General Terms and Conditions of Trading with OrderVox

These terms & conditions set out the terms on which you will be bound if you purchase products and/or services from OrderVox. Please read these terms & conditions carefully as they will govern our relationship with you.

1. Parties
   1. OrderVox Limited is a company registered in England (company no. 11664688) with its registered address at 903 Victory Buinsess Centre, Somers Road North, Portsmouth, P01 1PJ, England (“ OrderVox”); and
   2. You are the customer who has engaged OrderVox to purchase Products and/or Services on behalf of the business that you work for (the “ Customer”).
2. Definitions and Interpretation
   The definitions and rules of interpretation in this clause apply in this Customer Contract (“ Agreement”):
   Hardware: any hardware provided by OrderVox, including without limitation, point of sale terminals, receipt printers, cash drawers, CCTV and epos peripherals;
   Product: any Hardware and/or Software; Return to Base: means that the Customer is required to send any Hardware with a fault or defect back to OrderVox’s designated location to undertake testing of the Hardware;
   Software: any point of sale software provided by OrderVox for use with the Hardware or any third party hardware;
   Support Plan: the ‘Standard’ support plan or ‘Premium’ support plan for the maintenance and upkeep of the Software, as further detailed in clause 11;
   Working Days: Monday to Friday (excluding any bank or public holidays in England);
   Working Hours: 9am to 6pm GMT on a Working Day.
   

   System: the OrderVox applications, interfaces and technical systems, including any Software and any related manuals;

   1. Statement of Work: a document entered into by the parties which incorporates the terms of this Agreement and provides further specifications for the Services;
   2. Services: the services to be provided by OrderVox to the Customer under this Agreement, as agreed by the parties in writing. This can include: support, maintenance and installation of the Products;
   3. Professional Services: means all projects that are scoped out under the name ‘Professional Services’ in an order or Statement of Work;
   4. Intellectual Property Rights: any patents, copyright, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs (whether registered or unregistered) database rights, topography rights, moral rights, rights in confidential information (including without limitation, know-how and trade secrets) and any other intellectual property rights or industrial property rights, in each case whether registered or unregistered and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
   5. Data Protection Laws: means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the General Data Protection Regulation 2016/679 (GDPR) from 25 May 2018 and laws implementing or supplementing the GDPR, and to the extent applicable, the data protection or privacy laws of any other country. ‘Personal Data’ shall have the meaning defined by the applicable Data Protection Laws;
   6. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
   7. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
   8. The terms ‘including’, ‘include’, ‘in particular’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms.
   9. In the event of conflict between this Agreement and any Statement of Work, the Statement of Work will prevail.
   10. A reference to ‘writing’ or ‘written’ includes faxes and email unless stated otherwise.
3. Application of this Agreement
   1. This Agreement shall apply to any Products and/or Services provided by OrderVox to the Customer (and shall be incorporated into any quotation or order for such Products and/or Services).
   2. Any acceptance of a quotation or placement of an order by the Customer will be treated as an offer to purchase the Products and/or Services from OrderVox and OrderVox will have the right to reject such offers at any time.
   3. This Agreement shall prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
   4. This Agreement incorporates and supplements the OrderVox Software End User Licence Agreement (“EULA”) at Annex A (as updated from time to time). In the event of conflict between the terms of this Agreement and the EULA, this Agreement shall prevail.
   5. Notwithstanding any other provision in this Agreement, the duration of any Software licence (“SaaS Period”) and/or any Hardware rental period (“HaaS Period”) shall be as agreed by the parties in writing.
4. Choosing a Product and Services from OrderVox
   1. OrderVox shall provide information about its Products and Services to help inform the Customer’s basis of its purchase and, if requested by the Customer, OrderVox may provide a full demo of its Software on a free of charge basis.
   2. Notwithstanding clause 4.1, it is the sole responsibility of the Customer to ensure that the Product(s) and/or Services it is purchasing meet the Customer’s requirements.
   3. Upon the Customer’s request, OrderVox will promptly provide a written quotation for any Product(s) and/or Services. This quotation will be a guideline price and does not form the basis of any contract between the Customer and OrderVox.
   4. Any advice or recommendation given by OrderVox or its representatives to the Customer regarding the Services or the storage, application or use of the Products which is not confirmed in writing by OrderVox is followed or acted upon at the Customer’s own risk, and accordingly OrderVox shall not be liable for any such advice or recommendation which is not so confirmed in writing.
   5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice, website or other document or information issued by OrderVox shall be subject to correction without any liability on the part of OrderVox.
   6. The Customer will assume the risk for the Products once they have been delivered to the delivery address specified in the Customer’s order. Risk in the Products will only transfer back to OrderVox upon its physical receipt of the Products in the event that they are eligible to be returned in accordance with this Agreement.
   7. Subject to clauses 8 and 9 (where title remains with OrderVox at all times), title to any Products ordered by the Customer shall pass to the Customer upon OrderVox receiving payment in full for those Products.
5. Fees
   1. All Product and Service pricing is provided in ‘good faith’ by OrderVox. Unless stated otherwise in a quotation, written quotations are valid for 30 days from the date of their issue, however, some offers and discounts are subject to shorter timeframes. Where this is the case, the Customer will be advised by OrderVox representatives and/or in OrderVox’s sales literature.
   2. The Customer will reimburse OrderVox for any travel, subsistence and living expenses reasonably incurred for the performance of the Services, which OrderVox shall quote and agree in advance with the Customer where such expenses are reasonably foreseeable.
   3. All invoices are due and payable by the Customer (or via a finance provider, where applicable) immediately upon receipt of the applicable invoice. The Customer acknowledges that no Products will be dispatched, and no Services will be provided, until payment of the applicable invoice is received by OrderVox in cleared funds.
   4. Without prejudice to any other right or remedy that OrderVox may have, if the Customer fails to pay OrderVox by the relevant invoice due date, OrderVox may:
      1. charge interest on such sum from the due date for payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;
      2. suspend the provision of the Services (including all of the Customer’s access to the Software); and/or
      3. (where either clause 8 or 9 applies), the Customer shall hold the Products on a fiduciary basis and OrderVox shall be entitled at any time to require the Customer to ‘deliver-up’ the Products to OrderVox and, if it fails to do so, the Customer acknowledges and agrees that OrderVox may enter the Customer’s premises or any third party premises where the Products are stored and repossess the Products.
      4. The standard service offered by OrderVox shall include standard ‘welcome’ setup of the System and remote support (in accordance with the applicable Support Plan). Complimentary implementation training may also be offered and provided by OrderVox to the Customer (subject to availability), which will consist of up to 4 hours of training, email and/or live chat support. Any additional Professional Services, further training, on-site support and/or custom work required will be subject to a professional services fee (which will be quoted on application) at the then current OrderVox day / hour rates. All Professional Services exclude travel, subsistence and living expenses, which shall be invoiced separately in accordance with clause 5.2.
      5. All postage and packaging fees will be charged to the Customer in addition to the fees for the relevant Products and Services at OrderVox’s then current rates.
6. Customer Responsibilities
   1. The Customer will be responsible for installing the Hardware (unless otherwise agreed in writing with OrderVox) and will keep the Hardware in the environmental conditions recommended by OrderVox and ensure that the external surfaces, cables and fittings of the Hardware are kept in good, clean condition.
   2. The Customer will ensure that the Hardware is only used by properly trained staff in accordance with OrderVox’s instructions from time to time. The Customer will ensure that only personnel authorised by OrderVox adjust, modify, configure, maintain, repair, replace or remove any part of the Hardware.
   3. The Customer will maintain adequate records of the use, maintenance and malfunction of the Hardware and will provide OrderVox with such information and assistance concerning the Hardware, its application, use, location and environment as OrderVox may reasonably require to enable it to carry out the Support Plan.
   4. The Customer will immediately notify OrderVox if there is any failure of the Hardware or the System and will allow OrderVox full and free access to the Hardware and all documentation, software, materials and services necessary for the provision of the Support Plan. The Customer will ensure that relevant trained and experienced staff are available when required by OrderVox to provide OrderVox with information required to diagnose and/or repair the issue.
   5. It is the Customer’s sole responsibility to regularly operate and verify a proper back-up routine, maintaining all back-up copies in a secure environment.
   6. The Customer undertakes to put and keep in place adequate security measures and up-to-date firewalls to protect the Hardware, Software and Systems from any viruses, harmful code or unauthorised access. OrderVox shall not be responsible for any unauthorised access to the System by means of hacking, any unauthorised access of the Hardware with intent to commit or facilitate the commission of an offence or any unauthorised modification of the Hardware by a third party.
   7. The Customer is responsible for ensuring that their login password to the OrderVox Systems remains secure and confidential. The Customer should update their password regularly and ‘remember me’ type functions should not be used on publicly available or shared computers.
7. Internet / Network Requirements
   1. OrderVox’s Products require a reliable and robust connection to the internet / local network to take advantage of all of the online features and benefits. It is the Customer’s responsibility to ensure that it has an appropriate internet / local network connection in place prior to installation of the Software and to also ensure that the internet connection is maintained correctly and includes an up-to-date firewall. The recommended internet speeds are a minimum 7Mbps download speed and 0.6Mbps upload speed to support up to four till devices. Larger locations / installations will need higher internet speeds as appropriate to the size of installation and business. This speed requirement does not include any additional internet usage required over and above the OrderVox System such as staff or guest networks or other business requirements. Internet speeds and consistencies can be checked by using internet speed test websites or by contacting the applicable internet service provider.
   2. The Customer must provide a separate physical network or a separate V-LAN for OrderVox systems. This must not be shared with other devices, particularly those that cause high volume, high congestion or unpredictable network loads including (but not limited to) guest networks and music or video streaming devices.
   3. The Customer is solely responsible for any connection charges, line rental charges and call charges in relation to any Products.
   4. Whilst OrderVox representatives may provide advice and an indication of the suitability of the Customer’s internet / local network connection, it remains the Customer’s sole responsibility to ensure it has a suitable internet / local network connection both before and after an order is placed. OrderVox is not responsible for any slow responses to its Systems, including where this is caused by the Customer’s poor internet / local network connection.
   5. Provision of Local Area Network (LAN) infrastructure (e.g. cabling, network switches, WAN router) is the responsibility of the Customer and should be appropriate to the size of business and criticality of the operation.
   6. Where the System is to be used over wifi (e.g. tablets/mobile devices):
      1. the Customer is responsible for the setup, configuration and management of both the wifi infrastructure and the Customer devices. This includes ensuring wifi coverage in required areas and ensuring network dropouts due to wifi roaming are minimised; and
      2. the Customer must consider that wifi is not as robust as a wired network and network dropouts can occur due to wifi coverage, access point roaming, tablet sleep modes as well as other environmental factors. This is not unique to OrderVox Systems and should be considered when selecting a wifi solution
   7. OrderVox Systems are designed to work offline, but where no network connection (LAN or WAN) is available or the network connection is unreliable, some functionality is reduced.
   8. Where Customer devices are used offline for long periods, the Customer must ensure that such devices are regularly (at least every 7 days) connected to the internet to ensure data is synchronised with its servers. All till devices must regularly (at least every 7 days) perform ‘End of Day/Close Till’ operations to ensure that the local data store can be archived to the servers.
8. Hardware as a Service (Monthly Fee: Hardware without up-front costs)
   1. OrderVox offers a monthly fee subscription option for the provision of the Products, whereby it will supply Hardware and/or Software solutions without any upfront cost. This includes CCTV integration. For this option, fees are charged on a monthly basis with a minimum contract term equal to the HaaS Period (“Subscription Contract”).
   2. If the Customer cancels the Subscription Contract within the HaaS Period, or in accordance with clause 8.3.3 below, it must return any Hardware it has received and pay the remaining balance for the remainder of the HaaS Period. This is calculated by multiplying the number of months outstanding by the applicable monthly fee.
   3. At least 90 days prior to the end of the HaaS Period the Customer shall notify OrderVox of its choice to either:
      1. upgrade the Hardware where applicable and continue payment under the Subscription Service at the same rate (unless notified to the Customer by OrderVox from time to time in accordance with these terms). This will be for a further fixed period equal to the HaaS Period. All rights relating to Product warranties and the Swap It service shall continue to apply to the Hardware; or
      2. keep the current Hardware and continue payment under the Subscription Service at the same rate (unless notified to the Customer by OrderVox from time to time in accordance with these terms). The rental of the Hardware under this option shall be on a rolling monthly basis, which may be cancelled at any time by the Customer providing OrderVox with at least one month’s prior written notice. All rights relating to Product warranties and the Swap It service shall continue to apply to the Hardware; or
      3. cancel the Subscription Contract with effect from the end of the Subscription Contract term, and if the Customer fails to notify OrderVox within this 90 day period, clause 8.3.2 shall apply as the default position.
   4. Subject to clause 8.2, either party can terminate the Subscription Contract at any time by providing the other party with at least 30 days’ prior written notice.
   5. For the avoidance of doubt, title to the Products shall not pass to the Customer at any point under the Subscription Contract option and OrderVox will remain the owner of the Products at all times.
   6. The Customer must arrange the safe return of Hardware within 10 Working Days of the end of the Subscription Contract.
   7. If the Products are not returned, after a period of 10 Working Days from the end of the Subscription Contract (or any earlier date where termination takes place during the HaaS Period) that OrderVox has not received the Hardware, OrderVox will charge an additional £25 (ex vat) per item.
9. Product Rental
   1. OrderVox may offer the ability to rent the Products from OrderVox and where this is possible, it will notify the Customer of the rental period, and the applicable fees for that period.
   2. OrderVox will remain the owner of the Products and will retain title in them at all times.
   3. It is the Customer’s responsibility to ensure that the Hardware is maintained and returned in the same condition as it was dispatched.
   4. The Customer must arrange the safe return of Hardware within five Working Days of the end of the rental period.
   5. OrderVox may offer to collect the Hardware, however, it is the Customer’s responsibility to document the cosmetic condition before the Hardware is collected by OrderVox (or OrderVox’s third-party courier).
   6. Upon return of the Hardware, OrderVox will inspect the Hardware and compile a report. Based on the report, a full refund of the deposit may be made, less any adjustments. If the Customer is eligible for a return of the deposit, this payment will be made within 14 Working Days of receiving the returned Hardware.
   7. If the Hardware is returned in a damaged condition where the cost of repair or replacement exceeds the value of the deposit, OrderVox retains the right to invoice the Customer for an additional sum to cover the damage exceeding the value of the deposit. The Customer must pay this sum within 14 days of the date of the applicable invoice.
   8. If the Hardware is not returned after 28 days after the rental period, OrderVox will withhold the entirety of the deposit and invoice the Customer for the remaining value of the Products and any charges outstanding. This must be paid within 14 days of the date of the applicable invoice.
   9. The Hardware rental does not include any ongoing services or consumables (e.g. support, applications or peripheral hardware such as USB scanners), but these are available on request (subject to agreed fees).
10. Annual Software Licence Fee
    1. Unless the Customer has opted to purchase a Support Plan, the Customer will be charged for a Software licence annually
    2. The annual Software licence provides the Customer with:
       1. use of the Software for a minimum 12 calendar months;
       2. maintenance and operating costs of the OrderVox servers; and
       3. selective System updates, improving the running and functionality of the Software
    3. The first year of the Software licence is included within the price of purchasing the Software.
    4. The annual Software licence fee is currently £175 (ex vat) for each point of sale terminal (as updated from time to time).
    5. Payment of the Software licence is due on the anniversary of the original account activation for each point of sale terminal.
    6. The Software licence fee is non-negotiable and is non-refundable in the event that this Agreement is terminated.
    7. The Customer acknowledges and agrees that upon the annual Software licence renewal date, the Customer will be required to upgrade to the then latest version of the OrderVox Software platform.
11. Support Plan
    1. OrderVox offers two optional Support Plans
       1. Standard Support, which shall include:
          1. the annual Software licence fee;
          2. access to the OrderVox support team during Working Hours;
          3. Software updates;
          4. email support;
          5. encrypted backup of transaction data;
          6. warranty upgraded from ‘Return to Base’ to ‘Swap It’ pursuant to clause 15; and
          7. remote training for all Customer staff.
       2. Premium Support, which shall include the contents of the Standard Support Plan and:
          1. 24 hour telephone support; and
          2. priority email support.
    2. Where the Customer has paid for a Standard Support Plan contract and wishes to upgrade to a Premium Support Plan, the remaining term of the Standard Support Plan will be discounted from the Premium Support plan’s payment on a pro rata basis. The Premium Support Plan contract shall continue for at least one year from the date of taking out the Premium Support Plan.
    3. The Customer can choose to either pay the Support Plan annually in advance or on a monthly basis. Where the Customer chooses to pay for the Support Plan on a monthly basis, it must provide recurring payment details either through direct debit or a credit or debit card. Payments are due each month, on the same day of the month that the Support Plan was purchased.
    4. OrderVox will attempt to take the payment each month through its payment providers. Where a payment fails, OrderVox will attempt to take the payment again. If a payment continues to fail, OrderVox retains the right to restrict access to the OrderVox Software for all of the Customer’s licenses, locations and devices until all outstanding payments are made in full.
    5. If the Customer wishes to cancel its Support Plan part-way through the annual contract, it will be liable to pay a charge calculated by multiplying the number of months remaining on the contract by the monthly payment.
    6. OrderVox reserves the right to increase the Support Plan fees at any time upon providing the Customer with at least 30 days’ notice in advance. Should the Customer not agree to the Support Plan fees, the Customer may cancel the Support Plan and receive a pro rata refund for any unused proportion of the Support Plan fees after the effective date of termination that have been paid in advance.
    7. If the Customer has a Support Plan but uses third party hardware, OrderVox will use reasonable endeavours to resolve any software compatibility issues, but any hardware maintenance issues will be the Customer’s sole responsibility.
12. Support Plan Renewal & Cancellation
    1. After one year (and each subsequent year), the Customer’s Support Plan will automatically renew for another year unless the Customer advises OrderVox before the renewal date that it does not wish it to renew.
    2. To continue to use the OrderVox Software after cancellation, the Customer must either pay the annual Support Plan licence fee or sign up to another Support Plan.
    3. OrderVox may also choose to end the Support Plan contract at any time if OrderVox discontinues the Support Plan.
13. ProtectNow Care Plan
    1. OrderVox provisions a care plan subscription for the PRO Product Range which requires one subscription for each individual ‘solution product’. Solution products exclusively include the Lite, Base, Plus and Pro product bundles and the 21.5” Kitchen Display Screen.
    2. Under the care plan you are entitled to a maximum of two instances of accidental damages in each 36 month period, whilst the care plan is still active.
    3. You are not required to purchase any other Support Plan in order to purchase the ProtectNow Care Plan
14. ProtectNow Renewal & Cancellation
    1. OrderVox reserves the right to charge late payment fees in the event of failed payments. This right is at the sole discretion of OrderVox.
    2. If a ProtectNow plan is canceled after the 36 months, it cannot be repurchased for the same devices and all remaining / unused accidental damages rights will be forfeited.
    3. If a customer purchases additional solutions listed in the coverage of the ProtectNow Care Plan these will be covered by a separate 36 months term and will form part of an additional separate contract. The original ProtectNow plan for the other previously purchased device will not see any change to the remaining contract length.
15. Failing to Secure a Payment Plan
    1. If the acceptance requirement is not met or the customer chooses not to proceed with integrated payments the customer will default to a Non-Integrated Payment Premium of £20.00 per month per Pro Solution purchased at the above rate
       1. This payment will be collected monthly using the same payment method as your support payment.
       2. Payments will continue until cancelled within 30 days written notice but are required for the remaining term of your fixed contract.
    2. In the absence of a Support plan or ProtectNow Care Plan being active on the Base plan the Non-Integrated Payment subscription will be taken from the method used at the original point of sale. The payment method can be updated to one of the customers choosing at their written request.
    3. Customers who purchase a Pro Solution with the Payment Premium can upgrade their account at any time:
       1. By securing, activating and integrating a Payments Solution
       2. OrderVox will deduct the Payment Premium Charge multiplied by the number of connected devices. This purchase will be subject to the minimum terms outlined under the Fixed Terms schedule.
16. Delivery of Hardware
    1. Whilst OrderVox takes reasonable care to ensure the Hardware packaging prevents any damage to the Hardware in transit, it is the Customer’s responsibility to check the Hardware before it accepts the Hardware at the time of delivery.
    2. It is the Customer’s responsibility to document, and notify OrderVox of, any defects in the cosmetic condition of the Hardware within 24 hours of receiving the Hardware.
    3. Provided clause 13.2 has been complied with, in the rare occasion that the Hardware is faulty or damaged on arrival, OrderVox will provide the Customer with replacement Hardware.
    4. Whilst OrderVox shall use reasonable endeavours to deliver the Hardware by the date specified in the Customer's order, OrderVox shall not be liable for the delay in delivery from any cause whatsoever and howsoever arising and time shall not be of the essence for delivery.
    5. All deliveries must be signed for by the Customer or its authorised representatives. OrderVox’s third party courier may notify the Customer the timeframe when the Customer should expect the delivery by email and/or text message. It is the responsibility of the Customer to provide OrderVox with the correct address, email and mobile number to benefit from this Service.
    6. It is the responsibility of the Customer to have an appropriate and authorised person available to sign for the delivery of the Hardware. OrderVox is not responsible for any deliveries that cannot be made due to an authorised person not being available to receive the Hardware, or its courier not having access to the delivery location.
17. OrderVox Hardware Warranty
    1. Subject to clause 14.5, in relation to any new Hardware purchased directly from OrderVox, and that is manufactured by OrderVox, OrderVox warrants that such Hardware will be of good, satisfactory quality and free of any material defects for a period of 12 months from the date of the delivery of the Hardware to the Customer.
    2. Subject to clause 14.5, in relation to any refurbished Hardware purchased directly from OrderVox, OrderVox warrants that such Hardware will be of good, satisfactory quality and free of any material defects for a period of 90 days from the date of delivery of the Products, unless it is sold as ‘like new’ where it will have a warranty period of 12 months from the date of the delivery of the Products.
    3. The Customer may choose to purchase an “Extended Warranty” within the Limited Warranty period. This Extended Warranty confers the same rights as the Limited Warranty, but shall apply for a period of three years from the date of the original delivery of the Products to the Customer.
    4. Notwithstanding the above clauses, the warranties stated in this clause 14 shall not apply to:
       1. any third-party hardware. Third-party hardware is any hardware that is not manufactured by OrderVox, or any Hardware which is not branded with the OrderVox name and/or logo;
       2. any Hardware that has been tampered with, repaired and/or modified by non-authorised personnel;
       3. any Hardware where the warranty seals have been broken or altered;
       4. any damage (accidental or other) to the Hardware that is cosmetic (meaning that damage that does not impact the operation and functioning of the Hardware), including rust, change in colour, texture or finish, wear and tear and gradual deterioration;
       5. any damage to the Hardware caused by war, terrorism, fire, accident, natural disasters, intentional or accidental misuse, abuse, neglect or improper maintenance, use under abnormal conditions, accidental drops, spills, or power surges;
       6. any damage to the Hardware caused by improper installation, connection or malfunction of a peripheral device such as a printer, optical drive, network card, or USB device;
       7. any damage to the Hardware through the Customer’s neglect to protect the Hardware, Software or System from viruses;
       8. any damage to the Hardware caused by an external electrical fault or any accident;
       9. fraud, theft unexplained disappearance or wilful acts;
       10. liquid or fluid damage or contamination of any kind; or
    5. If the Customer believes that the Hardware contains a fault that is covered by the warranties provided herein, the Customer must report the issue to OrderVox in writing within the applicable warranty period and, at the Customer’s expense, return the item to OrderVox for inspection. Within 28 days of receiving the Hardware in question, OrderVox will examine the item and if covered by the warranty, at OrderVox’s discretion, OrderVox will either replace the Hardware with one of similar performance and capabilities or repair the Hardware. If a device fails outside of the first 30 days of original purchase, OrderVox retains the right to replace or repair the Hardware with refurbished or remanufactured parts. If OrderVox determines that the Hardware is outside of the warranty rights, OrderVox will, at the Customer’s request, prepare a quote for repair or replacement of the item in question. The Customer can then choose to pay for the repair or replacement or to have its original Hardware returned to it (at the Customer’s expense)
    6. Where OrderVox replaces or repairs Hardware under warranty, or as a chargeable out of warranty service, the repaired or replacement Hardware inherits the remaining warranty period from the original Hardware. If the original Hardware has less than 30 calendar days of warranty remaining, the replacement or repaired Hardware will receive a warranty of 30 calendar days.
    7. If any new Hardware fails within the first 30 days of its original purchase, and is covered by a warranty, OrderVox will replace the device with new Hardware, at OrderVox’s expense.
18. Complaints Procedure
    1. OrderVox endeavours to ensure that all Customers are satisfied with their purchase, however, where problems arise the Customer commits to following the complaints procedure in this clause
    2. If the Customer is not entirely satisfied with the Products and/or Services, its first action should be to contact the OrderVox support team. Contact details are available at www.eposnow.com/uk/contact-us.
    3. If the issue has not been satisfactorily resolved, the Customer should then make a written complaint either by email to info@ordervox.co.uk or by post to: Complaints, OrderVox, 903 Victory Buinsess Centre, Somers Road North, Portsmouth, P01 1PJ.
    4. Written complaints should include full details of the situation and the nature of the Customer’s complaint. Additionally the Customer should ensure that it provides the best contact details to reach them on.
    5. OrderVox will respond to the initial written complaint within two Working Days, confirming that OrderVox has received the Customer’s complaint and advising the Customer of which OrderVox manager will be managing the resolution.
    6. The assigned manager will endeavour to resolve the Customer’s complaint as quickly as possible, working with the Customer to understand all aspects and come up with a proposed resolution where a fault is identified.
    7. Once the proposed resolution is understood, the assigned manager will write to the Customer documenting the resolution and rationale behind the decision.
    8. Should the Customer still not be happy with the resolution provided, the Customer should contact the assigned manager and notify them that it wishes to escalate the complaint further. No claim will be valid unless the Customer firstly follows the above process.
    9. All sales are bound by the terms of this Agreement and OrderVox asks that the Customer read the full Agreement before raising a complaint. Please note that whilst the Customer’s statutory rights are not affected, this is a business-to-business transaction, and is therefore not governed by consumer law (such as the Consumer Rights Act 2015).
    10. Please note: OrderVox does not tolerate any abusive, offensive or inappropriate behaviour or intimidation towards its staff. In the event that the Customer does not treat OrderVox’s staff in a courteous and professional manner at all times, OrderVox reserves the right to cease all correspondence with the Customer and provide this as evidence of non-cooperation and bad faith in any subsequent legal proceedings.
19. Intellectual Property Rights
    1. All Intellectual Property Rights and all other rights in the Products shall vest and remain vested in OrderVox.
    2. All Customer data (including but not limited to transactional data, sales data, product data and stock data) are owned by the Customer.
    3. The Customer hereby provides OrderVox with a non-exclusive, royalty-free, perpetual, irrevocable, transferable, worldwide licence to use the Customer’s transactional data, sales data, product data and stock data that is generated through the OrderVox System for the enhancement of existing services and the provision of new services for OrderVox, its customers and partner organisations. For the avoidance of doubt, any personally identifiable information will be anonymised and/or aggregated.
    4. The Customer acknowledges that it will not acquire any Intellectual Property Rights in the Hardware and that it will have no rights in or to the Intellectual Property Rights in the Software other than as set out in the EULA at Annex A.
    5. The Customer agrees not to remove deface or cover up any name plates, logos or trade marks appearing on the Products.
    6. The Intellectual Property Rights in the Products supplied by OrderVox may be owned by third party suppliers. Where OrderVox notifies the Customer that this is the case, the Customer acknowledges that its use of rights in third party materials may be governed by, and will be conditional upon, the Customer agreeing to an end-user licence (or sub-licence) of such rights directly with the relevant licensor.
    7. PLEASE NOTE: The Customer's historic stock data, which is stored by OrderVox expressly for use in the Stock History report in the back office, will only be stored for one year and it will be deleted at the end of this period. OrderVox recommends that the Customer exports this data from the stock history report from time to time to avoid any loss of data.
20. Liability
    1. This clause sets out the liability of each party under this Agreement and its Annexes.
    2. All warranties, conditions and other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
    3. Nothing in this Agreement limits or excludes the liability of either party for death or personal injury which results from negligence or for any damage or liability incurred by a party as a result of fraud or fraudulent misrepresentation by the other party.
    4. Subject to clause 19.3 and excluding any provisions in this Agreement where an indemnity is provided by either party:
       1. neither party will be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
       2. each party’s total liability to each other party in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising under or in connection with this Agreement will be limited to the price paid or payable for the relevant Products and/or Services provided to the Customer by OrderVox giving rise to such liability.
21. Indemnity
    1. The Customer will indemnify and keep OrderVox and its officers, employees, consultants, agents and sub-contractors indemnified, on demand, against all losses, costs and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by OrderVox arising out of or in connection with any claim in relation to:
       1. the Customer’s content or data on the OrderVox System:
          1. infringing a third party’s Intellectual Property Rights;
          2. accuracy or completeness; and/or
          3. being defamatory, offensive, in breach of privacy or data protection laws or otherwise illegal.
       2. the use of the Products in a manner which causes loss, harm or damage to OrderVox or any third party by the Customer or any third party
22. Termination
    1. Unless stated otherwise herein, no cancellation or variation of an order by the Customer shall be effective unless it is made in writing and accepted in writing by an authorised officer of OrderVox. OrderVox reserves the right to refuse to accept such cancellation or variations or to accept cancellation or variation only subject to such conditions as it considers are warranted according to the circumstances.
    2. Without limiting any other rights or remedies, either party (“Terminating Party”) may terminate this Agreement with immediate effect by providing written notice to the other party (“Defaulting Party”) on or at any time after the occurrence of any of the events specified below:
       1. a breach by the Defaulting Party of its obligations under this Agreement which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 14 days after receipt of notice in writing from the Terminating Party requiring the Defaulting Party to do so; or
       2. an event, including (or similar in nature to) the following:
          1. the Defaulting Party is unable to pay its debts as they fall due;
          2. the Defaulting Party goes into liquidation either compulsorily (except for the purpose of reconstruction or amalgamation) or voluntarily;
          3. a receiver is appointed in respect of the whole or any part of the Defaulting Party;
          4. a provisional liquidator is appointed to the Defaulting Party or the Defaulting Party enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors or has a winding-up order or passes a resolution for the voluntary winding-up or has an administrative receiver appointed or takes steps towards any such event; or
          5. the Defaulting Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
       3. OrderVox may terminate this Agreement with immediate effect if it reasonably believes that the Customer has infringed or will infringe OrderVox’s rights or the rights of a third party.
       4. If this Agreement terminates for any reason, notwithstanding any other provision, OrderVox shall have no obligation to refund the Customer and all charges payable by the Customer to OrderVox under this Agreement will become due and payable immediately. This clause is without prejudice to any right by OrderVox to claim for interest or any other right under this Agreement.
       5. The Customer’s data stored within the OrderVox System shall be available for the Customer to download for a period of 30 days from the effective date of termination. After this period, the Customer’s data shall not be recoverable by or for the Customer and may be deleted by OrderVox.
       6. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
23. Force Majeure
    1. Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure results from circumstances which could not reasonably be contemplated at the time of entering into this Agreement and which are beyond the parties’ reasonable control (including, without limitation, an act of God, strikes, lock-outs or other industrial disputes (involving the workforce of OrderVox), failure of a utility service or transport network, war, riot, civil commotion, terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm or default of suppliers or sub-contractors). If a force majeure event continues for a period of 30 days or more, either party may terminate this Agreement immediately by providing the other party with written notice.
    2. As per schedule 27.1, OrderVox withhold the right to delay order deliveries by up to 30 days in the event of force majeure.
24. Referrals
    1. OrderVox may provide the Customer with incentives (“Offer”) for the Customer to make referrals to relating to the OrderVox Services and/or Products to third parties from time to time (“Referral”).
    2. The terms of the Offer shall be documented by OrderVox on the relevant web page or document detailing the Offer. Notwithstanding, any referral activity that has been formally pre-authorised by OrderVox in the form of an Offer shall be governed by this clause 25
    3. To provide Referrals, the Customer may be permitted by OrderVox to generate a shareable URL / link from its account within the Software. This link may then be provided by the Customer to third parties. When the third party follows the link and successfully purchases the relevant OrderVox Services and/or Products detailed in the Offer, the Customer may be entitled to the incentive detailed in the Offer. To be a valid Referral, the relevant purchase of OrderVox Services and/or Products must be made without any cancellation of the order within a period of one month.
    4. No incentive or referral fees will be payable to the Customer where the Customer has any fees or other charges outstanding.
    5. We may share certain personal data with third parties to fulfil these rewards in accordance with our Privacy Policy.
25. Miscellaneous
    1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
    2. It may be necessary for OrderVox to update this Agreement and its terms from time to time. If the Customer continues to use OrderVox’s services after OrderVox has informed the Customer of any updated version of this Agreement, the Customer will be deemed to have accepted these changes and they will be incorporated into this Agreement.
    3. Subject to clause 27.2, no variation of this Agreement will be effective unless it is in writing and signed by both parties.
    4. The Customer is responsible for informing OrderVox of any changes to their contact details.
    5. Please note that OrderVox may record phone calls that we receive from the Customer for training purposes.
    6. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.
    7. The Customer may not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement without the prior written consent of OrderVox. OrderVox may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
    8. All notices must be in writing and will be deemed given when mailed by registered or certified mail, return receipt requested, to the other party’s main business address. Serving notice by email or fax will not be accepted as an effective method of providing notice of a claim under this Agreement.
    9. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms. The Customer and OrderVox hereby waive their rights (i) to sue before a jury (where applicable); or (ii) to participate in a class action, class-wide arbitration (where applicable), private attorney general action, or any other proceeding in which a party acts in a representative capacity.
    10. Nothing in this Agreement is intended to, or will be deemed to establish any partnership or joint venture between the parties, make a party the agent of the other party or authorise a party to make or enter into any commitments for or on behalf of the other party.
    11. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
    12. This Agreement is governed by English law and the parties agree to irrevocably submit to the exclusive jurisdiction of the English courts.

ANNEX A: OrderVox Software End User License Agreement (“EULA”)

PLEASE READ THIS EULA CAREFULLY BEFORE USING ANY OrderVox SOFTWARE. BY USING ANY OrderVox SOFTWARE YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT USE THE SOFTWARE.

1. Application of this EULA
   1. This EULA incorporates and supplements the OrderVox Terms & Conditions (General Terms and Conditions of Trading with OrderVox) (“Agreement”) as updated from time to time. In the event of conflict between the terms of this EULA and the OrderVox Terms & Conditions, the OrderVox Terms & Conditions will prevail.
2. General Use
   1. The Software, Systems, interfaces, content, fonts, documentation and any data that is provided by OrderVox to the Customer under its Software licence (as may be updated or replaced by Software updates or System restore software provided by OrderVox whether in read only memory, on any other media or in any other form) are licensed to the Customer (for the number of licences purchased only) on a non-exclusive, revocable, non-transferable basis for the Customer to make reasonable use of the OrderVox System under the terms of this Agreement and not for any other purpose.
   2. OrderVox retains ownership of the Software and reserves all rights not expressly granted to the Customer
   3. OrderVox, at its discretion, may make available future updates to the Software for the Customer’s Epos System.
   4. The Customer shall carry out regular back-ups to removable media stored separately from the supported items and carry out other normal system housekeeping routines (disc defragging etc). OrderVox shall not be liable for any loss or damage sustained or incurred by the Customer or any third party through loss or corruption of data resulting from any maintenance activity by OrderVox required or performed under this Agreement. OrderVox will use reasonable endeavours rectify any such loss of data or programs, but reserves the right to charge for such services.
   5. The Customer remains solely responsible for implementing adequate and industry standard virus protection measures to all parts of the OrderVox System.
   6. Any additional software which is downloaded by the Customer, which is not already pre-installed on the System, is solely done at the Customer’s risk.
   7. The Customer is responsible for keeping the Software up-to-date and must accept automatic updates to the Software at all times. The Customer is responsible for keeping the operating system up-to-date with available patches and upgrades at all times.
   8. From time to time OrderVox will deprecate older operating system versions, supporting Software or Hardware minimum specifications. OrderVox will use reasonable endeavours to give 60 days’ notice in such circumstances and after this period the Customer must move away from any such deprecated Hardware, Software and/or operating systems at the Customer’s expense.
3. Permitted Software licence uses and restrictions
   1. Each Software licence allows the Customer to use the Software on the specific point of sale terminals requested by the Customer at the point of purchase.
   2. Each licence does not allow the Software to exist on more than one point of sale terminal, and the Customer must not make the Software available over a network where it could be used by multiple devices or multiple computers at the same time, unless otherwise agreed in writing by OrderVox.
   3. This EULA does not grant the Customer any rights to use OrderVox proprietary interfaces or any other Intellectual Property Rights in the design, development, manufacture, licensing or distribution of third party devices and accessories for use with the OrderVox System. Except as and only to the extent expressly permitted in this EULA or by applicable law, the Customer must not copy, decompile, reverse engineer, disassemble, and attempt to derive the source code of, decrypt, modify, or create derivative works of the Software (or any updates), the OrderVox Systems, or any part thereof. Any attempt to do so is a violation of the rights of OrderVox. If the Customer breaches this restriction, it may be subject to prosecution and damages.
   4. The Customer may not rent, lease, lend, charge, redistribute or sub-license the OrderVox Software or Software updates.
4. Termination
   1. This EULA is effective until terminated in accordance with the Agreement. The Customer’s rights under this EULA will terminate automatically without notice from OrderVox if the Customer fails to comply with any term(s) of this EULA. Upon the termination of this EULA the Customer’s Software will be restricted