TERMS & CONDITIONS OF SALES & SERVICES

If you are purchasing our Products and/or Services as a Poker Room/Network and/or for resale, then these Terms and Conditions do not apply to you. Please refer to the Terms and Conditions on http://www.pokercontrols.com/terms-conditions

This document (“Terms & Conditions”) together with the Equipment Descriptions &/or Services Descriptions & pricing applicable to the Equipment &/or Services that you are buying contained on www.PokerControls.com/store (the Website) together form the whole “Agreement” between Smarter Controls International Ltd. (“The Company”) and you (“The Purchaser”).
Operative provisions:
1        Definitions
1.1    In this Agreement the following expressions have the meanings stated, unless the context otherwise requires:
“ACCEPTANCE DATE” the date upon which the Purchaser accepts the terms and conditions contained in this Agreement in writing, as such acceptance shall be evidenced by the Purchaser’s completed purchase on the Website;
 “DELIVERY ADDRESS” the Billing Address or other specific address where the Equipment and Documentation is to be delivered, as identified in the purchasing details on the Website;
“DELIVERY DATE” the estimated date for the delivery of the Equipment and Documentation to the Delivery Address;
“DOCUMENTATION” the manuals and other items of documentation identified on the Website;
“EQUIPMENT” the items of hardware identified on the Website;
“ORDER DATE” the date upon which the Purchaser completes the purchase on the Website;
“PURCHASE PRICE” the aggregate price of the Equipment and Documentation set out on the Website;
“SERVICES” the provision of a service in respect of a warranty in accordance with clause 6 below.
“SOFTWARE” the software contained within the Equipment.
“STANDARD BRANDING” the logo branding on designated parts of the Equipment identified in the Order Form.
“STANDARD SOFTWARE CUSTOMISATION” the customisation of the Software contained within the Equipment to enable use on a specific poker room and to lock-in use of the Equipment to that specific poker room’.
“SPECIFIC USE” actual use of the Equipment including the Software and Documentation for the purpose of playing poker online.
“WORKING DAY” means the day on which banks in the United Kingdom are open for business but excluding Saturdays and Sundays and national or local (London) public holidays.
2        Equipment and documentation
2.1        The Company agrees to:
2.1.1    sell and the Purchaser agrees to purchase the Equipment and the Documentation; and
2.1.2    provide the Services to the Purchaser upon the terms and conditions of this Agreement and in consideration of the payment of the Purchase Price by the Purchaser.
3        Purchase price
3.1        The Purchase Price shall not include:
3.1.1    the cost of delivery to the Delivery Address, and
3.1.2    Value Added Tax (or equivalent sales tax) which shall be payable by the Purchaser in the manner and at the rate from time to time prescribed by law.
4        Delivery
4.1    The Company shall use all reasonable endeavours to deliver the Equipment and Documentation on the Delivery Date or as soon thereafter as is possible.
5        Title to and risk in the equipment and documentation
5.1    Title to the Software shall never pass to the Purchaser or any third party under any circumstances but the Company hereby grants to the Purchaser a non-exclusive, non-transferable, perpetual royalty-free licence to use the Software for the Specific Use. Any use other than for the Specific Use shall be an infringement of the Company’s Intellectual Property rights and the Purchaser hereby acknowledges that such use will constitute an infringement and/or breach of this Agreement entitling the Company to immediate preliminary injunctive relief. The Company shall not be obliged to (and does not hereby) licence any such rights in the Software to the Purchaser until the date that the Purchase Price, the costs referred to in clause 3.2.1 above and Value Added Tax (or equivalent sales tax) thereon have been paid in full to the Company (the “Payment Date”).
6        Warranty in respect of the equipment
6.1    Subject to the limitations upon its liability set out in clause 7 below the Company warrants to the Purchaser that the Equipment will for a period of twelve months from the Delivery Date be free from defects in or arising from design, materials, workmanship or delivery;
6.2    The Purchaser shall give notice to the Company as soon as it is reasonably able upon becoming aware of a breach of warranty.
6.3    The Company shall as soon as it is reasonably able investigate any alleged breach of warranty and in the case of a breach of warranty falling within clause 6.1 above shall remedy the same free of charge by replacing the Equipment or such component parts as it shall in its absolute discretion think fit.
6.4    Any Equipment or component parts of the Equipment replaced by the Company pursuant to clause 6.3 above (“Replaced Equipment”) shall upon replacement become the property of the Company and the Purchaser warrants that its title to such Replaced Equipment shall be free and unencumbered or that it shall have all necessary consents and authorities to part with possession of the Replaced Equipment.
6.5    Subject to the foregoing and with the exception of the condition and warranties implied by section 12 of the Sale of Goods Act 1979 as amended all conditions warranties terms and undertakings express or implied statutory or otherwise in respect of the Equipment and the provision of the Services are hereby excluded.
7        Limitation of liability
7.1    The following provisions set out the Company’s entire liability (including any liability for the acts and omissions of its employees agents and sub contractors) to the Purchaser in respect of
7.1.1    any breach of its contractual obligations arising under this Agreement.
7.2    Any breach on the part of the Company or its employees, agents or sub contractors falling within clause 7.1 above shall for the purposes of this clause 7 be known as an “Event of Default”.
7.3        The Company’s liability to the Purchaser for:
7.3.1    death or injury resulting from its own or that of its employees’ agents’ or sub-contractors’ negligence; and
7.3.2    damage suffered by the Purchaser as a result of any breach of the obligations implied by, as applicable, section 12 of the Sale of Goods Act 1979 as amended, section 2 of the Supply of Goods and Services Act 1982 as amended or section 8 of the Supply of Goods (Implied Terms Act) 1973 as amended,
shall not be limited.
7.4    The Company shall under no circumstances whatsoever accept liability to the Purchaser in respect of damage to the tangible property of the Purchaser resulting from the negligence of the Company or its employees agents and sub contractors.
7.5    The Company shall not be liable to the Purchaser or any third party in the event that the Software ceases to work due to changes made on the Purchaser’s personal computer, changes on any poker room/network’s website or software, or any other third party changes.
7.6    Subject to the provisions of clause 7.3 above, the Company’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the Purchase Price or that proportion of the Purchase Price which is attributable to such items of the Equipment found to be defective.
7.7    Subject to clause 7.3 above, the Company shall not be liable to the Purchaser in respect of any Event of Default for loss of profits, goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Purchaser as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Purchaser incurring the same.
7.8    If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this Agreement.
7.9    The Purchaser hereby agrees to afford the Company not less than thirty Working Days in which to remedy any Event of Default hereunder.
7.10    Except in the case of an Event of Default arising under clause 7.3 above the Company shall have no liability to the Purchaser in respect of any Event of Default unless the Purchaser shall have served notice of the same upon the Company within five Working Days of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.
7.11    Nothing in this clause 7 shall confer any right or remedy upon the Purchaser to which it would not otherwise be legally entitled.
8        Patent and copyright
8.1    The Purchaser acknowledges and agrees that the Company is the sole and complete owner of the intellectual property rights in the Equipment and the Software and the Documentation and shall have any and all tangible and non-tangible rights in the Equipment and the Software and the Documentation, including, without limitation, any related trade secrets, know-how techniques, designs, processes communications protocols, software, whether patentable or not, patents, patent applications, including any patents issuing thereon and any and all divisions, continuations and continuations-in-part thereof, and any and all re-issues and re-examinations of any such patents, copyrights, copyright registrations and applications, and all other intellectual property rights (“Intellectual Property Rights”). All brands, trademarks, logos, designs or other are the property of the Company and will remain at all times and in that regard, the Purchaser shall not:-
8.1.1    Assign, transfer, sell, lease, rent, charge, deal with, or otherwise hold itself out as the owner of, the Intellectual Property Rights.
8.1.2    Remove or alter any copyright or other proprietary notice or device upon the Equipment or the Documentation.
8.2    The Purchaser acknowledges and agrees that the Company does not owe it a duty of care and hereby waives, discharges and shall hold the Company harmless from and against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation, possession or use of the Equipment and/or the Software and/or the Documentation (including any adaptations or modifications requested to it by the Purchaser) by the Purchaser infringes the patent copyright registered design or trade mark rights of the said third party (an “Intellectual Property Infringement”) declaring however that the Purchaser:
8.2.1    shall give notice to the Company of any Intellectual Property Infringement forthwith upon becoming aware of the same;
8.2.2    acknowledges that the Company reserves to itself the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and the Purchaser shall not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except upon the express instructions of the Company; and
8.2.3     shall act in accordance with the reasonable instructions of the Company and shall give to the Company such assistance as it shall reasonably require in respect of the conduct of the said defence.
8.3    Notwithstanding and entirely without prejudice to clause 8.2 above the Company shall have no liability to indemnify the Purchaser in respect of an Intellectual Property Infringement if the same results from:
8.3.1    any unauthorised alteration modification or adjustment to the Equipment or the Software or Documentation without the prior consent of the Company; or
8.3.2    the connection, operation or use of the Equipment or Software or the Documentation with any other equipment or software or documentation not supplied by the Company or the use of the Equipment or Software or Documentation for any purpose other than the Specific Use; or
8.3.3    any adaptation or modification of the Equipment and the Software and the Documents sought or requested by the Purchaser.
8.4        The provisions of clause 7 above shall not apply to this clause 8.
9    Documentation
9.1    The Documentation provided by the Company to the Purchaser is the copyright of the Company and contains confidential information of the Company.
9.2    The Purchaser shall take all such steps as shall be necessary to protect the Company’s copyright and confidential information in the Documentation and without prejudice to the generality of the foregoing shall not copy or reproduce the same nor distribute sell or disclose the contents of the same to any third party without the prior consent of the Company.
9.3    The Purchaser undertakes to the Company to make its employees agents and sub contractors aware of the provisions of this clause 9 and to use its best endeavours to ensure compliance by its said employees agents and sub contractors with the obligations set out in clause 9.2 above.
10        Internet Use etc.
10.1.1    The Purchaser undertakes not to sell, assign, distribute or otherwise deal in the Equipment and the Software and the Documentation otherwise than for the Specific Use.
10.2    The Company does not warrant that the Equipment meets the applicable European and national standards for connection to the Poker Rooms/Networks but reserves to itself the right to make such alterations modifications or additions to the Equipment at the Purchaser’s expense which may be required in order to meet such standards.
10.3    The Company shall not be liable for any loss or damage resulting from the acts or omissions of the Poker Rooms/Networks or the breach by the Purchaser of its obligations under clause 10.1 above.
11        Access to Poker Rooms/Networks
11.1    The Purchaser’s access to the Poker Room/Network on which he wishes to use the Equipment &/or Services shall be the sole responsibility of the Purchaser. In the event that access to the Poker Room/Network is denied, restricted or limited in any way whatsoever, the Company shall not be liable to and be held harmless by the Purchaser or any third party from and against any cost(s), liability, losses, damage and damages arising howsoever, and whether direct or economic arising from the Purchaser’s failure to notify the Company as aforesaid.
12        Termination
12.1        This Agreement may be terminated:
12.1.1    forthwith by the Company if the Purchaser fails to pay any sum due hereunder; and
12.1.2    forthwith by either party if the other commits any material breach of any term of this Agreement (other than one falling within 12.1.1 above) and subject to the limitations contained under clause 7 above.
12.1.3    forthwith by either party if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction).
12.2    In the event that the Purchaser commits any material breach of any term of this Agreement, the Purchase Price will remain payable to the Company.
12.3    In the event that the Company commits any material breach of any term of this Agreement, the Company shall be entitled to payment of its costs in performance of its obligations under this Agreement up to and including the date of the Company’s material breach.
12.4    Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to under this Agreement or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
13        Confidentiality
13.1    Each of the parties to this Agreement undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this Agreement save that which is:
13.1.1    trivial or obvious;
13.1.2    already in its possession other than as a result of a breach of this clause; or
13.1.3    in the public domain other than as a result of a breach of this clause.
13.2    Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 13.1 above by its employees agents and sub contractors.
14        Export
14.1    The Purchaser undertakes not to export the whole or any part of the Equipment from the Delivery Address without obtaining all necessary prior consents and licences from the relevant regulatory bodies or any successor of or substitute for such body.
15        Force majeure
15.1    Neither party to this Agreement shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees) insurrection or riots, embargoes, container shortages, wrecks or delays in transportation inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an “Event of Force Majeure”).
15.2    Each of the parties to this Agreement agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
15.3    If a default due to an Event of Force Majeure shall continue for more than eight weeks then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure.
16        Waiver
16.1    The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
17        Notices
17.1    Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or facsimile transmission (such facsimile transmission notice to be confirmed by letter posted within 24 hours) to the address or to the facsimile number of the other party set out in this Agreement (or such other address or numbers as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by facsimile transmission) upon the expiration of 12 hours after dispatch.
18        Invalidity and severability
18.1    If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
19        Entire Agreement
19.1    The Company shall not be liable to the Purchaser for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of execution of this Agreement other than those representations agreements statements and undertakings confirmed by a duly authorised representative of the Company in writing or expressly incorporated or referred to in this Agreement.
19.2    Nothing in this Agreement is intended to exclude a party’s liability for fraud or fraudulent concealment.
20        Successors
This Agreement shall be binding upon and enure for the benefit of the successors in title of the parties hereto.
21        Assignment
Neither party shall be entitled to assign this Agreement nor all or any of their rights and obligations hereunder without the prior written consent of the other.
22        VAT
Save in so far as otherwise expressly provided all amounts stated in this Agreement are expressed exclusive of Value Added Tax or other applicable sales tax and any Value Added Tax or sales tax arising in respect of any supply made hereunder shall on the issue of a valid tax invoice in respect of the same be paid to the party making such supply by the party to whom it is made in addition to any other consideration payable therefor.
23        Headings
Headings to clauses in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.
24        Law
This Agreement shall be governed by and construed in accordance with English law and the parties hereto agree to submit to the non exclusive jurisdiction of the English courts.
25        Exclusion of third party rights
The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and no rights or benefits expressly or impliedly conferred by it shall be enforceable under that Act against the parties to it by any other person.