In these Conditions the following words have the following meanings:
1.1 “Airtime Agreement” means an airtime agreement with any Service Provider (as defined below) arranged by the Buyer with an End Customer.
1.2 “Buyer” means the person, firm or company who purchases Goods from the Seller.
1.3 “Chess Group Privacy Notice” means the Privacy Notice applicable to the members of the Chess Group, including Chess Partner Limited, which can be found on the Website.
1.4 “Clawback” means the recovery of Commission by the Seller from the Buyer.
1.5 “Commission” means a payment, an allowance, a credit or the reduction of a liability conferred by the Seller on the Buyer whether in the form of a direct cash commission, the supply of an incentive, a bonus or any other form of payment, whether expressed to be ex gratia or a contractual entitlement in accordance with the current terms published on the Distributor’s Partner Wise page on its Website.
1.6 “Controller and Processor” shall have the meaning ascribed to them in the Data Protection Legislation.
1.7 “Data Protection Legislation” means all applicable data protection legislation in place from time to time including the Data Protection Act 1998, European Privacy and Electronic Communications Directive 2002/58/EC and, the General Protection Regulation (EU) 2016/679 (“GDPR”) on and from 25 May 2018, any laws which implement any such laws and any laws or regulations which replace, extend, re-enact, consolidate or amend any of the foregoing.
1.8 “Data Subject” shall have the meaning ascribed to it in the Data Protection Legislation;
1.9 “End Customer” means the person, firm or company who properly acquires the Goods from the Buyer.
1.10 “Goods” means goods and/or services supplied by the Seller to the Buyer under this Contract.
1.11 “Operating Manual(s)” means the operations guidance as provided by the Seller or the Service Provider from time to time.
1.12 “Partner Application” means the Chess Partner Application Form and Deed of Guarantee completed and signed by the Buyer.
1.13 “Partner Wise” means the on-line price tool published by the Seller from time to time on its Website which sets out the Goods and associated Commission payable to the Seller in accordance with the Stockist Agreement.
1.14 “Personal Data” shall have the meaning ascribed to it in the Data Protection Legislation.
1.15 “Stockist Agreement(s)” means the agreement between the Buyer and the Seller that contain the Service Provider specific terms and conditions regarding the Buyers appointment and obligations as a stockist for the Service Provider.
1.16 “Seller” means Chess Partner Limited, whose principal place of business is at Chess House, Studio Way, Borehamwood,Herts WD6 5NN, company number 05091933.
1.17 “Service Provider” means any mobile telephone service, network and/or airtime provider.
2.1 These conditions together with the Partner Application shall form the basis of the contract between the parties (the “Contract”) subject to the Special Conditions as defined in clause 2,.6 below. Notwithstanding anything to the contrary in the Buyer’s standard conditions of purchase, these conditions shall apply except so far as expressly agreed in writing by a director of the Seller.
2.2 No servant or agent of the Seller has power to vary these Conditions orally, or to make representations or promises about the condition of the Goods, their fitness for any purpose or any other matter whatsoever.
2.3 The acceptance by the Buyer of all or any of the Goods shall constitute acceptance by the Buyer of these Conditions.
2.4 The Seller will provide the Goods at the request of any representative of the Buyer, unless otherwise instructed in writing by the Buyer.
2.5 The construction, validity and performance of these Conditions and this order shall be governed by English Law.
2.6 These Conditions shall be subject to the terms of the Stockist
Agreement(s), the relevant Operating Manual(s) and any other term and conditions as may be provided by the Seller or and/or the Service Provider from time to time (together the “Special Conditions”).
2.7 In the event of any conflict, or apparent conflict, between the Special Conditions and these Conditions, the Special Conditions shall prevail.
2.8 These Conditions supersede all previous trading terms issued by the Seller.
2.9 All notices to be served under this Contract shall be served by first class pre-paid post, e-mail or facsimile message at the registered office or principal trading address of the intended recipient. Notices shall be deemed served when they would ordinarily have been received in normal business hours according to the means of transmission of such notices.
3.1 All prices are quoted exclusive of Value Added Tax and, reexport, other taxes, duties or levies.
3.2 All accounts are due for payment 30 days following the date upon which the Goods are delivered. Notwithstanding any agreement to provide credit, contra charges such as Clawback will be payable as soon as they are imposed.
3.3 The Seller reserves the right to charge interest at 8% per annum above the base rate from time to time in force of Barclays Bank Plc on all overdue accounts, together with compensation for the costs suffered by the Seller arising from late payment, in accordance with its rights under the Late Payment of Commercial Debts (Interest) Act 1998.
3.4 All legal costs and expenses reasonably incurred by the Seller in seeking to collect overdue invoices from the Buyer or otherwise to enforce its rights under this Contract will be recoverable from the Buyer on an indemnity basis.
4.1 The Buyer shall not be entitled to withhold payment of any amount payable under this order by reason of any dispute or claim by the Buyer.
4.2 The Seller shall be entitled to set off against any amount payable under this order any amount due by the Buyer to the Seller under this or any other agreement.
4.3 In the case of short delivery, partial delivery or delivery of damaged Goods, the Buyer shall remain liable to pay the full invoice price of all Goods delivered or available for delivery.
4.4 The Seller reserves the right at any time at its discretion to demand security for payments before continuing with or delivering any of the Goods notwithstanding any subsisting agreement to provide credit to the Buyer.
4.5 Without prejudice to any other rights of the Seller, if the Buyer shall fail to make punctual payments of any sum under any contract between the parties, the Seller may, at its option, either withhold delivery of the Goods until the total indebtedness of the Buyer to the Seller has been discharged or cancel this order.
4.6 Any payment made by cheque, which is not met upon the first presentation to the Buyer’s bank, will accrue an administration charge in respect of each such presentation as published from time to time on the Seller’s Website. This charge will also apply to all unauthorised credit card transactions and any credit card transaction, which is subsequently charged back by the card issuer.
4.7 The Seller reserves the right to retain or offset any amounts as may be due to the Buyer under this Contract or otherwise, in respect of any amounts which may be owed by the Buyer to the Seller from time to time, under this Contract or otherwise.
4.8 The Seller shall at any time be entitled to appropriate any payment(s) made by or credit given to the Buyer as the Seller may in its absolute discretion think fit, notwithstanding any purported appropriation to the contrary by the Buyer.
4.9 The Buyer, by agreeing to be bound by these conditions, irrevocably agrees that the Seller may collect any outstanding sums as may be due to the Seller from time to time from the Buyer’s credit/debit card.
5.1 Delivery will be deemed to have been made when the Goods leave the premises of the Seller or, as the case may be, the premises of the Seller’s supplier in circumstances where the Goods are delivered direct from such suppliers or, where the Goods are not delivered by the Seller, but by an independent carrier, delivery of the Goods by the Seller to the carrier shall be delivery to the Buyer.
5.2 Delivery dates are given in good faith but are not guaranteed and no liability will be accepted for any loss whatsoever suffered or caused through late delivery or non-delivery and time of delivery shall not be of the essence.
5.3 The Seller reserves the right to make delivery by instalments and tender a separate invoice in respect of each instalment.
5.4 The Buyer shall procure the signature of the Seller’s delivery note as acknowledgement of delivery of the Goods specified on the delivery note and that there is no external evidence of tampering and/or damage to the Goods in transit.
5.5 If the Buyer wishes to claim that there is any shortage on the delivery of any Goods or that any of the Goods are delivered damaged, the Buyer shall give notice in writing to the Seller within 48 hours after the time of delivery, or within 7 days of non-delivery if the Goods are not delivered on the anticipated delivery date, failing which the Goods shall be deemed to have been delivered undamaged and in accordance with the delivery documents.
5.6 If short delivery does take place, the Buyer shall not reject the Goods but shall accept the Goods delivered as a part performance of the order;
5.7 If short delivery or damaged Goods are complained of, the Seller shall be under no liability in respect of the claim unless a reasonable opportunity to inspect the Goods is provided to the Seller before any use is made of the Goods by the Buyer.
5.8 The liability of the Seller for short delivery or damaged Goods shall be strictly limited to the provision of any Goods not delivered, or, at the Seller’s option, the replacement or repair of any damaged Goods or the cancellation of all or part of the order.
6. SPECIFICATION, WARRANTIES AND DEFECTIVE GOODS
6.1 The Goods are supplied on the basis that they comply with technical specifications contained in printed documentation concerning the Goods prepared by the Seller, the Service Provider or the manufacturer and that they conform to the written descriptions contained on any order form.
6.2 The Seller reserves the right without notice to the Buyer to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or EC requirement or which do not materially affect their quality or performance.
6.3 In the event that a defect in the Goods is discovered by the Buyer and reported to the Seller in writing during the period of 12 months from the date of delivery of the Goods, which defect was caused by faulty design or manufacture (and not by misuse), the Seller will, at its option, either repair the Goods at its own expense, replace the Goods or refund the purchase price of the Goods, subject in all cases to the return of the Goods (or such of them as it is claimed are defective) to the Seller by the Buyer, at the Buyer’s expense.
6.4 Save as set out in sub-clause 6.3, all warranties or other terms implied by statute or otherwise shall not apply to this order, including but not limited to those implied by the Sale of Goods Act 1979 (as amended by the Sale and Supply of Goods Act 1994), the Supply of Goods and Services Act 1982, the Consumer Protection Act 1987 and the Consumer Rights Act 2015.
6.5 The Seller shall not be liable for any consequential or indirect loss suffered by the Buyer or any third party in relation to this order. The Buyer shall indemnify the Seller in respect of any claim of any person in respect of such consequential or indirect loss.
6.6 This clause 6 constitutes the entire liability of the Seller under this order, which, in any event, shall not exceed the contract price of the Goods, save in respect of the Seller’s liability for death or personal injury resulting from negligence.
6.7 The Buyer shall indemnify the Seller against any liability that the Seller may incur as a result of a claim against the Seller under the Consumer Protection Act 1987 in respect of an alleged defect in the Goods.
7. TITLE AND RISK
7.1 Risk in the Goods shall pass to the Buyer when the Goods are delivered to the Buyer.
7.2 The ownership of the Goods shall remain with the Seller until the Buyer has paid all liquidated sums owed by the Buyer to the Seller, including Clawback, whether under this contract or otherwise.
7.3 The Goods shall be stored on the Buyer’s premises separately from any other goods and the Buyer shall not interfere with any identification marks or serial numbers on the Goods.
7.4 The Buyer is licensed by the Seller to sell the Goods delivered to the Buyer subject to the revocation of such authority in accordance with sub-clause 7.5 below.
7.5 Until title to the Goods passes, without prejudice to any other rights of the Seller, the Seller may at any time revoke the power of sale and use contained in sub-clause 7.4 above by notice to the Buyer if the Buyer is in default for longer than 14 days in the payment of any sum whatsoever due to the Seller whether in respect of the Goods or otherwise or if the Seller has bona fide doubts as to the solvency of the Buyer, whereupon the Buyer shall deliver up such Goods to the Seller.
7.6 The Seller may at any time recover and re-sell Goods in which title shall not have passed to the Buyer. The Seller by its servants and agents shall be entitled to access to the Buyer’s premises or those to which the Buyer has a right of access where the Goods or some of them are stored or thought to be stored for the purpose of re-possession at any time.
7.7 The Buyer will, upon demand, notify the Seller of all and any locations where the Goods will be delivered to or stored by the Buyer.
7.8 Risk in the Goods shall revert to the Seller following repossession but not otherwise.
7.9 If the Buyer shall become bankrupt or insolvent, or have a receiving order or administration order made against him or compound with his creditors, or, being a corporation, commence to be wound up, not being a members voluntary winding up for the purpose of reconstruction or amalgamation, or carry on its business under a receiver for the benefit of its creditors or any of them, or the Seller has bona fide doubts as to the solvency of the Buyer, all sums payable to the Seller by the Buyer in respect of the Goods or otherwise shall become due and payable forthwith, without requirement for any notice to be given and the Seller shall be released from its obligation to deliver such of the Goods as remain undelivered, save on terms acceptable to the Seller, or if the Goods or any of them shall have been delivered, the power of sale and use contained in sub-clause 7.4 above shall be deemed revoked forthwith, and the Goods shall be delivered up to the Seller.
8. CANCELLATION, REFUNDS, RETURNS AND TERMINATION
8.1 No cancellation or variation of the whole or any part of the order by the Buyer is permitted, except where expressly agreed in writing by a person authorised to sign on behalf of the Seller.
8.2 When the Buyer rejects any Goods, then the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such Goods or any failure by the Seller to supply Goods which conform to the description ordered by the Buyer.
8.3 The Seller may, at any time, at its sole discretion, suspend or cancel any outstanding orders and cease to supply Goods to the Buyer.
8.4 Without prejudice to any other rights that may be available at any time, each party shall have the right, by giving at any time written notice to the other party, to terminate this Agreement immediately if:
8.4.1 the other party commits a material breach of a term of this Agreement that is (a) incapable of remedy; or (b) or, if capable of remedy, the other party fails to remedy within seven (7) days of a written notice to do so;
8.4.2 the other party at any time has a court order made or resolution passed for winding it up or a petition is presented for an administration order to be made in relation to it or is otherwise insolvent or unable to pay its debts as they fall due; or
8.4.3 a supervisor, receiver, administrator, administrative receiver or other encumbrancer takes possession of or is appointed over, or any distress, execution or other process is levied or enforced upon the whole or a substantial part of the assets of the other party.
8.5 The Seller shall have the right, by giving at any time written notice to the Buyer to terminate this Contract immediately if:
8.5.1 the Buyer is in material breach of the Stockist
8.5.2 any licence or approval which the Seller or the Buyer requires (including the Service Provider) for the purposes of this Contract and/or the Special Conditions is revoked, amended or otherwise cease to be valid;
8.5.3 the Buyer is suspected in the reasonable opinion of the Seller, of involvement with fraud or attempted fraud in connection with the Goods, this Contract and/or the Special Conditions;
8.5.4 the Seller is instructed by OFCOM or any other competent legal or regulatory authority to stop providing the Goods to the End Customer;
8.5.5 the Buyer has breached this Contract and/or the Special Conditions in such a way that the Seller could be in breach of any law or regulation and/or in breach of any agreement with its Service Providers required to provide the Goods; or
8.5.6 upon termination of the Stockist Agreement in accordance with clause 11 of the Stockist Agreement.
8.6 The termination of this Contract will be without prejudice to the rights of the Seller prior to or following termination and termination of this Contract not prejudice the Seller’s rights in relation to Commissions and Bonuses in accordance with and to recover the same by way of Clawback in accordance with clauses 8.7 to 8.12 inclusive and clauses 11.6 to 11.9 inclusive of the Stockist Agreement respectively.
9. DATA PROTECTION
9.1 The parties agree that the Buyer is a Controller and the Seller is a Processor for the purposes Personal Data provided by, and relating to, the Buyer pursuant to these Conditions and the Partner Application (“Buyer Personal Data”).
9.2 The Seller shall process Buyer Personal Data in compliance with the terms of this Agreement and Data Protection Legislation.
9.3 The Seller shall only process Buyer Personal Data in accordance with these Conditions and the Chess Group Privacy Notice, except where otherwise required by applicable law.
9.4 The Seller shall ensure that all its employees processing Buyer Personal Data are bound by duties of confidentiality and shall only process the same as is necessary for the purposes of this Contract.
9.5 The Seller shall implement and maintain appropriate technical and organisational measures to protect Buyer Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
9.6 The Seller shall (at the Buyers cost) assist the Buyer in so far as is possible in the fulfilment of the Buyers obligations to respond to requests for exercising the Data Subject’s rights in respect of any Buyer Personal Data.
9.7 The Seller shall not process and/or transfer, or otherwise directly or indirectly disclose any Buyer Personal Data in or to countries outside the EEA without the prior written consent of the Buyer.
9.8 The Seller shall notify the Buyer without undue delay on becoming aware of any Personal Data breach in respect of the Buyers Personal Data and shall (at the Buyers cost) assist the Buyer as may be reasonably required in the investigation, remediation and mitigation of the Personal Data breach.
9.9 Upon expiry or termination of the relationship between the parties and providing there is no legitimate interest which requires the Buyer Personal Data to be retained, at the Buyers cost and option, the Seller shall either return all Buyer Personal Data or securely dispose of the Personal Data except to the extent that any applicable law requires the Seller to store such Buyer Personal Data.
9.10 This clause 9 shall survive termination or expiry of the relationship between the parties.
10.1 The Seller shall not be liable for any failure to deliver or delay in delivery of the Goods arising from circumstances outside its control, including but not limited to lockouts, fire, accidents, defective materials, delays in receipt of raw materials or bought-in goods or components.
10.2 If all or any part of any provision of these Conditions is found by any competent court or authority to be illegal, invalid or unenforceable the offending words shall be deemed severable and the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected by it.
10.3 The Buyer shall not be entitled to assign or otherwise transfer the Contract or any of its rights or obligations under the Contract without the Seller’s prior written consent. The Seller reserves the right to withhold such consent in its absolute discretion. The Seller shall be entitled to assign the Contract.
10.4 The Seller may vary and replace any term this Agreement from time to time upon written notice to the Stockist at any time.
10.5 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered a waiver of any subsequent breach of the same or any other provision. Any waiver shall be in writing signed by the party waiving its rights.
10.6 The Buyer undertakes and agrees with the Seller that the Buyer will keep secret and confidential all pricing information provided by the Seller and/or to which the Buyer is permitted to have access and to use such information only for the purpose of carrying out this Agreement and for no other purpose whatsoever.
10.7 A person who is not party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any Terms of these Terms and Conditions.