Elara Conditions of Sale
27th June 2016
Please read this agreement carefully. It contains important clauses which impose obligations on you and which limit or exclude Elara’s liability to you.
1. The Agreement
1.1 These Terms and Conditions of Sale (together with all documents referred to on it) (together, called the “Agreement”) tells you the terms and conditions on which Elara supplies any services and/or Products listed on Elara’s website from which you can access this page including, in particular, www.elara.ie (called the “Website”) and/or purchased via the Customer Sales Centre.
1.2 For your reference previous versions of the Agreement are available at https://www.elara.ie/oldtnc.html.
1.3 You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of Elara which is not set out in this Agreement. Nothing in this clause 1.3 excludes or limits Elara’s liability for fraudulent misrepresentation.
1.4 The Agreement (including any documents referred to in it) may be revised from time to time by Elara. Therefore, the Agreement (including any documents referred to in it) should be read carefully before ordering Products from Elara each time you intend to make a purchase.
1.5 In this Agreement, “you” and “your” means both you and/or the person, organisation or entity on whose behalf you are acting. The meaning of other capitalised terms and expressions used in the Agreement are set out in clause 25.
2. Information about us
2.1 This Website and the Customer Sales Centre is operated by Extreme Computers Limited t/a Elara Online (called “Elara”, which expression includes our successors and assigns).
2.2 Elara is a company with limited liability registered under the laws of Ireland with registered number 413151 and registered office at
The Chase, Arkle Road,
Sandyford Business Park
This is also Elara’s main trading address. Elara’s VAT number is IE 6433151O. Elara contact details are:
The Chase, Arkle Road,
Sandyford Business Park
Tel: +353 1 6251320
Fax: +353 1 6251321
2.3 We have tried to make this Agreement clear and easy to understand. But if you have any queries or complaints please write to us, call us or email us.
3. Serviced Countries
3.1 This Website and the Customer Sales Centre is intended for use only by persons legally resident in Ireland (excluding Northern Ireland) and Elara only accepts orders from persons who are legally resident in Ireland (excluding Northern Ireland).
4. Acceptance of Agreement
4.1 Please read the Agreement (including any documents referred to in it) carefully before ordering any Products from Elara. You acknowledge and agree that by clicking “I Accept” and/or ordering any Products from Elara, you (including any person, organisation or entity on whose behalf you are acting) agree to be legally bound by the Agreement (including any documents referred to in it) and confirm your understanding of it.
4.2 If you refuse to accept the Agreement (or any part of it), you will not be able to order any Products from Elara.
4.3 If you are making an order via the Customer Sales Centre, a copy of this Agreement will be sent to you by e-mail and you (including any person, organisation or entity on whose behalf you are acting) will be deemed, with effect from the time the order was submitted, to have agreed to be legally bound by and confirmed your understanding of this Agreement (including the any documents referred to in it), except if you cancel the Contract. Any cancellation of the Contract must be undertaken in accordance with clause 4.4 or clause 9
4.4 Without limiting your rights under clause 9 (Consumer right of cancellation), if you make an order via the Customer Sales Centre, you may cancel the Contract or order within one (1) day of your receipt of the Agreement through your e-mail account.
4.5 Elara recommends that you print or save a copy of the Agreement (including any documents referred to in it) for future reference.
5. Customer status
5.1 By placing an order through the Website or the Customer Sales Centre, you agree and warrant that:
(a) you are legally capable of entering into this Agreement and on behalf of any person, organisation or entity on whose behalf you are acting;
(b) you are legally resident in Ireland and, if a natural person, are at least eighteen (18) years old;
(c) the information you provide to Elara for the purpose of ordering Products or services is complete and accurate;
(d) you are legally and fully entitled to use any credit card or debit card furnished for the purpose of making a purchase and sufficient funds are available on the relevant card to cover the cost of purchases by you; and
(e) if you are acting on behalf of a business, company or organisation, such business, company or organisation is sufficiently creditworthy and able to cover the cost of purchases by you.
5.2 Any breach by you of clause 5.1 will entitle Elara to immediately terminate the Agreement and any Contract by notice to you and without any liability to you whatever.
6. How to order
6.1 Orders can be placed via the Website. Orders can also be placed (and, if applicable, any order input errors can be corrected) by calling the Customer Sales Centre.
6.2 After placing an order, you will receive an e-mail from Elara acknowledging that Elara has received your order and confirming the price, delivery charge and specification of the Product order. Please note that this does not mean that your order has been accepted by Elara. Your order constitutes an offer from you to Elara to buy a Product subject to this Agreement.
6.3 All orders are subject to acceptance by Elara and availability. Elara will confirm its acceptance of your order by sending you an e-mail that confirms that your order has been accepted (which e-mail is called the “Purchase Confirmation”) and not otherwise. A legally binding contract between Elara and you (called the “Contract”) will only be formed when Elara sends you the Purchase Confirmation. If you place your order via the Website the Purchase Conformation will contain a link to a copy of this Agreement.
6.4 The Contract will relate only to those Products identified in the Purchase Confirmation. Elara is not obliged to supply any other Products which may have been part of your order until acceptance of your order in this respect has been confirmed in a separate Purchase Confirmation.
6.5 Elara accepts no responsibility and will not be liable in any way to you if the Products ordered are unavailable or if an order is rejected, not accepted or not rejected.
6.6 Products ordered by you are specially ordered and, in some cases, custom built. Accordingly, an order or Contract for Products may not be cancelled, revoked or terminated by you except as expressly provided in this Agreement or, in specific cases, with Elara’s prior written consent. An attempted revocation of an order will only be effective if Elara confirms its receipt of, and agreement to, the revocation within one (1) business day of the notification first being sent.
6.7 Please note that no terms or conditions endorsed on, delivered with or contained in your order, confirmation of order, specification or other document or communication supplied by you form part of this Agreement or any Contract as a result of such document or communication being referred to in the Contract or otherwise.
6.8 This Agreement prevails over any terms and conditions put forward by you and no conduct of Elara constitutes acceptance of any terms or conditions put forward by you (unless Elara expressly agrees to them in writing by express reference to this clause).
7. Description of Products
7.1 You are solely responsible for using your skill and judgement to choose the Products (and their specification) which are suitable for your purposes and needs and ensuring that they are compatible with any other products or systems you have.
7.2 The Products supplied (except CBS Products) are generally manufactured by a third party manufacturer and resold by Elara in accordance with the manufacturer’s standard specifications, as these are revised by the manufacturer from time to time. Elara accordingly reserves the right to supply Products with a different specification to that ordered where the ordered Product is unavailable to Elara provided that the supplied Product has equivalent functionality, performance and price to that ordered. If you exercise your right of cancellation in accordance with clause 9 in respect of any equivalent Product so supplied, Elara will bear the cost of returning the Product.
7.3 Elara will supply Products to you subject to, and in accordance with, this Agreement and the relevant Contract. The quantity, specifications and description of the Products is as set out in the Purchase Confirmation.
7.4 All samples, drawings, descriptive matter, specifications and advertising issued or made available by Elara and any descriptions or illustrations contained in Elara’s catalogues, brochures or on the Website are issued or published for the sole purpose of giving an approximate idea of the Products described in them. They do not form part of the Contract and this is not a sale by sample.
8. Elara’s Status
8.1 Please note that in some cases, Elara may accept orders as agent on behalf of third party resellers. The resulting legal contract in such cases is between you and the relevant third party reseller (and not between you and Elara), and is subject to the terms and conditions of the relevant third party reseller. The third party reseller will advise you of their terms and conditions directly. Elara recommends that you read any third party reseller’s terms and conditions carefully before proceeding with an order.
8.2 Elara will notify you if and when Elara accepts orders as an agent on behalf of a third party reseller. Where Elara acts as an agent, Elara may disclose your information which relates to an order to the relevant third party reseller in connection with the order. In such circumstances, you consent and agree to such information (which may include your personal information) being shared with the third party reseller.
8.3 Elara may also provide links on this Website to the websites of other companies and persons, whether affiliated with Elara or not. Elara does not give any undertaking or assurance whatsoever that any products or services purchased from third party resellers through this Website, or from companies or persons to whose website Elara has provided a link on this Website, will comply with the terms of any third party reseller’s contract, will be fit for purpose, of merchantable quality and/or match its description. Any such warranties and any other terms, conditions and/or warranties expressed or implied by common law, statute or otherwise are expressly disclaimed and excluded by Elara.
8.4 The disclaimer in clause 8.3 does not affect your statutory rights against the third party reseller.
9. Consumer right of cancellation
9.1 If you are ordering Products as a Consumer, you have a right to cancel your order in accordance with this clause 9.
9.2 Subject to clauses 9.3, 9.4 and 9.5, if you are a Consumer you may cancel the relevant Contract at any time within fourteen (14) days beginning on the day after you received the Products (the “cooling off period”) without giving us any reason for the cancellation. If you intend to cancel a Contract in accordance with this clause 9.2 you must inform Elara of your decision to cancel that Contract by an unequivocal statement. You may do so by sending an e-mail attaching your completed Model Cancellation Form to firstname.lastname@example.org, by posting a letter of your completed Model Cancellation Form to the Elara address provided at clause 2.2 above, or by completing and submitting the Model Cancellation Form online at https://www.elara.ie/members/return.aspx within the cooling off period. When contacting Elara to cancel you may use the Model Cancelation Form at the bottom of this page but it is not obligatory.
9.3 It is sufficient for you to send your communication concerning your exercise of the right to cancel before the cooling off period has expired, however Elara will require proof of this date to verify that any cancellation is within the given cooling off period.
9.4 You must, in any case, return the Product to Elara, at your sole risk and cost (except where provided in clause 7.2) in the same condition in which you received it, together with all relevant packaging, without undue delay and no later than 14 days from the day on which you informed Elara of your cancellation of the Contract in order that Elara can resell it. You shall return the Product to the Elara address provided at clause 2.2 above.
9.5 You must take reasonable care of the Products prior to returning them and are liable for any diminished value of the Products resulting from the handling of the Products beyond that necessary to establish their nature, characteristics and functioning.
9.6 If you cancel a Contract in compliance with clause 9.2, Elara will reimburse you in respect of any sums paid by you to Elara in accordance with Elara’s Returns Policy detailed in clause 18. Elara may withhold reimbursement until Elara has received the Products from you or you have supplied evidence of having sent back the Products, whichever Elara receives first.
9.7 You do not have a right of cancellation pursuant to this clause 9 if:
(a) the relevant Products were made to your specifications or were clearly personalised or, by reason of their nature, cannot be returned or are liable to deteriorate or expire rapidly;
(b) the relevant Products are audio or video recordings, computer software or any other intangible digital product and were unsealed by you; and/or
(c) you are contracting or making an order for or on behalf of a business, company or other commercial entity.
9.8 Elara reserves the right to take action against you if the Product returned has, whilst in your possession or control, become unfit for resale or damaged or you have not returned the Product and all relevant packaging included in or with the Product when it was delivered to you.
10. Time is not of the essence
10.1 Any dates or times specified by Elara for procurement and/or delivery of the Products are an estimate only and time for supply of Products is not, and may not be made by notice, of the essence of this Agreement. A guide to Elara’s estimated procurement and delivery times is set out at https://www.elara.ie/delivery.aspx.
10.2 Elara will use reasonable efforts to supply Products pursuant to a Contract within the estimated date specified in the Purchase Confirmation or, if no date is specified, within a reasonable period which, if you are a Consumer (but not otherwise) will be no more than thirty (30) days from the date you submitted your order (unless otherwise agreed between you and Elara).
10.3 You are not, subject to clause 10.4, entitled to terminate a Contract by reason of the failure of Elara to supply Products by the estimated supply date and Elara is not liable to you for any losses whatever caused by such failure.
10.4 If you are a Consumer and the delivery date cannot be met, and the revised delivery date is more than thirty (30) days from the date of the Purchase Confirmation, you can cancel the Contract without charge and obtain a full refund if you notify Elara, within two (2) days of being informed of the new delivery date, that you are not happy with the revised delivery date.
11.1 Elara will deliver the Products during normal business hours to the address (in Ireland) designated by you and during the period designated by Elara, as confirmed in the Purchase Confirmation (“Delivery Point”). While Elara will endeavour to meet any request by you in relation to the period during which the Product is to be delivered, the period during which, and the exact time of delivery, is at the discretion of Elara.
11.2 You must take delivery, and make all arrangements necessary to take delivery, of the Products when they are made available by Elara (or its agent) at the Delivery Point during the period for delivery confirmed in the Purchase Confirmation.
11.3 Delivery is deemed to take place on and from when the Products are made available by Elara (or its nominee) at the Delivery Point. Elara may deliver the Products at any reasonable time before or after the quoted delivery date and time, subject to prior notification.
11.4 Elara may, for practical reasons, deliver the Products to you by separate instalments and will notify you accordingly if this is the case. If you have not paid in advance, each separate instalment will be invoiced and paid for in accordance with the provisions of the Contract.
11.5 Each instalment is a separate Contract and no cancellation or termination of any one Contract relating to an instalment entitles you to repudiate or cancel any other Contract or instalment.
11.6 You must examine the Products immediately upon receipt of them and notify Elara promptly of any mis-delivery.
11.7 Elara is not liable for non-delivery of, or damage to, the Products where the Products, by prior agreement between you and Elara, are carried by you or by a carrier on your behalf.
11.8 Elara is not liable for:
(a) any non-delivery of Products unless you give written notice to Elara of the non-delivery within forty eight (48) hours of the date of delivery;
(b) delivery of the wrong Product or Product with an incorrect specification unless you give written notice to Elara of the mistake within seven (7) days of the date of delivery; and
(c) any damaged Products unless you give written notice to Elara of the damage within forty eight (48) hours of the date and time of delivery or, if the damage was not apparent to the naked eye, the date and time at which the damage became first become apparent.
11.9 Any liability of Elara for non-delivery of, or delivery of damaged or incorrect, Products is limited, at Elara’s discretion, to:
(a) delivering or replacing the relevant Products within a reasonable time;
(b) issuing a refund or reduction in price, as appropriate; or
(c) where the relevant Products were purchased on credit, issuing a credit note at the pro rata Contract rate against any invoice raised for such Products.
11.10 If you refuse or fail to take delivery of Products delivered in accordance with the Agreement and a Contract or fail to take any action necessary by you for delivery or receipt of the Products, the Products are deemed to have been delivered by Elara and Elara is entitled to:
(a) dispose of the Products as Elara may determine at its sole discretion and recover from you (in addition to the price) any loss and additional costs incurred as a result of such refusal or failure (including, without limitation, disposal costs); or
(b) store the Products until final delivery at your sole risk and expense (including for loss or damage caused by Elara’s, your or the carrier’s negligence), whereupon you are liable for all related costs and expenses (including, without limitation, storage, transit, re-delivery and/or insurance) from the date and time of initial delivery.
12. Delivery to Businesses
12.1 This clause 12 also applies in relation to delivery of Products to all businesses (i.e. all non-Consumers) but not in respect of deliveries to Consumers.
12.2 The Products are at your sole risk (including for loss or damage arising out of your or the carrier’s negligence) on and from when the Products are made available by Elara for collection by its nominated carrier.
12.3 You are responsible for insuring the Products during delivery (and Elara is not required to insure the Products at any time).
12.4 The description, quantity and quality of any consignment of Products as recorded by Elara on despatch from its premises is conclusive evidence of the description, quantity and quality of Products received by you on delivery unless you can provide conclusive evidence proving the contrary.
13. Title to and risk in Goods
13.1 Products are at your sole risk from the time of delivery.
13.2 Ownership of, and title to, Products only pass to you when Elara receives full payment of all sums due in respect of the Products, including delivery charges. You are not entitled to sell the said Products, or use them as components in any system manufactured and subsequently sold, during the time that they remain the property of Elara.
13.3 Until ownership of, and title to, the Products has passed to you, you will:
(a) hold the Products on a fiduciary basis as Elara’s bailee;
(b) store the Products (at no cost to Elara) separately from all your or any third party’s other goods and products in such a way that they remain readily identifiable as Elara’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and
(d) maintain the Products in satisfactory condition and, if you are not a Consumer, keep them insured on Elara’s behalf for their full price against all risks to the reasonable satisfaction of Elara. On request, you will promptly produce the policy of insurance to Elara.
13.4 Elara may immediately recover any Products delivered to you which are still owned by Elara if you breach any terms of this Agreement or if a Termination Event occurs.
13.5 If you fail to pay in full for Products delivered to you, Elara will be entitled to claim against you for the price despite the fact that ownership and/or title in the Products has not passed to you.
13.6 This clause 13 does not entitle you to return the Products and refuse or delay payment on the grounds that property and/or title have not passed.
13.7 You hereby grants Elara, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where your right to possession has terminated, to recover them.
13.8 Each provision in this clause 13 is separate and independent of the other provisions and is severable.
14. Price and Quotes
14.1 All amounts quoted on this Website and in any communication issued in response to an order submitted by you (including the Purchase Confirmation) are, and are to be paid, in euro (€).
14.2 The price of any Products, unless a specific quote is given by Elara or an error is identified in the order acknowledgment or Purchase Confirmation, is as quoted in this Website from time to time, except in cases of obvious error. Elara reserves the right to increase its quoted prices for Products made to your specifications, with non-standard specifications or clearly personalised for you (e.g. in the case of a CBS Product).
14.3 Any quotation is valid on its date of issue only and can be revoked by Elara at any time. Any quotation is given by Elara on the basis that no Contract comes into existence except in accordance with clause 6.
14.4 The prices for the Products include VAT but exclude delivery costs, which will be added to the total amount due and payable by you as set out in Elara’s Delivery Guide https://www.elara.ie/delivery.aspx. You will be provided with the total cost before you finalise your purchase.
14.5 Catalogues, price lists and other advertising literature or material used by Elara are intended only as an indication as to the price and range of the Products offered and no prices, descriptions or other particulars contained in them are binding on Elara.
14.6 Prices and delivery charges are liable to change or variation at any time in accordance with clause 22, but changes will not affect orders in respect of which Elara has already sent you a Purchase Confirmation.
14.7 This Website contains a large number of Products and it is always possible that, despite Elara’s efforts, some of the Products listed on the Website may be incorrectly priced. If a Product’s correct price is higher than the price stated on Elara’s Website or quoted to you, Elara normally, at its discretion, either contacts you for instructions before dispatching the Product, or rejects your order and notifies you of such rejection.
14.8 Elara is under no obligation to provide the Product to you at the incorrect (lower) price, even after it has sent you a Purchase Confirmation, if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mis-pricing.
15.1 You will pay Elara in euro (€) and in full the price (including delivery charges and VAT, if applicable) in consideration of the supply of the Products pursuant to this Agreement and a Contract (without any abatement, deduction, withholding, counterclaim or set-off). No payment is deemed to have been received until Elara has received cleared funds.
15.2 Payment for all Products must, subject to clause 15.3, be made by credit or debit card in advance via the Website or the Customer Call Centre. Elara accepts payment with https://www.elara.ie/paymenthelp.aspx. Elara will not charge your credit or debit card until Elara accepts your order, although Elara may confirm with your card provider that you have sufficient funds set aside for the purchase before accepting your order.
15.3 Businesses and public bodies only are entitled to apply for a credit account.
15.4 Elara may, at its absolute discretion, approve or reject an application for a credit account and may, at its absolute discretion, terminate or suspend an approved credit account from time to time. Elara reserves the right to require any applicant for a credit account to provide whatever information Elara requires in connection with the approval process including a credit history and referees who may be contacted by Elara.
15.5 Payment for all Products under an approved credit account must be made within the period stated in the invoice (which, in all cases, will be no more than thirty (30) days from the date of issue of the invoice) and by whatever method, if any, required by Elara.
15.6 Time for payment is of the essence. If you do not pay the full price (including delivery charges) by the due date in cleared funds, Elara is entitled to stop delivery of the Products and charge you daily interest (both before and after judgment) on the outstanding balance at a rate of four per cent (4%) above the European Central Banks main refinancing operations rate from time to time from the date the payment was first due and owing.
15.7 If any payment from you is overdue, Elara is entitled, without prejudice to any other right or remedy, to suspend all further deliveries or supplies of Products under any Contract without notice.
15.8 Elara reserves the right at its absolute discretion to require payment prior to delivery or to alter the terms of payment from time to time.
15.9 All payments payable under any Contract become immediately due upon its termination despite any other provision.
16. Termination, Third Party IP and IP Exports
16.1 Each Contract is discharged by performance by Elara. Elara may terminate this Agreement and/or any Contract (or any part of a Contract) immediately by notice in writing to you if:
(a) you fail to pay in full any sum due by the required date;
(b) you breach any term or condition of this Agreement (whether repudiatory or not) which is incapable of remedy or which, if capable of remedy, is not remedied within seven (7) days of Elara writing to you and asking you to remedy the breach;
(c) any authorisation, contract, consent or licence required by Elara or necessary to supply the Products is terminated or revoked or cannot be obtained;
(d) Elara is expressly entitled to do so under another term of this Agreement;
(e) if you are contracting as a Consumer, you become bankrupt or die;
(f) you cease or threaten to cease to trade;
(g) you encumber or in any way charge any of the Products in a manner inconsistent with Elara’s rights under clause 13;
(h) you have a petition presented for your winding up; a liquidator appointed to you or a receiver or an examiner appointed to you or over part or all of your assets; you enter into a composition with your creditors (save for the purposes of a bona fide reconstruction or amalgamation); you are unable to pay its debts as they fall due; and/or you suffer any event similar to the foregoing in any other jurisdiction; and/or
(i) you breach or are reasonably suspected by Elara as having breached Irish, European, U.S. and/or other applicable export control laws,
(each and all of which are “Termination Events”).
16.2 You may terminate this Agreement and/or any Contract (or any part of a Contract) immediately by notice in writing if any of the circumstances described in clause 16.1(h) applies to Elara.
16.3 You must pay all sums due and owing to Elara in respect of a Contract which has expired or terminated, immediately upon such expiration or termination. The termination or expiration of any Contract (or part of a Contract) does not affect your obligation to pay for remaining Products to be supplied by Elara to you under another Contract (or the remaining part of a Contract).
16.4 Except as expressly stated in this Agreement, on any expiration or termination (for whatever reason) of a Contract, all rights and obligations of either party in respect of each other pursuant to the Contract immediately end. The accrued rights and remedies of the parties as at termination or expiration of a Contract or this Agreement, or the continuation or commencement after such termination or expiration of any provision expressly stated to survive or implicitly surviving termination or expiration will not be affected or prejudiced by the termination or expiration of any Contract or the Agreement.
16.5 Elara does not own the Intellectual Property in any Products (including any software in them) manufactured by third parties which Elara resells and, as a result, Elara only transfers to you a licence to use such Intellectual Property to the extent that it has the power to do so and, subject to the terms of this Agreement, without any representation and/or warranty from Elara in relation to the validity of such Intellectual Property or the manufacturer’s right to such Intellectual Property.
16.6 You agree to comply with and adhere to the terms of any applicable licence of a third party manufacturer or software licensor in respect of any Intellectual Property comprised in the Products and not to use such Intellectual Property for any purpose other than the intended and licensed purpose.
16.7 If you do not agree to the terms of any applicable licence of a third party manufacturer or software licensor relating to Intellectual Property comprised in the Products, you must not accept that licence and should immediately return the relevant Product to Elara at your sole cost and risk. Any Products returned in this way will be dealt with in accordance with clause 9 and/or 18, as applicable.
16.8 Products which include technology and/or software may be subject to EU and U.S. export control laws as well as the laws of the country where it is delivered or used which you are required to abide by. Under these laws, Product may not be sold, leased or transferred to restricted end-users or countries.
17. Custom Built System (CBS) Warranty
17.1 Elara warrants that any Elara branded and custom built computer systems made by Elara to your specifications which you purchase under a Contract (“CBS”) will be free from material defects in materials, workmanship and design for a period of one (1) year, or, subject to an additional charge, a further stated period, from its date of delivery (“CBS Warranty Period”). This warranty does not apply to the extent of any non-conformance which is caused by or results from:
(a) use of the CBS Product contrary to Elara’s and/or the manufacturer’s documents, instructions or manuals;
(b) incorrect installation of the CBS Product;
(c) modification, repair or alteration of the CBS Product by any party other than Elara;
(d) damage to the CBS Product caused by you and/or external forces; and/or
(e) your act, fault or negligence. This warranty becomes void and unenforceable if you, or any other person, makes any attempt to investigate the internal components of any part of the hardware comprised in the CBS Product.
17.2 If, during the CBS Warranty Period, you notify Elara in writing of any defect or fault in the CBS Product as a result of which the CBS Product does not conform to the warranty in clause 17.1, Elara will, at Elara’s sole discretion, do one or more of the following:
(a) use reasonable commercial efforts to correct any such non-conformance; or
(b) provide you with an alternative means of accomplishing the desired performance; or
(c) refund any price paid by you for the order value of the non-conforming element of the CBS Product provided that you supply all information, co-operation and assistance as may be necessary to assist Elara to resolve the defect or fault including sufficient information to enable Elara to re-create the defect or fault. To the fullest extent permitted by applicable law and subject to the terms of this Agreement, the remedies set out in this clause 17.2 constitute your sole and exclusive remedy for any breach of the warranty set out in clause 17.1.
17.3 Despite clauses 17.1 and 17.2, Elara does not warrant and/or undertake that your use of a CBS Product will be uninterrupted or error-free and/or that there are no minor defects in the CBS Product or that Elara will correct all errors in the CBS.
17.4 Elara owns any replaced CBS Products or any parts or components removed from a CBS Product during its repair.
17.5 The warranty in this clause 17 does not apply to components or parts incorporated into a CBS Product by you or any party other than Elara.
17.6 This clause 17 does not affect your rights under the European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003 or the Sale of Goods Act 1893.
17.7 You accept sole responsibility for the selection of the specifications of the CBS to achieve your intended results.
18. Return’s policy
18.1 Elara will comply with its returns policy https://www.elara.ie/returnshelp.aspx(“Returns Policy”), the warranty given in clause 17, where applicable, and its legal statutory obligations in relation to repairs, replacements and refunds (including those under the Sale of Goods Act 1893 and the European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003).
18.2 When returning Products, you must comply with Elara’s Returns Policy.
18.3 You are responsible for the cost of returning the Products to Elara unless:
(a) Elara arranges to collect the Products from you;
(b) Elara delivers the Products to you in error; or
(c) the Products were damaged or defective at the date of delivery to you.
18.4 Elara is not responsible for the Products while they are in transit to us. We recommend that you pack the Products securely and that you use recorded delivery service (such as prepaid post) to return any Products to us.
18.5 If you return Products to Elara:
(a) because you have sought to cancel a Contract in accordance with clause 9 within the cooling-off period, Elara will (i) provide you with an acknowledgement of receipt (by email or post) of your intention to cancel the Contract without delay and Elara will refund the amount within a reasonable period of time in accordance with its legal obligations without delay; or
(b) for any other reason, Elara will consider the circumstances and will notify you of its decision in relation to your rights within a reasonable period having regard to your statutory rights and Elara’s Returns Policy.
18.6 Elara will usually provide a repair or replacement where required to do so in accordance with this clause 18 as soon as reasonably practicable unless Elara, acting reasonably, considers this is impossible or disproportionate. Elara will return repaired or replaced Products which fall within the ambit of the warranties and your rights in clause 18.1 at Elara’s expense.
18.7 If you are entitled to a refund or reduction in the price, Elara will usually return any money to you using the same method originally used by you to pay for the purchase. Elara will usually process a refund or reduction due to you without undue delay and, in cases where you exercise your right of cancellation under clause 9, Elara will reimburse you with all payments received from you without undue delay and in any event not later than 14 days from the day on which Elara is informed about your decision to cancel the Contract. Elara will carry out such 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 such reimbursement.
18.8 If you return a Product to Elara which falls outside the ambit of the warranties and your rights in clause 18.1, Elara will notify you of this and will return the Product to you at your sole cost and risk and you will be liable to pay Elara for the time incurred by Elara in inspecting the Product in accordance with Elara’s Returns Policy, and any charges incurred by Elara as a result of your failure to initially deal directly with the manufacturer in accordance with its instructions.
18.9 Elara offers, at its sole discretion in each case, a repair service where it uses reasonable commercial endeavours to repair Products returned to it which are not covered by the warranties and your rights referred to in clause 18.1. Elara will agree with you in advance a charge for any such services if you wish to avail of them.
18.10 Elara asks that you obtain an RMA Number for any returns by completing an RMA form in accordance with Elara’s Returns Policy. Any Product returned by a non-Consumer to Elara without a valid RMA Number will be left in Elara’s warehouse for collection by you and, if not collected within thirty (30) days of its receipt, subsequently disposed of as Elara sees fit. Elara is not responsible in any way whatever for any Product returned by a non-Consumer without a valid RMA Number.
18.11 This clause 18 does not affect your statutory rights.
19.1 Elara’s liability:
(a) in respect of death or personal injury caused by Elara’s negligence or breach of duty;
(b) in respect of fraud or fraudulent misrepresentation;
(c) arising by virtue of the Liability for Defective Products Act 1991; and/or
(d) which cannot be limited or excluded pursuant to applicable law, is not in any way excluded or limited by this Agreement despite any other provision of this Agreement.
19.2 If you are dealing as a Consumer, nothing in this Agreement excludes any conditions implied pursuant to sections 12, 13, 14 and 15 of the Sale of Goods Act 1893 and/or your rights under the European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003.
19.3 The Products which Elara sells are generally Products manufactured by third parties. Subject to clause 19.1 and 19.2, any Products (or part of them, as the case may be, including without limitation, any Intellectual Property comprised in the Products) supplied to you by Elara pursuant to this Agreement which were manufactured by a third party carry only the warranty (if any) of the relevant third party manufacturer and you are only entitled to the benefit of that warranty to the extent that Elara has the power to pass through the benefit of such third party’s warranty to you.
19.4 Elara, subject to clause 19.1 and 19.2, excludes all terms, conditions, warranties and representations, whether expressed or implied by statute or common law, to the fullest extent permitted by applicable law including, without limitation, all terms, conditions, warranties and representations implied by section 39 of the Sale of Goods and Supply of Services Act 1980 and sections 13, 14 and 15 of the Sale of Goods Act 1893 (but not in any case that implied pursuant to section 12 of the Sale of Goods Act 1893).
19.5 Elara, subject to clause 19.6, is responsible for any direct losses you suffer which were reasonably foreseeable to both you and Elara when a Contract for the sale of Products by Elara to you was formed in accordance with this Agreement subject to a maximum amount which shall be no greater than the amount paid by you for the relevant Product.
19.6 Elara, subject to clauses 19.1 and 19.2, is not liable or responsible for any of the following, whether arising directly or indirectly and irrespective of whether it was advised of the possibility of them in advance:
(a) loss of actual or anticipated profits or loss of sales;
(b) loss of business, business opportunity, investment or customers;
(c) loss of actual or anticipated revenue or savings;
(d) loss of, damage to, or reduction in value of, goodwill or reputation;
(e) loss of, or loss of use of, or damage to, any software or data or equipment (including computer equipment);
(f) loss and/or liabilities arising under or in relation to any other contract; and/or
(g) economic, consequential, exemplary, punitive, special, or incidental damages or losses.
19.7 Each of the sub-clauses contained in this clause 19 is capable of surviving separately and independent of each other. You acknowledge and agree that the price payable by you to Elara in respect of Products are based upon the assumption that Elara’s liability is limited and/or excluded in the manner set out in this clause 19 and this Agreement and that such limitation or exclusion is fair and reasonable taking into account the value and price of the Products and your ability and right to source the Products elsewhere or not to purchase them.
20. Force Majeure
20.1 Neither party is liable to the other party for any delay or non-performance of its obligations under a Contract arising from any cause or causes beyond its reasonable control (a “Force Majeure Event”).
20.2 A Force Majeure Event includes any act, event, omission, accident or other circumstances beyond a party’s reasonable control and includes, in particular and without limitation, the following:
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) lack of or inability to use railways, shipping, aircraft, motor transport or other means of public or private transport;
(e) lack of or inability to obtain power, supplies or resources;
(f) lack of or inability to use public or private telecommunications networks; and/or
(g) the acts, decrees, legislation, regulations or restrictions of any government.
20.3 A party’s performance under any Contract is deemed to be suspended for the period that a Force Majeure Event continues, and it will have an extension of time for performance for the duration of that period. Each party will use its reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which its obligations under the Contract may be performed despite the Force Majeure Event. If the Force Majeure event continues for a period in excess of three (3) months, either party will be at liberty to terminate the Contract without incurring any liability whatever for any loss or damage arising therefrom.
21. Data protection
21.1 You agree that Elara may process any personal data you supply to it in connection with the performance of this Agreement and any Contract as well the maintenance of its relationship with you. Please note that Elara may use the services of a third party data processor in connection with the supply of Products to you and processing of payments. It may also provide your personal information to manufacturer where necessary in connection with the performance of your Contract.
22. Variation of Prices / Agreement
22.1 The Agreement may be amended by Elara from time to time. Elara envisages that it will normally post any proposed variations to this Agreement on this Website thirty (30) days prior to the variation of this Agreement taking effect. Variations to the Agreement will not take effect during this notice period. If you do not accept the varied Agreement, you should not purchase any Products from Elara to which the varied Agreement applies.
22.2 The prices and delivery charges for Products may be increased or decreased without any notice whatever. However, the prices variation will not apply to any Products for which Elara has already issued a Purchase Confirmation.
23. Waste Electrical and Electronic Equipment (“WEEE”)
23.1 You acknowledge having read and agree to Elara’s WEEE policy https://www.elara.ie/TandC.aspx#tab4 which addresses Elara’s policies and procedures in relation to the return of waste electrical and electronic equipment and sets out your rights in this regard.
23.2 In the performance of Elara’s obligations under this Agreement, Elara shall, to the extent required by law, fully engage in the environmentally sound management of all waste electrical and electronic equipment and materials and comply with its obligations under the WEEE Regulations.
24. Alternative Dispute Resolution
24.1 The European Commission provides an EU wide platform for alternative dispute resolution, which can be accessed here https://ec.europa.eu/odr. Information on this ADR service and how it can be used is set out on the platform. If you wish to communicate any query or complaint to us please contact us at email@example.com.
25.1 In this Agreement, the following capitalised terms and expressions have the following meanings:
“Agreement” has the meaning given to it in clause 1.1
“CBS” has the meaning given to it in clause 17.1.
“Consumer” means a natural person who is acting for purposes which are outside that person’s trade, business or profession.
“Contract” has the meaning given to it by clause 6.3.
“Customer Sales Centre” means a customer sales call centre operated by Elara through which you may submit orders by telephone for Products.
“Delivery Point” has the meaning given to it in clause 11.1.
“Purchase Confirmation” has the meaning given to it in clause 6.3.
“Elara” has the meaning given to it in clause 2.
“Intellectual Property” means any intellectual property including, without limitation, any copyright works and related rights (including copyright in computer software and databases), database rights, discoveries, concepts, domain names, patents, trade secrets or other processes, technologies,
know-how, inventions, ideas, improvements, information, trade secrets, logos, designs, trademarks, service marks, topography and semi-conductor chip rights, confidential information, business names and all similar rights anywhere in the world existing now or in the future (whether any of the foregoing is registered or unregistered and including any application or right of application or right of renewal in relation to any of them).
“Model Cancellation Form” means the form set out Part B of Schedule 3 of the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 and which is attached at Schedule 1 of these terms
“Product” means any good and/or product listed on this Website from time to time, purchased via the Customer Call Centre and/or supplied to you by Elara including, without limitation, any CBS.
“RMA Number” means a return to manufacturer authorisation number allocated to a Product by Elara in accordance with its Returns Policy.
“Returns Policy” has the meaning given to it in clause 18.1.
“Termination Events” has the meaning given to it in clause 16.1.
“WEEE Regulations” means Directive 2002/96/EC as implemented by S.I. No. 149/2014 - European Union (Waste Electrical and Electronic Equipment) Regulations 2014.
“Website” has the meaning given to it in clause 1.1.
26. Some final terms
26.1 The masculine gender includes the feminine and neuter and the singular number include the plural and vice versa and words importing persons include firms or companies. The section headings to the clauses in this Agreement are inserted for convenience of reference only and are not a part of, and do not or affect the construction or interpretation of, this Agreement. The word “including” shall mean including without limitation or prejudice to the generality of any description, definition, term or phrase preceding that word, and the word “include” and its derivatives shall be construed accordingly.
26.2 You may not assign this Agreement and any Contract formed under it, in whole or in part, without Elara’s prior written consent, which consent will not be unreasonably withheld.
26.3 The exercise by Elara of any of its rights under this Agreement is without prejudice to any of its other rights and remedies. The provisions of this Agreement may only be waived by either party in writing by express reference to this sub-clause. No delay, neglect or forbearance on the part of either party in enforcing any provision of this Agreement is a waiver, or in any way prejudices any right of a party under this Agreement. A waiver by a party of any breach of any of the provisions of this Agreement does not constitute a general waiver of such provision or of any subsequent act contrary to it.
26.4 The contents of any documents referred to in this Agreement form an integral part of this Agreement and have as full effect as if they were incorporated in the body of this Agreement. If any conflict or inconsistency arises between the provisions of this Agreement and any documents referred to in it, the provisions of this Agreement take precedence except if the document expressly provides otherwise.
26.5 Each Contract represents the entire understanding of the parties concerning its subject matter and, except as expressly provided in this Agreement, overrides and supersedes all prior and contemporaneous promises, representations, understandings, arrangements, and agreements concerning the same (whether written, oral or implied) which are hereby revoked by mutual consent of the parties. This sub-clause does not exclude any liability for fraud, misrepresentations and/or fraudulent misrepresentations.
26.6 If any provisions of this Agreement are held to be unenforceable, illegal or void in whole or in part by a court of competent jurisdiction or a competent authority, the remaining portions of the Agreement will remain in full force and effect to the fullest extent permitted by applicable law.
26.7 Elara may assign, novate and/or transfer its rights and obligations (or any part of them) under this Agreement and any Contract to (i) any company within the group of companies to which Elara belongs from time to time and/or (ii) any third party purchaser of same and/or Elara and/or of their assets, (or any part or parts thereof) provided it has no detrimental effect to you. You agree to do all reasonably things necessary to affirm any such acts, at the reasonable cost of Elara.
26.8 This Agreement and any Contract formed under it are binding on and inure to the benefit of you and Elara and, as the case may be, their heirs, estates, successors and permitted assigns.
26.9 This Agreement and any matter or dispute concerning or arising out of it or any Contract is exclusively governed by Irish law and is subject to the exclusive jurisdiction of the courts of Ireland. This clause will not prevent Elara from making an application for injunctive relief or enforcement proceedings in any jurisdiction. End.
Schedule 1 to Elara Terms & Conditions of Sale: Model Cancellation Form
MODEL CANCELLATION FORM
[Complete and return this form only if you wish to cancel the contract.]
To : [here the trader’s name, geographical address and, where available, their fax number and e-mail address are to be inserted by the trader]:
I/We [* ] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods[*]/for the provision of the following service [*],
Ordered on[*]/received on [*],
Name of consumer(s),
Address of consumer(s)
Signature of consumer(s) [only if this form is notified on paper]