Smartwater Testing Ltd Terms of Business
1. Definitions
1.1 "Company" or "We" means Smartwater Testing Limited (Company Number 10409355) having its' registered office at Bridge House, London Road, Marlborough SN8 2AJ including any of its trading names.
1.2 "Customer" or "You" means the person, persons or company entering into a Contract with the Company for provision of its' Products and Services (where applicable). By entering into a Contract with the Company you are confirming that you are legally able to do so. If you are entering into a Contract on behalf of a business or company you are confirming that you have the authority to do so.
1.3 "Services" means all or any of the services provided by the Company.
1.4 "Products" means all or any of the products provided by the Company.
1.5 "Contract" means provision of the Product and/or Service offered by the Company, usually via its' website www.smartwatertesting.co.uk. The Contract is accepted once these Terms of Business are accepted, cleared payment is made and/or demanded, usually via the Company’s website and the Product has been dispatched.
1.6 "Legionella Testing Kit” and “Microbiological Testing Kit” (Kit) means a sterile plastic sample bottle(s) with printed instructions (Instructions) for its/their use. The Kit also contains a prepaid courier bag or pre-paid postal return bag (Legionella Testing Kit only) within which the sterile plastic sample bottles must be placed in and sealed once the Instructions have been completed in full by the Customer. The Customer is then responsible for contacting the Company to arrange collection of the Sample(s) or, in the case of a pre-paid postal return bag, dropping the sealed bag off at a local Post Office. This must be done on the same day as the Sample(s) are taken.
1.7 “Laboratory” means an independent United Kingdom Accredited Service (UKAS) approved Laboratory which can perform the required tests to determine whether Legionella or Microbiological bacteria is present in the Sample(s) provided by the Customer.
1.8 “Sample(s)” means the water collected by the Customer into the Product provided by the Company, described in 1.6
1.9 “Certificate” means a document provided by the Company to the Customer to confirm the Sample(s) test results. The Certificate displays the pertinent information provided by the Laboratory in its’ report. The Laboratory report is available upon request. The retest due by date displayed on the Certificate is based on the testing frequency chosen by the Customer at the time of placing the order.
1.10 “Account” means the online Account automatically created by the Company for the Customer when the Customer either places an order or upon request by the Customer. The Customer acknowledges and authorises the Company to create an Account when placing an order.
2. Products
2.1 The Products the Company agrees to provide are:
2.1.1 Legionella Testing Kit, as described in 1.6,
2.1.2 Microbiological Testing Kit, as described in 1.6,
2.2 The Company takes all reasonable care in representing and describing its' Products via its' website. However, due to the nature of purchasing Products via the internet and product and manufacturer enhancements, the Customer accepts that there may be variances between what is presented on the website and the actual Products received.
3. Services
3.1 The Services the Company agrees to provide are:
3.1.1 to provide a personalised Product described in 2.1.1 to the Customer;
3.1.2 the Company will provide the Customer with means to transport the completed Product described in 2.1.1 to the Laboratory for it to complete tests upon the Sample(s) provided by the Customer. These means will be determined by the Company based on the type of environment the Customer requires the Product and/or Service for. For the avoidance of doubt the Company will use the following means;
a) a free Courier will be arranged by the Company or
b) a pre-paid postal return will be provided by the Company (only Legionella Testing Kits)
3.1.3 the Laboratory will advise the Company of the results of the tests it has conducted on the Sample(s) received from the Customer within approximately 14 days from receipt of the Sample(s) by the Laboratory;
3.1.4 the Company will advise the Customer of the test results either by way of provision of the Certificate or contact in a timely fashion via a durable medium should Legionella or Microbiological bacteria be present in the Sample(s) provided by the Customer. The Company will deliver the Certificate to the Customer, if applicable and when available, via the Customer's online Account;
3.1.5 for the avoidance of doubt, the Company only operates a testing and reporting Service. It does not offer a diagnosis or treatment service or any kind of advice or recommendation.
3.1.6 Based on the testing frequency entered by the customer when ordering the Company’s Product and/or Services the Company will send the Customer up to 3 emails and 1 letter advising them that a retest is due. It is at the discretion of the customer whether to retest or not. Failure to receive either an email or letter shall not constitute a breach of contract by the Company.
4. Price and Payment
4.1 The price for providing its' Products and Services (where applicable) will be clearly displayed, usually via its' website, for consideration. This price will be subject to VAT at the prevailing rate. For the avoidance of doubt the price does not include any other duty and/or import cost and payment of this is the responsibility of the Customer.
4.2 The price for providing its' Products and Services can be changed at any time without notice by the Company. However, once payment for the Product and Services (where applicable) provided by the Company has been received the Company cannot and will not subsequently change the price.
4.3 The Company requires payment for its' Products and Services (where applicable) immediately before agreeing to provide its' Products and Services, unless otherwise agreed by the Company.
4.4 Payment can be made by the Customer through the Company's website (preferred method) or by payment of an invoice provided by the Company.
4.5 No Products and Services (where applicable) will be provided by the Company until all outstanding invoices are paid or payment terms have been expressly agreed by the Company. In any case the Company reserves the right to withhold any test results and/or Certificate until all outstanding invoices are paid.
4.6 If payment terms are expressly agreed by the Company with the Customer and payment is not received within the period agreed, no more than 30 days from the invoice date, we will suspend any further deliveries of its Products and Services and without limiting any of our other rights or remedies for statutory interest, charge interest at the rate of 8% per annum above the base rate of the Bank of England from time to time on the amount outstanding until payment is received in full. The Company will also apply an Administration Fee of £100 as part of its’ costs in recovering payment.
5. Introducer Account or 30 Day Account
5.1 The Company may provide the Customer with an Introducer Account or 30 Day Account subject to application and credit search.
5.2 The Customer acknowledges that, upon application for an Introducer Account or 30 Day Account, the Company may undertake a credit search upon the Customer as part of its application process. The Customer, upon application for an Introducer Account or 30 Day Account, authorises the Company to undertake a credit search.
5.3 All or some orders received from Introducer Account and/or 30 Day Account Customers may be processed on a payment on account basis. An invoice for all orders received on this basis will be raised by the Company and emailed to the Customer for payment within 30 days of the date of the invoice.
5.4 If payment is not received from the Customer within 30 days of the date of the invoice the Company reserves the right to take action in line 4.6.
6. Customer Obligations
6.1 The Customer is solely responsible for ensuring their environment and personnel meet all current legislation, standards and guidelines. The Customer acknowledges that the Company is in no way responsible for anything other than providing its Product and/or Service to enable the Customer to collect Sample(s) from their environment which the Company will, in turn, test in a UKAS accredited Laboratory. Once the Company has presented the results to the Customer its’ obligation under the Contract is complete.
6.2 The Customer shall order the correct number of sample bottles within the Kit to suit the environment to be tested. The Company provides an Instant Quote ‘tool’ via its website for both Legionella and Microbiological Testing Kits to help the Customer determine the recommended number of Sample bottles required in the Kit. However, the Customer acknowledges that it is their responsibility to use this tool as it is to be intended and the outcome of using the tool is only the recommendation of the Company and does not imply that any regulations or legislation are satisfied when using its’ online tool.
6.3 The Customer must be available to take delivery of the Products and/or Services (where applicable) provided by the Company. An additional delivery charge may become payable by the Customer if the Product(s) and Service(s) (where applicable) cannot be delivered and redelivery is necessary;
6.4 The Customer must be available for collection by courier (where applicable) of the Products and/or Services provided by the Company. The courier collection arranged by the Company is a 9-6 Monday to Friday collection service operated by a third party. Notwithstanding the collection service provided by the Company, it is the responsibility of the Customer to ensure the Sample(s) are delivered to the Laboratory within 48 hours of being taken. Results of samples submitted exceeding this timeframe will be deemed invalid, even if the Company provides the Customer with a Certificate. An additional charge may become payable by the Customer if the Sample(s) cannot be collected and re-collection is necessary. For the avoidance of doubt this Term and additional re-collection charge applies to items incorrectly collected and delivered to our Laboratory. The Customer is responsible for obtaining a proof of postage from the Post Office (where applicable) and the Products remain the property of the Customer until receipt is acknowledged by the Company;
6.5 The Customer must provide the courier with the correct parcel containing the Products provided by the Company in accordance with the instructions contained within the Kit. For the avoidance of doubt the Laboratory is based in Middleton, Manchester. Parcels collected which do not contain the Products of the Company remain the property and responsibility of the Customer. The return of parcels which do not contain the Products of the Company is the responsibility and at the expense of the Customer. The Customer will also be liable for the costs of arranging re-collection of the Company’s Products;
6.6 The Customer must ensure the water Sample(s) provided are sourced from the environment for which they were intended;
6.7 The Customer shall follow precisely the instructions contained within the Kit;
6.8 The Customer shall contact the Company to arrange collection (where applicable) of the Sample(s) immediately upon completion. The Customer acknowledges that the Sample(s) collected must be delivered to the Laboratory within 48 hours of being taken. To facilitate this the Customer agrees to only take Sample(s) and arrange collection or Post Office drop off thereof on Monday to Thursdays before 10am, avoiding Weekends and Bank Holidays. Results of Sample(s) submitted exceeding this timeframe will be deemed invalid, even if the Company provides the Customer with a Certificate;
6.9 With specific regard to Microbiological Testing Kits and notwithstanding 6.7 above, the Customer acknowledges that the Sample(s) collected must be delivered to the laboratory within 24 hours to ensure the quality of the Sample(s). To facilitate this the Customer agrees to only take Sample(s) on Monday to Thursdays before 10am and avoid Bank Holidays. The Customer also agrees to contact the Company immediately once the Sample(s) are ready for collection;
6.10 With specific regard to Microbiological Testing Kits and to ensure the quality of the Sample(s), the Customer agrees to return the Sample(s) in a cool bag/box containing an ice block(s). The Company will return any cool bag/box and ice block(s) supplied by the Customer free of charge;
6.11 The Customer will promptly respond to any contact made by the Company in relation to any Contract;
6.12 It is the sole responsibility of the Customer to act upon information it receives from the Company in relation to the test results. The Company only operates a testing and reporting service in accordance with 3.1.5.
6.13 The Customer must check the Product(s) received and report any omissions, errors and/or non receipt of the Product(s) to the Company within 14 days of dispatch of the Product(s) by the Company. If omissions, errors and/or non receipt are reported to the Company after this period has elapsed We reserve the right to charge for providing the omitted, erroneous or non receipt of the Product(s). This charge will be limited to the cost of postage and consumables provided and no more than £10 plus VAT.
6.14 The Company will not provide the Customer with a new Kit free of charge if any of the Customer Obligations are not met. The Customer will, therefore, be required to buy a new Kit from the Company at the current price advertised in line with Term 4.
7. Shipping
7.1 The Company will ship its' Products and Services (where applicable) to the delivery address provided by the Customer.
7.2 The Company will only deliver its Product detailed in 1.6.1 and offer its Services within the United Kingdom, Isle of Man and Channel Islands.
7.3 By default, the Company will use Royal Mail 1st Class post or equivalent to ship its' Products and/or Services. However, the Company may offer other postal methods and these can be selected and payment made, where applicable, by the Customer.
7.4 All shipping costs are provided by the Company for provision of its' Products and/or Services prior to payment and are, therefore, accepted by the Customer.
7.5 The Company will make every effort to provide its' Products and/or Services in one delivery using the shipping method chosen by the Customer. However, the Customer accepts that there may be occasion where this is not possible.
7.6 Ownership of the Products and/or Services provided by the Company is immediately transferred to the Customer once the Company ships the Products and/or Services to the Customer.
8. Cancellation and Returns
8.1 The Company may cancel a Contract at any time where it believes the Customer intends to use its Products and/or Services in a way not intended by the Company.
8.2 Where the Customer fails to meet any of the Customer Obligations set out in paragraph 5, the Company may cancel a Contract and reserves the right to retain any payment made by the Customer.
8.3 Where the Company cancels a Contract under 8.1 or 8.2, it will inform the Customer in writing.
8.4 Due to the sterile nature of the sample bottle(s) provided in our Product and the personalisation of other elements of our Product they are exempt from the ‘right to cancel’ section of the Consumer Contracts Regulations 2014. We cannot, therefore, offer you a refund of any kind and you should only order our Product and/or Service if you are entirely sure you need it.
8.5 Where the Contract includes provision of the Company's Products and Services, the Contract cannot be cancelled and returns are not accepted unless a material error has been made by the Company. Where a material error has been made by the Company, the Customer must contact the Company within 48 hours of receipt of the Products and Services.
8.6 For the avoidance of doubt; where the Company’s Products have been provided and payment has been expressly agreed by the Company but not received, term 8.4 still applies.
9. Limit of Liability
9.1 The Company shall not be liable for any loss or invalidated test report resulting from failures or delays outside its control including but not limited to shipping delays, postal strikes or shipping delivery and third party courier collection issues.
9.2 The Customer accepts sole responsibility for its obligations to the Health & Safety Executive and/or Care Quality Commission and/or any other legislation, regulation, code of conduct, guidance, rules and/or regulations. The Customer acknowledges that the Company bears no responsibility whatsoever for any obligation in any and all Contract(s) entered into by the Customer with the Company.
9.3 In any event, the Company shall not be liable to the Customer for any sum exceeding the total cost of the Products and Services, including VAT.
10. Law and Jurisdiction
10.1 The law applicable to this Contract shall be English Law and the Customer consents to the jurisdiction of the English courts in all matters affecting the Contract.
11. Data Protection
11.1 When providing the Products & Services to the Customer, the Company may gain access to and/or acquire the ability to transfer, store or process personal data of the Customer and/or its’ employees.
11.2 The parties agree that where such processing of personal data takes place, the Customer shall be 'data controller' and the Company shall be the 'data processor' as defined in the General Data Protection Regulation (GDPR) as may be amended, extended and/or re-enacted from time to time.
11.3 For the avoidance of doubt, 'Personal Data', 'Processing', 'Data Controller', 'Data Processor' and 'Data Subject' shall have the same meaning as in the GDPR.
10.4 The Company shall only Process Personal Data to the extent reasonably required to enable it to provide the Products & Services as mentioned in these Terms of Business or as requested by and agreed with the Customer, shall not retain any Personal Data longer than necessary for the Processing and refrain from Processing any Personal Data for its own or for any third party's purposes.
11.5 The Company shall not disclose Personal Data to any third parties other than employees, directors, agents, subcontractors or advisors on a strict "need-to-know" basis and only under the same (or more extensive) conditions as set out in these Terms of Business or to the extent required by applicable legislation and/or regulations.
11.6 The Company shall implement and maintain technical and organisational security measures as are required to protect Personal Data Processed by the Company on behalf of the Customer. Further information about the Company’s approach to data protection are specified in its Data Protection Policy, which can be found on our website. For any enquiries or complaints regarding data privacy, you can contact our Data Protection Officer at the following e-mail address: [email protected].
12. Force Majeure
12.1 The Company shall not be liable for any delay or failure to provide any or all of its' Products and/or Services as a result of any factor beyond its' reasonable control.
13. Intellectual Property
13.1 The Company alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Company, technology, content, Product and/or Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by or to you or any other party relating to the Product and/or Service. Any Contract and/or agreement does not convey to you any rights of ownership in or related to the Product and/or Service, the Company, technology or the Intellectual Property Rights owned by the Company. The Company name, the Company logo, the Laboratory name along with its services and the product names associated with the Product and/or Service are owned and/or provided by the Company (or third parties, where applicable) and no right or license is granted to use and/or contact them directly or indirectly.
13.2 Details of the Laboratory used by the Company are provided solely for accreditation purposes. For the avoidance of doubt, the Customer shall not under any circumstances directly and/or indirectly contact the Laboratory in relation to providing its services to them directly and/or indirectly. Any commercial advantage and/or monetary gain acquired as a result of a breach of this Term by the Customer must be paid in full to the Company upon request within 14 days and all future dealings with the Laboratory directly and/or indirectly must cease immediately. Interest and Fees detailed in Term 4.6 will apply after 14 days have elapsed.
14. Complaints
14.1 All complaints about the Company should be sent to;
Smartwater Testing Ltd
Bridge House
London Road
Marlborough
SN8 2AJ
14.2 The Company will acknowledge the complaint within 7 working days and will thoroughly investigate the matter. A written response will be sent within 14 working days of receipt of the complaint.