KELLY ENERGY LTD TERMS AND CONDITIONS
“Customer”, “you”, or “your”: the person who purchases the Product from Us;
“Order”: the Customer’s order for the Product;
“Product(s)”: the product(s) set out in an Order;
“Terms”: the terms and conditions set out below;
“We”, “us”, or “our”: Kelly Energy Ltd;
2. THE CONTRACT
2.1 These Terms together with an accepted Order comprise your agreement (the “Contract”) with us. You agree that the Product(s) will be supplied in accordance with the provisions of the Contract, to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by custom, practice or through course of dealing. You confirm that you have reviewed the Contract and will comply fully with the terms thereof.
2.2 Your Order constitutes an offer by you to purchase the Product in accordance with these Terms. You are responsible for ensuring that the terms of the Order are complete and accurate. Our acceptance of your Order will take place when you receive an email from us, at which point the Contract will come into existence.
2.3 If we are unable to accept your Order, we will inform you of this and will not charge you for the Product. This might be because of the Product is out of stock, because of unexpected limits on our resources which we could not reasonably plan for, because we have identified an error in the price or description of the Product or because we are unable to meet a delivery deadline you have specified. If we are unable to accept your Order we will not process your Order and will refund you the full amount paid (if any) as soon as possible.
2.4 Any samples, drawings, descriptive matter or advertising produced by us are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the Contract nor have any contractual force.
2.5 The Product has pre-installed software and such software has been provided or otherwise made available to you for use with the Product (the “Software”). By purchasing the Product which includes the Software you are also subscribing to a Licence to use the Software. By using the Product or running or otherwise using the Software you are agreeing to be bound by the Terms. We reserve the right to modify and upgrade the Software that you access remotely from time to time.
2.6 Your attention is particularly drawn to clause 9 of these Terms.
3. YOUR CONSUMER RIGHT OF RETURN AND REFUND
3.1 You have the right to cancel the Contract within 14 days without giving any reason.
3.2 The cancellation period starts from the moment you place an Order for a Product and ends 14 days from the day on which you acquire physical possession of the Product.
3.3 To exercise the right to cancel, you must inform us of your decision to cancel this Contract by a clear statement e.g. a letter sent by post or email or by telephone. Our contact details are as follows: Kelly Energy Ltd of Kelly House, Fourth Way, Wembley, HA9 0LH; EVcharging@kelly.co.uk.; or +44 (0) 0207 240 8000 .
3.4 To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired.
3.5 We are under a legal duty to supply Product(s) that are in conformity with the Contract. The Product must be as described, fit for purpose and of satisfactory quality. If it is not and the 14-day cancellation period has expired you may have a statutory right to a refund, repair or replacement.
4.1 Subject to clause 4.3, we warrant that on delivery, and for a period of 36 months from the date of delivery (Standard Warranty Period), the Product shall:
4.1.1 conform with its description and any applicable specification as set out in the Order;
4.1.2 be free from material defects in design, material and workmanship;
4.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
4.1.4 be fit for any purpose held out by us.
4.2 The Product has the benefit of a full parts and labour guarantee, which covers the cost of breakdown repairs for 36 months from the date of purchase. This gives you the reassurance that if, within that time, the Product is proven to be defective because of either workmanship or material defect we will, at our discretion, either repair or replace the Product at no cost to you.
4.2A You have the option to purchase a 24-month extended warranty (Extended Warranty Period).
4.3 The warranties referred to in clauses 4.1 and 4.2 do not apply to any defect in the Product arising from:
4.3.1 fair wear and tear;
4.3.2 wilful damage, abnormal storage or working conditions provided by you, accident, negligence by you or by any third party (including, but not limited to, if you have used the Product for charging anything other than an electric vehicle);
4.3.3 your failure to operate or use the Product(s) in accordance with the user instructions;
4.3.4 any installation, alteration or repair by you or by a third party who is not a recommended Kelly Energy Ltd installer or repairer. For the avoidance of doubt, any attempt to open the Product by anyone other than us or our appointed agent will invalidate the warranties referred to in clauses 4.1 and 4.2 above);
4.3.5 the Product being used on a different electricity supply which is not printed on the rating plate;
4.3.6 any specification provided by you;
4.3.7 a defect or fault in the Software that results from you having altered or modified the Software or used the Software in breach of the terms of the Licence.
4.4.1 you give us notice in writing during the Standard Warranty Period (and, if applicable, during the Extended Warranty Period) within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in either clause 4.1 or 4.2;
4.4.2 we are given a reasonable opportunity of examining the Product; and
4.4.3 you (if asked to do so by us) return the Product to our place of business at our cost, we shall, at our option, repair or replace the defective Product, or refund the price of the defective Product in full. For the avoidance of doubt, any parts removed during repair work or any charger that is replaced shall become our property.
4.5 You agree to provide us and all other persons duly authorised by us with access, including remote access, to your premises and the Product in order to perform the services during the Standard Warranty Period (and, if applicable, the Extended Warranty Period).
5. EFFECTS OF CANCELLATION
5.1 If you cancel the Contract under clause 3, we will reimburse to you all payments received from you in accordance with this clause 5.
5.2 We may make a deduction from the reimbursement for loss in value of any Products supplied, if the loss is the result of unnecessary handling by you.
5.3 We will make the reimbursement without undue delay, and not later than:
5.3.1 if you have received the Product and we have not offered to collect it from you: 14 days after the day we receive back from you any Product supplied, or (if earlier) 14 days after the day you provide evidence that you have returned the Product; or
5.3.2 if you have not received the Product or you have received it and we have offered to collect it from you: 14 days after you inform us of your decision to cancel the Contract.
5.4 We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement.
5.5 We may withhold the reimbursement until we have received the Product back or you have supplied evidence of having sent back the Products, whichever is the earliest.
5.6 You shall send back the Products or hand them over to us, without undue delay and in any event not later than 14 days from the day on which you communicate your cancellation from this Contract to us. The deadline is met if you send back the Products before the period of 14 days has expired.
5.7 You will have to bear the direct cost of returning the Products unless the Product is faulty or mis-described. You are only liable for any diminished value of the Products resulting from the handling other than which is necessary to establish the nature, characteristics and functioning of the Products.
6.1 The Order will be fulfilled by the estimated delivery date detailed in the Order unless we contact you and agree a revised estimated delivery date.
6.2 Delivery will be completed when we deliver and install the Product to the address you gave us at which point the Product will become your responsibility.
6.3 You will only become the owner of the Products once we have received payment in full.
6.4 If we miss the estimated delivery date for a Product then you may cancel the Order straight away if any of the following apply:
6.4.1 we have refused to deliver the Product;
6.4.2 delivery by the delivery date was essential (taking into account all the relevant circumstances); or
6.4.3 you told us before we accepted your Order that delivery within the delivery deadline was essential.
6.5 If you do not wish to cancel the Order straight away, or do not have the right to do so under clause 6.4, you can give us a new deadline for delivery, which must be reasonable, and you can cancel the Order if we do not meet the new deadline.
6.6 If you do choose to cancel the Order for late delivery under clause 6.4 or clause 6.5, you can do so for just some of the Products or all of them, unless splitting them up would significantly reduce their value. If the Products have been delivered to you, you will have to return them to us or allow us to collect them, and we will pay the costs of this. After you cancel the Order we will refund any sums you have paid to us for the cancelled Products and their delivery.
7. PRICE OF PRODUCTS
7.1 The prices will be as set out in the Order.
7.2 The price of the Product includes VAT at the applicable current rate chargeable in the UK for the time being.
7.3 Prices are checked regularly. If we discover an error in the price of an Order we will contact you to inform you of this error and give you the option of continuing to purchase the Product at the correct price or cancelling the Order. If we are unable to contact you using the contact details you provided during the Order process, we will treat the Order as cancelled and notify you in writing. If the pricing error is obvious, unmistakeable and could have reasonably been recognised by you as a mispricing, we do not have to provide the Product to you at the incorrect (lower) price.
8. DATA PROTECTION
9. OUR LIABILITY IF YOU ARE A CONSUMER
9.1 If we fail to comply with these Terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breach of these Terms or our negligence or our failing to use reasonable care and skill but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it is either obvious that it will happen or if, at the time the Contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process.
9.2 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of your legal rights in relation to the Products or a Licence including the right to receive Products / a Licence which are: as described and match information we provided to you and any sample or model seen or examined by you; of satisfactory quality; fit for any particular purpose made known to us; supplied with reasonable skill and care and, where installed by us, correctly installed; and for defective products under the Consumer Protection Act 1987.
9.3 We only supply the Products to you, including the Software, for domestic and private use. You agree not to use the product for any commercial, business or resale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
9.4 You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software meet your requirements.
9.5 Subject to clause 9.2, our total liability to you in respect of all losses arising under or in connection with the Contract, including the Licence, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Products purchased by you in the prior 12 months.
10. TERMINATION AND SUSPENSION
10.1 If you become subject to any of the events listed in clause 10.2, we may terminate the Contract with immediate effect by giving written notice to you.
10.2 For the purposes of clause 10.1, the relevant events are:
10.2.1 you suspend, or threaten to suspend, payment of your debts, or are unable to pay your debts as they fall due or admit inability to pay your debts, or (being a company or limited liability partnership) are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) are deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
10.2.2 you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors;
10.2.3 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up, other than for the sole purpose of a scheme for your solvent amalgamation with one or more other companies or your solvent reconstruction;
10.2.4 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over you;
10.2.5 (being a company) the holder of a qualifying floating charge over your assets has become entitled to appoint or has appointed an administrative receiver;
10.2.6 a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets;
10.2.7 (being an individual) you are the subject of a bankruptcy petition or order;
10.2.8 your creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 days;
10.2.9 any event occurs, or proceeding is taken, in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2.1 to clause 10.2.8 (inclusive);
10.2.10 you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business;
10.2.11 your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy; and
10.2.12 (being an individual) you die or, by reason of illness or incapacity (whether mental or physical), are incapable of managing your own affairs or becomes a patient under any mental health legislation.
10.3 Without limiting our other rights or remedies, we may suspend provision of the Products and/or Licence under the Contract or any other contract between us if you become subject to any of the events listed in clause 10.2.1 to clause 10.2.12, or we reasonably believe that you are about to become subject to any of them, or if you fail to pay any amount due under this Contract on the due date for payment.
10.4 On termination of the Contract for any reason you shall immediately pay to us all of our outstanding unpaid invoices and interest.
10.5 Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
10.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
11. SOFTWARE LICENCE
11.1 We have procured a licence for you to use the Software on the basis of the licence in this clause 11 (“Licence”). We do not sell the Software to you.
11.2 In consideration of your payment of the price as detailed in the Order we have procured a non-exclusive, non-transferable licence to use the Software in the United Kingdom on the terms of this Licence.
Except as expressly set out in this Licence or as permitted by any local law, you undertake:
11.3.1 not to copy the Software except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security;
11.3.2 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software;
11.3.3 not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
11.3.4 not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:
- is used only for the purpose of achieving inter-operability of the Software with another software program;
- is not disclosed or communicated without our prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
- is not used to create any software which is substantially similar to the Software.
11.3.5 to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
11.3.6 to supervise and control use of the Software and ensure that the Software is used by your employees and representatives in accordance with the terms of this Licence;
11.3.7 to include the copyright notice on all entire and partial copies of the Software in any form;
11.3.8 not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person other than your employees without prior written consent from us; and
11.4 Intellectual property rights
11.4.1 You acknowledge that all intellectual property rights in the Software throughout the world belong to the owner, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software other than the right to use them in accordance with the terms of this Licence.
11.4.2 You acknowledge that all intellectual property rights in the Software throughout the world belong to the owner, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software other than the right to use them in accordance with the terms of this Licence.
11.4.3 You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.
11.5 Limited Warranty
We warrant that for the Standard Warranty Period (and, if applicable, the Extended Warranty Period) the Software will, when properly used and on an operating system for which it was designed, perform substantially in accordance with the functions described.
11.6.1 We may terminate this Licence immediately by written notice to you if you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so.
11.6.2 Upon termination for any reason:
- all rights granted to you under this Licence shall cease;
- you must cease to use the Products and all activities authorised by this Licence; and
- you must immediately delete or remove the Software from all computer equipment in your possession and immediately destroy or return to us (at our option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
12. EVENTS OUTSIDE OUR CONTROL
12.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event beyond our reasonable control.
12.2 If an event beyond our reasonable control takes place that affects the performance of our obligations under the Contract:
12.2.1 we will contact you as soon as reasonably possible to notify you and our obligations under the affected Contract will be suspended and the time for performance of our obligations will be extended for the duration of such an event. If our delivery to you is affected, we will arrange a new delivery date with you once the event is over;
12.2.2 if such an event continues for more than 30 days, you may cancel the affected Contract. To cancel please contact us. Details of how to contact us are set out in clause 3.3. If you opt to cancel, you will have to return (at our cost) any relevant Products you have already received and we will refund the price you have paid, including any delivery charges.
13. COMMUNICATIONS BETWEEN US
13.1 Any notice or other communication given by you to us, or by us to you, under or in connection with the Contract shall be in writing and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service or email.
13.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at our registered office; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting or if sent by email, one working day after transmission.
13.3 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
13.4 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14. OTHER IMPORTANT TERMS
14.1 We may transfer our rights and obligations under the Contract to another organisation, but this will not affect your rights or our obligations under these Terms.
14.2 You may only transfer your rights or your obligations under these Terms to another person if we agree in writing.
14.3 This Contract is between you and us. No other person shall have any rights to enforce any of its terms.
14.4 Each of the clauses of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining clauses will remain in full force and effect.
14.5 If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
14.6 Please note that these Terms are governed by English law. This means that this Contract for the purchase of Products and any dispute or claim arising out of or in connection with it will be governed by English law. You and we both agree to that the courts of England and Wales will have non-exclusive jurisdiction. However, if you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are a resident of Scotland, you may also bring proceedings in Scotland.