Contract simply as a result of such document being delivered to the Seller or referred to in the Contract.

2.3 Any variation to these Conditions is of no effect unless agreed in writing by a Director or Company Secretary of the Seller.

2.4 Any typographical, clerical or minor/other error or omission in any sales literature, price list, acceptance of offer, invoice or other any document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

3. QUOTATIONS, ORDERS AND SPECIFICATIONS
3.1 A quotation by the Seller is not an offer. Quotations are valid for 21 days only and subject to withdrawal or revision at any time before acceptance of the Buyer's order by the Seller.

3.2 Each order for Goods and/or Services by the Buyer is an offer by the Buyer to purchase the Goods and/or Services subject to these Conditions.

3.3 No order submitted by the Buyer by whatever means is accepted by the Seller until the Seller confirms its written acceptance on the Seller's acknowledgement of order form or (if earlier) the Seller delivers the Goods or supplies the Services to the Buyer.

4. DESCRIPTION
4.1 All descriptions, illustrations, drawings, samples, specifications and advertising issued by the Seller contained in the Seller's catalogues or brochures are issued or published for the sole purpose of giving a general and approximate idea of the Services and/or Goods described in them. They will not form part of the Contract.

4.2 The description of the Goods and Services shall be as set out in the Seller's quotation.

5. CANCELLATION AND DELAY
5.1 No order, once accepted, may be cancelled by the Buyer except with the Seller's written agreement and on terms that the Buyer shall indemnify the Seller against all loss (including loss of profit), costs, (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

5.2 If the Buyer extends or delays the Contract or fails to take delivery of any Goods at the agreed time or (if no time is agreed) within a reasonable time then the Buyer shall indemnify the Seller against all loss (including loss of profit), costs (including the cost of storage and all labour and materials used), damages, charges or expense incurred by the Seller as a result of such extension, delay or failure.

5.3 The Seller shall The Seller shall not be liable for any loss (consequential or otherwise)
or business disruption caused to the Buyer by late delivery/installation of any third party services relating to the sellers products (e.g. telephone lines, broadband etc).
6. PRICE
6.1 The price of the Goods and Services is the Seller's quoted price (exclusive of any applicable VAT) or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller's published price list current at the date of delivery or supply.

7. PAYMENT
7.1 Payment of the price for the Goods and Services is due on receipt (save where the Seller’s quotation or invoice provides for payment to be due 30 days after the date of the invoice.) Time of payment is of the essence.

7.2 Payment by the Buyer shall be made without any deduction, set off, discount, abatement, counter-claim or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.

7.3 The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and to recover all and any costs incurred by it (including costs, fees and disbursements of any outside agency and/or legal fees) in collecting any monies due. This will not affect any other right or remedy available to the Seller.

8. DELIVERY
8.1 Delivery of the Goods shall be within the time agreed and if no time is agreed, within a reasonable time, by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place at the Buyer's cost. The Seller may make delivery by instalments.

8.2 Any dates for delivery and/or performance are approximate only and time of delivery and/or performance is not of the essence.
8.3 No claim for damage or shortages will be considered unless the Seller is given written notice within seven days of delivery. If no such notice is received by the Seller, the Buyer is deemed to have accepted the Goods.
8.4 Where the Goods are to be delivered or Services are to be performed in instalments, each delivery or performance shall be a separate contract and failure by the Seller to deliver or perform any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalment shall not entitle the Buyer to treat the Contract as a whole as repudiated.

9. RISK AND PROPERTY
9.1 The Goods remain the property of the Seller until:-

9.1.1 their full price has been received by the Seller; and

9.1.2 all other sums which are or which become due from the Buyer on any account with the Seller have been received by the Seller
save that the title in respect of software supplied on the basis that the Buyer will use it under licence shall remain in the licensor.
9.3 The Goods are at the risk of the Buyer from the time of delivery.

9.4 Until ownership of the Goods passes to the Buyer, the Buyer must:-

9.4.1 store them at its own cost on its premises separately from any other goods and in a manner which makes them readily identifiable as the goods of the Seller;

9.4.2 maintain the Goods in a satisfactory condition insured on the Seller's behalf for their full price against all risks; and
9.4.3 hold the proceeds of insurance on trust for referred to in Condition 9.4.3 on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn account.

10 CLAIMS BY THE BUYER
10.1 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or Services or their failure to correspond with specification must (whether or not delivery is refused by the Buyer) be notified to the Seller [and, where applicable, the Seller's carriers within seven days from the date of delivery or performance or, where the defect or failure was not apparent on reasonable inspection within 7 days of the time when the Buyer discovered or ought to have discovered the defect or failure.

10.2 In the event the Buyer has a valid claim which has been notified to the Seller pursuant to Condition 10.1, the Seller shall be entitled at its option to repair or replace the Goods or carry out the Services again (or the part or element in question) free of charge or, at the Seller's option, refund to the Buyer the price of the Goods or Services (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer for loss or damage whatsoever arising from the initial delivery of the Goods or performance of the Services or from the delay before the defective services were rectified or the repayment is made.

10.3 If the Buyer does not notify claims in accordance with Condition 10.1 then:-

10.3.1 the Buyer shall not be entitled to reject the Goods and/or Services; and
10.3.2 the Seller shall have no liability for such defect or failure; and
10.3.3 the Buyer shall be bound to pay the full price for the Goods and/or Services

10.4 In no event shall the Buyer be entitled to reject the Goods on the basis of any defect or failure which is so slight that it would be unreasonable for the Buyer to reject them.
12 GOODS WARRANTY
12.1 Where the Seller is not the manufacturer of the Goods, the Seller shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller
12.2 The Seller warrants that (subject to the other provisions of these Conditions) upon delivery, and for a period of 3 months from the date of delivery, the Goods will be of satisfactory quality and be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer has made known that purpose to the Seller in writing and the Seller has confirmed in writing that it is reasonable for the Buyer to rely on the Seller’s skill and judgement.
12.3 The Seller shall not be liable for a breach of the warranty in condition 12.2 unless:
12.3.1 The Buyer gives the Seller written notice of the defect, and (if the defect is as a result of damage in transit) to the carrier, within 7 days of the time when the Buyer discovered or ought to have discovered the defect; and
12.3.2 The Seller is given a reasonable opportunity after receiving the notice of examining the Goods and the Buyer (if asked to do so) has returned such Goods to the Seller’s place of business at the Buyer’s cost for the examination to take place there
12.4 The Seller shall not be liable for a breach of the warranty in condition 12.2 if:

12.4.1 The Buyer makes any further use of the Goods after giving such notice; or
12.4.2 the defect arises because the Buyer failed to follow the Seller’s instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or

12.4.3 The Buyer has altered or repaired the Goods without the Seller’s written consent
12.5 Subject to conditions 12.3 and 12.4, if any of the Goods do not conform with the warranty in condition 12.2 the Seller shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Seller so requests, the Buyer shall, at its expense, return to the Seller the Goods or the part of such Goods which is defective
12.6 If the Seller complies with condition 12.5 the Seller shall have no further liability for a breach of the warranty in condition 12.2 in respect of such Goods
12.7 Any Goods replaced will belong to the Seller and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 3 month period

14. LIMITATION OF LIABILITY

THE BUYER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
14.1 Save as expressly provided in these terms the Seller makes no warranty, representation or condition of any kind concerning the Services and/or Goods and, in particular (without limitation), the Seller makes no warranty condition or representation as to standard, value, condition, design, operation or performance and all such warranties, representations, conditions, obligations and liability of any kind whatever, whether in contract or tort, whether express or implied or otherwise in respect of the Services and/or Goods are expressly excluded to the fullest extent permitted by applicable law.
14.2 Nothing in these Conditions excludes or limits the Seller's liability for death or personal injury caused by the Seller's negligence or for fraudulent misrepresentation.

14.3 Subject to Conditions 14.1 and 14.2:-
14.3.1 the Seller shall not be liable to the Buyer for any loss of actual or anticipated profits or savings, loss of contract, loss of business, loss of production, financial loss, depletion of goodwill, punitive, indirect, special, incidental or consequential loss or damages, loss of income, loss of business opportunities, damage to or corruption of data or any damages due under penalty clauses, wasted expenditure, costs or expenses whatsoever which arise out of or in connection with the Contract (including loss or damage suffered by the Buyer as a result of an action brought by a third party) even if, in any such case, such loss was reasonably foreseeable or the Seller had been advised of the possibility of the Buyer incurring the same.
14.3.2 subject to Condition 14.3.1, the Seller's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited:
14.3.2.1 in the case of any liability in relation to any Goods to the cost of the Goods;

14.3.2.2 in the case of any liability in relation to Services to reperforming the Services (or if the Seller elects, to the cost of reperforming the Services);

15. TERMINATION
15.1 The Contract shall terminate immediately upon the happening of any one or more of the following: -

15.1.1 the Buyer is dissolved or has a bankruptcy order made against him or makes an arrangement or composition with his creditors; or

15.1.2 the Buyer (being a body corporate) convenes a meeting of creditors or enters into liquidation (whether voluntary or compulsory); or

15.1.3 the Buyer has a receiver, manager, administrator or administrative receiver appointed of the whole or any part of its undertaking, property or assets; or

15.1.4 a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer; or

15.1.5 any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer in any jurisdiction to which the Buyer or any of its assets is subject.

15.2 The Contract shall terminate immediately upon service of written notice of termination by the Seller on the Buyer on the happening of any one or more of the following:-

15.2.1 the Buyer has, suffers or allows any execution to be levied on its assets or obtained against it; or

15.2.2 the Buyer commits a material breach of any of its material obligations under the Contract or under any other contract with the Seller; or

15.2.3 the Buyer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or

15.2.4 the Buyer ceases or threatens to cease to trade.

15.3 termination of the Contract shall not affect rights and duties accrued before termination.
19. ASSIGNMENT
19.1 The Seller may assign or subcontract the Contract or any part of it and may dispose of or deal in any manner with any of its rights or beneficial interests under it.
19.2 The Buyer may not assign the Contract or dispose of or deal in any manner with any of its rights or beneficial interests under it.

20 SEVERABILITY
If any provision in this agreement is held to be illegal or unenforceable in whole or part, such provision or part shall to that extent be deemed not to form part of this agreement and the validity and enforceability of the remainder of this agreement shall not be affected.

21. ENGLISH LAW
The Contract shall be governed by English law, and the parties submit to the exclusive jurisdiction of the English courts.
22. DISPUTES
If any dispute arises out of this Agreement the parties will attempt to settle it by mediation in accordance with the procedures of ADR Group (www.adrgroup.co.uk). Unless otherwise agreed between the parties the mediator will be nominated by ADR Group.

Issue Date: 1st March 2007.