Terms & Conditions of Sale of Goods and/or Services
These Terms and Conditions apply to all agreements between Applegate Directory Limited ("Applegate") and every customer (the "Customer") for the supply of Services via the www.applegate.co.uk website (the "Site"), or such other url as Applegate may notify the Customer in writing.
- means these Terms and Conditions and Acceptance Notice;
- "Acceptance Notice"
- means Applegate's emailed acceptance of an order placed by the Customer with Applegate;
- "Business Days"
- means a day other than a Saturday, Sunday, bank or public holiday in the United Kingdom;
- "Commencement Date"
- means the date on which the Services shall commence, as set out in the Acceptance Notice;
- means any person, including a business, placing an order with Applegate;
- means such as the services described on the Site from time to time and listed by Applegate in the Acceptance Notice;
- "Shopping Cart Facility"
- means the online shopping facility provided by Applegate on the Site enabling Customers to purchase the Services;
- means the website at http://www.applegate.co.uk;
- "Telesales Department"
- means the department that is responsible for carrying out telesales on behalf of Applegate; and
- "Terms and Conditions"
- means these terms and conditions.
Headings in these Terms and Conditions are for convenience only and will have no legal meaning or effect.
The Customer may place an order for the provision of the Services with Applegate through the Telesales Department or the Shopping Cart Facility.
The Customer must ensure that the terms of the order are complete and accurate.
An order placed by the Customer for the provision of the Services or variation of the Services is an offer and shall only be deemed to be accepted by Applegate forming a legally binding agreement between the parties on the date an Acceptance Notice of the order is issued by Applegate to the Customer or (if earlier) when Applegate begins the provision of the Services, with the Customer's consent.
Where an order has been accepted by Applegate, the Agreement may only be terminated in accordance with either the 'Agreement Cancellation' or 'Term and Termination' provisions of this Agreement.
Applegate reserves the right to reject an order or variation of the Services received from a Customer for any reason.
Anytime, during the term of the Agreement, the Customer may upgrade the Services provided to it by Applegate, by placing a new order with Applegate through either its Telesales Department or through the Site.
Upon acceptance of a new order in respect of an annual Agreement for the Services, any unexpired portion of the annual fee paid by the Customer, in advance, shall be credited to the Customer and the upgrade shall take effect as a new 12 month Agreement, payable in advance.
If a customer is a business this provision does not apply.
A Customer is entitled to cancel this Agreement for any reason at any time within 7 Business Days, beginning on the date of conclusion of the Agreement or from the date the Acceptance Notice is provided to the Customer.
In the event the Customer wishes to exercise their right to cancel the Agreement under this clause, the Customer must notify Applegate by email at the address specified in the Acceptance Notice, informing Applegate that the Customer wishes to cancel the Agreement.
If the Customer exercises their right to cancel the Agreement before the Services have been provided the Customer will receive a full refund of any fees paid in accordance with Applegate's refunds policy.
If the Customer exercises their right to cancel the Agreement after the Services have been provided a refund for any unexpired portion of the annual fee will be paid in accordance with Applegate's refunds policy.
The prices to be paid by the Customer for the Services ordered shall be as set out in the Acceptance Notice.
All prices are exclusive of VAT and any other and all other duties or taxes which may become due and payable from time to time. These will be added to invoices at the rate applicable at the date of the invoice.
In the event that the order is place by the Customer through Applegate's Telesales Department, Applegate shall invoice the Customer for the provision of the Services within 2 Business Days of the date of the Acceptance Notice. The Customer shall pay an invoice within 15 days from the date of the invoice unless Applegate has agreed to accept payment by Direct Debit (see below).
In the event that the Customer places the order via the Site using the Shopping Cart Facility, the Customer will be charged for the Services on a monthly basis, in advance. Once cleared funds have been received by Applegate, Applegate will notify the Customer electronically how they can view and download a copy of the invoice.
No payment by the Customer shall be deemed to have been received by Applegate until Applegate has received cleared funds. Time for Payment shall be of the essence.
Payment by Direct Debit
If Applegate agrees to receive a monthly staged payment by Direct Debit, as detailed in the Acceptance Notice, the following shall apply:
The Services shall commence on the Commencement Date and shall remain in force from year to year thereafter, unless and until terminated by either party giving 30 days written notice expiring on an anniversary of the Commencement Date, or otherwise in accordance with these Terms & Conditions.
The Customer is responsible for setting up and maintaining the Direct Debit. If a Direct Debit is not paid when due, the full 12 months payment invoiced at the beginning of the Agreement year will become immediately due less any payments that have already been received for that year. Upon becoming immediately due and owing Applegate will write to the Customer requesting payment of the outstanding amount. If the outstanding amount is not paid within 10 Business Days of the request Applegate may, at their sole discretion, terminate the Agreement or suspend the provision of the Services pending payment. Notwithstanding the foregoing and without prejudice to any other right or remedy available to Applegate, Applegate may take legal action to recover any outstanding balance from the Customer as well as the costs involved in bringing such action.
If any refunds are due in accordance with Applegate's Refund Policy they will be refunded to the account that the Direct Debits are made from.
If the Customer exercises their right to cancel the Agreement within the Agreement Cancellation period Applegate will usually refund any money received using the same method as that originally used to pay for the Services
Applegate will usually process the refund due to the Customer as soon as possible and, in any case, within 30 Business Days of the day Applegate receives the cancellation or the day Applegate confirmed the Customer was entitled to a refund.
Applegate shall use reasonable endeavours to provide the Services in accordance with the Acceptance Notice.
Applegate shall provide the Services using reasonable skill and care, and ensure that the Services are provided of a quality conforming to generally accepted industry standards and practices.
Applegate shall use reasonable endeavours to ensure that the description of the Services and prices displayed on the Site for the provision of the Services are correct and up to date.
The Customer shall at all times:
- co-operate with Applegate to enable Applegate to provide the Services; and
- obtain all necessary permissions and consents which may be required before the commencement of the Services.
The Customer hereby grants Applegate a world-wide, non-exclusive, royalty-free licence to reproduce and display any information provided by the Customer to Applegate for the purpose of providing the Services in accordance with this Agreement.
The Customer warrants that:
- it has the right to publish all of the information it provides to Applegate and can grant Applegate such right to publish the information on the Site; and
- the information provided to Applegate for publication is original material belonging to the Customer; and
- Applegate's use, reproduction, distribution, or transmission of information provided by the Customer to Applegate on the Site will not and does not infringe any third party rights; and
- the information does not contain material that includes false advertisements, unfair competition, defamatory material, invasions of privacy or rights of celebrity, or violations of any anti-discrimination law or regulation; and
- the information provided does not contain material that includes false advertisements, unfair competition, defamatory material, invasions of privacy or rights of celebrity, or violations of any anti-discrimination law or regulation; and
- the provision of the Services by Applegate, using the information provided by the Customer, will not infringe any third party rights.
Intellectual Property Rights
All intellectual property rights in the information created or written by or on behalf of the Customer shall be and will remain the absolute property of the Customer.
Neither party will gain by virtue of this Agreement any rights of ownership of or in any copyright, patents, trade secrets, trade marks or other intellectual property or proprietary rights owned by the other.
Limitation of Liability
This provision sets out Applegate's entire liability to the Customer and all other liability of Applegate to the Customer is hereby excluded.
In no event shall Applegate be liable to the Customer whether in contract, tort, by statute or otherwise in respect of any loss of profits and/or for any special, indirect, incidental or consequential loss or damage arising out of or in connection with the provision of the Services, including without limitation: loss of revenue, loss of anticipated savings, loss of business and/or goods, loss of goodwill, loss of use, loss and/or corruption of data and/or other information. For the avoidance of doubt, neither the types of loss and/or damage specified above nor any similar types of loss and/or damage shall constitute direct loss for the purposes of this Agreement.
Nothing shall exclude or restrict Applegate's liability for fraudulent misrepresentation and/or for death or personal injury (including but not limited to sickness and death) to the extent that such injury results from the negligence or wilful default of Applegate, its servants, agents or subcontractors.
Applegate's aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this Agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed 125% of the total fees payable by the Customer to Applegate under this Agreement in that calendar year.
The Customer shall keep Applegate indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by Applegate as a result of or in connection with the provision of the Services to the Customer under this Agreement.
Access to the Site
Applegate reserves the right to exclude access to the Site to persons accessing the Site via certain internet service providers if the domain names of such internet service providers suggest or Applegate becomes aware that the persons are accessing the Site from a country where the displaying of the Site content may be unlawful
Term and Termination
This Agreement shall come into effect when the order has been accepted by Applegate and shall continue for the Term specified in the Acceptance Notice, unless terminated earlier in accordance with this clause or the Agreement Cancellation clause.
Services payable by direct debit shall commence on the Commencement Date and shall remain in force from year to year thereafter, unless and until terminated by either party giving 30 days written notice expiring on the anniversary of the Commencement Date, or otherwise in accordance with these Terms and Conditions.
Without prejudice to any other rights to which it may be entitled, either party may give notice in writing to the other terminating this Agreement with immediate effect if:
- the other party commits any material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 15 days of that party being notified of the breach; or
- if an order is made or a resolution is passed for the winding up of the other party or if an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or if a receiver is appointed of any of the other party's assets or undertaking or if circumstances arise which entitle the Court or a creditor to appoint a receiver or manager or which entitle the Court to make a winding-up order or if the other party takes or suffers any similar or analogous action in consequence of debt.
The Customer may not assign, sub-license or otherwise transfer any rights or obligations under these Terms and Conditions. Applegate reserves the right to assign, sub-licence or transfer any obligations under these Terms and Conditions to a third party.
These Terms and Conditions cannot be varied except in writing by Applegate.
The obligations of each party under these Terms and Conditions shall be suspended during the period and to the extent that that party is prevented or hindered from complying with them by any cause beyond its reasonable control.
If any provision in these Terms and Conditions is found to be invalid or unenforceable by any authority having competent jurisdiction, such invalidity or unenforceability shall not affect the validity of the remaining provisions of these Terms and Conditions, which shall remain in full force and effect.
Failure by either party to insist upon strict performance of any provision of these Terms and Conditions, or the failure of either party to exercise any right or remedy to which it is entitled under these Terms and Conditions shall not constitute a waiver of that right or remedy and shall not cause a diminution of the obligations established under these Terms and Conditions.
Any notice required to be given pursuant to these Terms and Conditions shall be sent to the e-mail address of the relevant party set out in the Order or Acceptance Notice or such other e-mail address as either party notifies to the other from time to time. Any notice given according to the above procedure shall be deemed to have been given on the next Business Day.
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
These terms and conditions are exclusively governed by English law and the parties hereby submit to the exclusive jurisdiction of the English courts.