company terms and conditions
Date Added: Thu 23 August 2007
This section details the companies standard terms of sale.
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STANDARD TERMS AND CONDITIONS OF SALE, HIRE AND/OR INSTALLATION OF SERVICE GRAPHICS LIMITED
1. Interpretation
1.1 In these Conditions:
‘Customer’ means the person whose order for the purchase of the Goods, hire of the Hire Equipment and/or Installation is accepted by Service Graphics
‘Conditions’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing by a duly authorised signatory of Service Graphics
‘Contract’ means the contract for the purchase and sale of the Goods, hire of the Hire Equipment and/or Installation
‘Goods’ means the goods (including any instalment of the goods or any parts for them) which Service Graphics is to supply in accordance with these Conditions;
“Hire Equipment” means the equipment hired by the Customer pursuant to the Contract
“Installation” means the installation of the Goods and/or Hire Equipment by Service Graphics at the Premises;
“Premises” the premises at which the Goods and/or the Hire Equipment is to be installed by Service Graphics;
‘Service Graphics’ means Service Graphics Limited (registered in England under number 4332146) whose registered office is at
St Ives House, Lavington Street, London, SE1 0NX; and ‘Writing’ includes fax, email, letter and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4 References to any national currency (or to any unit thereof) of a member state of the European Community ("Member State") shall upon such Member State (whether at inception or subsequently) becoming a participating member in a single currency ("the Euro" or "Euros") be deemed to include references to the Euro (or to any unit thereof) converted at the fixed conversion rate into Euros for each participating currency as determined by the Council of Ministers and upon such national currency ceasing to be legal tender within the European Community, the Euro (or any unit thereof) shall be deemed to be substituted in its place calculated at the said fixed conversion rate.
1.5 In these Conditions, references to the masculine include the feminine and references to the singular include the plural and vice versa as the context admits or requires.
2. Basis of the Contract
2.1 Service Graphics shall sell and the Customer shall purchase the Goods, and/or (if relevant) any hire of the Hire Equipment and/or Installation shall be carried out in accordance with any written estimate of Service Graphics which is accepted by the Customer, and subsequently confirmed by Service Graphics or any written order of the Customer which is accepted by Service Graphics, subject in either case to these Conditions, which shall govern the Contract to the exclusion of all other terms and conditions whether of the Customer or otherwise.
These Conditions apply to all Service Graphics sales, hires or installations. Where the Customer has requested that Service Graphics carry out the Installation, then Clause 11 (Installation) shall also apply to the Contract. Where the Customer has hired the Hire Equipment from Service Graphics, Clause 12 (hire of Hire Equipment) shall apply to the Contract.
If no Installation and/or hire of Hire Equipment is to take place, clauses 11 and/or 12 shall not apply to the Contract.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Customer and Service Graphics.
2.3 Service Graphics employees or agents are not authorised to make any representations, warranties or undertakings (verbal or otherwise) concerning the Goods, the Hire Equipment or the Installation or otherwise unless confirmed by an authorised representative of Service Graphics in Writing.
In entering into the Contract the Customer acknowledges that it does not rely on any such representations, warranties or undertakings which are not so confirmed.
2.4 Any advice or recommendation given by Service Graphics or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods and/or the Hire Equipment which is not confirmed in Writing by Service Graphics is followed or acted upon entirely at the Customer’s own risk, and accordingly Service Graphics shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Service Graphics shall be subject to correction without any liability on the part of Service Graphics.
2.6 Service Graphics catalogues, technical circulars, sales literature, price lists and other such documents are for the Customer's general guidance only and the particulars contained in such documents shall not constitute representations by Service Graphics and Service Graphics shall not be bound thereby, nor shall they form part of the Contract.
2.7 Where technically possible and within the tolerance of materials used the Customer's colour balance requirements will be taken into account. In the absence of specific instructions in regard to Pantone numbers or the Customer's supplied match samples colour balance will be at the discretion of Service Graphics.
2.8 Any estimate or quotation is given by Service Graphics on the basis that no contract will come into existence until Service Graphics dispatches an acknowledgement of order (whether in Writing or by phone by an authorised representative of Service Graphics) to the Customer.
3. Orders and specifications
3.1 No order submitted by the Customer shall be deemed to be accepted by Service Graphics unless and until confirmed in Writing by Service Graphics’ authorised representative.
3.2 The Customer shall be responsible to Service Graphics for ensuring the accuracy of the terms of any order (including any applicable specification) which the Customer is responsible for ensuring is submitted by the Customer, and for giving Service Graphics any necessary information relating to the Goods and/or Hire Equipment and/or Installation within a sufficient time to enable Service Graphics to perform the Contract in accordance with its terms. Where proofs are submitted to the Customer for the Customer’s approval, Service Graphics shall incur no liability for errors which should reasonably be identified by the Customer which are not so identified
3.3 The quantity, quality and description of and any specification shall be those set out in Service Graphics estimate (if accepted by the Customer) or the Customer’s order (if accepted by Service Graphics). Unless confirmed in Writing by Service Graphics, all specifications, drawings and particulars of weights, dimensions and performance issued by Service Graphics are approximate only and Service Graphics gives no warranty or representation that the Goods and/or Hire Equipment will conform with such specification.
3.4 If the Goods and/or Hire Equipment are to be manufactured or any process is to be applied to the Goods and/or Hire Equipment by Service Graphics in accordance with a specification submitted by the Customer, the Customer warrants to Service Graphics that the intellectual property rights in such specification belong to the Customer or that the Customer is licensed or otherwise authorised to use such specification by the actual owner.
The Customer shall indemnify Service Graphics on demand against all loss, damages, costs and expenses awarded against or incurred by Service Graphics in connection with or paid or agreed to be paid by Service Graphics in settlement of any claim arising out of:-
(i) infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from Service Graphics use of the Customer’s specification; and/or
(ii) any impracticality, inefficiency or lack of safety or other defect in the Goods and/or Hire Equipment where such defect is due (whether in whole or in part) to faults or omissions in information, drawings, designs, instructions, or specifications of the Customer.
3.5 Service Graphics reserves the right to make any changes in the specification of the Goods and/or Hire Equipment which are (in Service Graphics opinion) required to conform with any applicable statutory or EC requirements or, where the Goods and/or Hire Equipment are to be supplied to Service Graphics specification, which do not materially affect their quality or performance.
3.6 No order which has been accepted by Service Graphics may be cancelled by the Customer except with the agreement in Writing of Service Graphics and on terms that the Customer shall indemnify Service Graphics in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Service Graphics as a result of cancellation.
3.7 Service Graphics shall not be required to process any order which in its opinion is or may be of an illegal or libellous nature and the Customer shall indemnify Service Graphics on demand against any loss, damages, costs and expenses awarded against or incurred by Service Graphics in connection therewith.
3.8 The Customer hereby gives such consent and permission to Service Graphics as may be required to enable Service Graphics to use copies of the Goods and/or Hire Equipment supplied to the Customer for the purposes of Service Graphics own marketing requirements, including consenting to the reproduction of any name, logo, trademark or other intellectual property right included in the Goods. This is without prejudice to Service Graphics other rights under these Conditions.
4. Price of the Goods
4.1 Unless otherwise agreed between the parties in Writing the price of the Goods (“the Price”) shall be Service Graphics quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in Service Graphics price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, Service Graphics published export price list shall apply. All Prices quoted are valid for 30 days only (or until earlier acceptance by the Customer or earlier withdrawal by Service Graphics before the Customer's acceptance), after which time they may be altered by Service Graphics without giving notice to the Customer.
Where the Customer is to hire the Hire Equipment and/or Installation is to occur (as relevant) the price for such Hire Equipment and/or Installation shall (in the absence of manifest error) be included in the Price quoted for the Goods or Service Graphics separate list price for the Hire Equipment and/or Installation.
4.2 Service Graphics reserves the right, by giving notice to the Customer at any time before delivery, to increase the Price to reflect any increase in the cost Service Graphics which is due to any factor beyond the control of Service Graphics (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Service Graphics adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of Service Graphics, and unless otherwise agreed in Writing between the Customer and Service Graphics, all Prices are given by Service Graphics on an ex works basis, and where Service Graphics agrees to deliver the Goods otherwise than at Service Graphics premises, the Customer shall be liable to pay Service Graphics charges for transport, packaging and insurance.
4.4 All Prices are exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to Service Graphics.
4.5 The cost of pallets and returnable containers will be charged to the Customer in addition to the Price, but credit will be given to the Customer provided they are returned undamaged to Service Graphics before the due payment date.
5. Terms of payment
5.1 For new customers, Service Graphics reserves the right to require that a sum equal to the Price be paid in advance by the Customer on commencement of the Contract, otherwise, unless otherwise agreed in writing by an authorised representative of Service Graphics if the Price is £5,000 or more, an advance payment representing 50% of the Price is required on acceptance of the Customer’s order and prior to commencement of any work or services by Service Graphics.
Any monies agreed to be paid by the Customer to Service Graphics on account of any Price or fee payable under the Contract prior to the commencement of the Contract or prior to delivery of the Goods, the sum paid may be applied by Service Graphics against any invoice rendered by Service Graphics under the Contract in Service Graphics discretion, not necessarily in chronological order of invoice rendered.
Under no circumstances shall such sum be returnable to the Customer once the Contract has been formed.
Service Graphics may also apply such sum to any other amount owing to Service Graphics by the Customer whether under the Contract or otherwise.
5.2 Subject to any special terms agreed in Writing between the Customer and Service Graphics, Service Graphics shall be entitled to invoice the Customer for the Price (or where an advance payment on account of the Price has been paid, the balance of the Price) on or at any time after delivery of the Goods and/or Hire Equipment, unless the Goods and/or the Hire Equipment are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods and/or Hire Equipment, in which event Service Graphics shall be entitled to invoice the Customer for the Price at any time after Service Graphics has notified the Customer that the Goods and/or Hire Equipment are ready for collection or (as the case may be) Service Graphics has tendered delivery of the Goods and/or Hire Equipment.
Service Graphics reserves the right to submit interim invoices if, in Service Graphics discretion, the circumstances in respect of a particular order mean that it would be unreasonable for Service Graphics to await invoicing at the time of delivery or when notifying the Customer that the Goods and/or Hire Equipment are available for collections or otherwise.
5.3 The Customer shall pay the Price (or where an advance payment on account of the Price has been paid, the balance of the Price) due under the Contract (less any discount to which the Customer is entitled, but without any other set off deduction, counterclaim, abatement or otherwise) within 30 days of the date of Service Graphics invoice, and Service Graphics shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer.
The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
No payment shall be deemed to have been received by Service Graphics until Service Graphics has received cleared funds.
5.4 Where Service Graphics agree in Writing with the Customer to any rebate or reduction on the fees or price payable under the Contract in return for the Customer paying invoices rendered by Service Graphics within agreed timescales, where such timescales are not adhered to by the Customer, Service Graphics shall be entitled to withdraw any such rebate or reduction arrangement without notice to the Customer and the Customer shall pay the full amount of the relevant invoice as increased to take into account the loss of the agreed rebate or reduction, with Service Graphics having the benefit of such other rights set out in these Conditions (including the right to charge interest) in respect of any sum so unpaid by the Customer.
5.5 If the Customer fails to make any payment in full on the relevant due date then, without prejudice to any other right or remedy available to Service Graphics, Service Graphics shall be entitled to:
5.5.1 cancel the Contract or suspend any further deliveries or services (including Installation if relevant) to the Customer;
5.5.2 the immediate payment of all payments outstanding in respect of the Goods and of any other goods, works or services provided by Service Graphics to the Customer under any other contract notwithstanding the fact that the date for payment may not yet have fallen due;
5.5.3 appropriate any payment made by the Customer to such of the Goods, Hire Equipment and/or Installation (or the goods supplied under any other contract between the Customer and Service Graphics) as Service Graphics may think fit (notwithstanding any purported appropriation by the Customer);
5.5.4 charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of 3 per cent per annum above Barclay’s Bank base Plc’s rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest). Service Graphics reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
5.5.5 charge the Customer the cost of recovery of any unpaid amount including any legal costs, disbursements and bank charges incurred.
5.6 Service Graphics reserves the right (in its entire discretion) at any time by notice in Writing to the Customer to set off any monies owed by Service Graphics to the Customer against any monies owed to Service Graphics by the Customer under the Contract.
6. Delivery
6.1 Delivery of the Goods shall be made by the Customer collecting the Goods at Service Graphics premises at any time after Service Graphics has notified the Customer that the Goods are ready for collection or, if some other place for delivery is agreed in Writing by Service Graphics, by Service Graphics delivering the Goods to that place.
Where Service Graphics agrees to deliver the Goods otherwise than at Service Graphics premises, Service Graphics shall be under no obligation under Section 32(2) of the Sale of Goods Act 1979.
6.2 Any dates quoted for delivery of the Goods are approximate only and Service Graphics shall not be liable for any delay in delivery of the Goods howsoever caused.
Time for delivery shall not be of the essence of the Contract unless previously agreed by Service Graphics in Writing by an authorised signatory of Service Graphics. The Goods may be delivered by Service Graphics in advance of the quoted delivery date upon giving reasonable notice to the Customer.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Service Graphics to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.4 If Service Graphics fails to deliver the Goods (or any instalment) for any reason other than any cause beyond Service Graphics reasonable control or the Customer’s fault, and Service Graphics is accordingly liable to the Customer, Service Graphics liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
In no circumstances shall Service Graphics be responsible for any other loss (including loss of profit) whether direct or indirect or consequential costs, damages, charges or expenses arising out of such late delivery.
6.5 If the Customer fails to take delivery of the Goods or fails to give Service Graphics adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of Service Graphics fault) then, without prejudice to any other right or remedy available to Service Graphics, Service Graphics may:
6.5.1 elect that the Goods are deemed delivered; or
6.5.2 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
6.5.3 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
6.6 Save where the Customer signs a delivery note accepting delivery of the Goods in satisfactory condition, in which case the Customer will be deemed to have accepted the Goods as being free of all defects or faults, all defects in the Goods must be notified in Writing (giving full details of the alleged defects and affording Service Graphics a reasonable opportunity to inspect the alleged defects, failing which the notice shall be deemed to be invalid) by the Customer to Service Graphics within 7 days of delivery of the Goods otherwise the Goods will have been deemed to have been accepted and to have been delivered to the Customer free of all defects or faults and the Customer shall have no further right to reject the Goods or recover any compensation therefore.
6.7 Nothwithstanding any other clause in the Conditions, if any Goods are used after delivery or Installation by the Customer, then the Customer shall be deemed to have accepted the Goods as being in all respects in accordance with the Contract.
7. Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Customer:
7.1.1 in the case of Goods to be delivered at Service Graphics premises, at the time when Service Graphics notifies the Customer that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than at Service Graphics premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when Service Graphics has tendered delivery of the Goods.
Where title/property in the Goods has not passed to the Customer but risk has passed to the Customer, the Customer shall ensure that the Goods are adequately insured with a reputable insurer and that Service Graphics interest in the Goods is noted on the said insurance policy.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until Service Graphics has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by Service Graphics to the Customer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as Service Graphics fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as Service Graphics property, but shall be entitled to resell or use the Goods in the ordinary course of its business.
7.4 Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), Service Graphics shall be entitled at any time to require the Customer to deliver up the Goods to Service Graphics and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
7.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Service Graphics, but if the Customer does so all moneys owing by the Customer to Service Graphics shall (without prejudice to any other right or remedy of Service Graphics) forthwith become due and payable.
7.6 The Customer’s right to possession of the Goods prior to payment of all sums due to Service Graphics in full shall terminate immediately if:
7.6.1 the Customer has a bankruptcy order made against the Customer or makes an arrangement or composition with its creditors, or otherwise takes the benefit of act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to the court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
7.6.2 the Customer suffers or allows an execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe/perform any of its obligations under the Contract or any other contract between Service Graphics and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
7.6.3 the Customer encumbers, pledges or in any way charges any of the Goods.
7.7 The Customer grants Service Graphics, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession and/or power of sale has terminated, to recover them in either of which case the Customer shall place the Goods at the disposal of Service Graphics.
8. Warranties and liability
8.1 Subject to the conditions set out below Service Graphics warrants that the Goods will be free from defects in material and workmanship for a period where Service Graphics manufactured the Goods, of 12 months from delivery.
In all other cases, Service Graphics shall endeavour to pass on to the Customer such manufacturer’s warranty or guarantees as may be afforded to Service Graphics (and is capable of being passed on to the Customer (without involving Service Graphics paying any extra premium or fee to any party) by the manufacturer or supplier of the Goods to Service Graphics when such items were purchased by Service Graphics itself.
8.2 The above warranty is given by Service Graphics subject to the following conditions:
8.2.1 Service Graphics shall be under no liability in respect of any defect in the Goods arising from any information, drawing, design, instruction or specification supplied by the Customer;
8.2.2 Service Graphics shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Service Graphics instructions (whether oral or in Writing), improper installation (other than by Service Graphics) misuse or alteration or repair of the Goods without Service Graphics approval;
8.2.3 Service Graphics shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods (and/or the Hire Equipment and/or the Installation) has not been paid by the due date for payment or if the Customer is otherwise in breach of this Contract or any other contract with Service Graphics;
8.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by Service Graphics, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Service Graphics; and
8.2.5 the warranty shall be invalidated if the Customer attempts to effect repairs to the Goods itself or through a third party during the warranty period.
8.2.6 for the avoidance of doubt, the warranty does not apply to the Hire Equipment and/or the Installation.
8.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded in the Contract to the fullest extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by these Conditions.
8.5 Service Graphics shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Service Graphics, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Customer or the supply of the Hire Equipment and/or the Installation, and the entire liability of Service Graphics under or in connection with the Contract shall not exceed 125% of the price payable under the Contract, except as expressly provided in these Conditions.
8.6 Service Graphics shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of Service Graphics obligations in relation to the Contract, if the delay or failure was due to any cause beyond Service Graphics reasonable control and such failure or delay shall entitle either party to terminate the Contract if it persists for more than three months but the Customer shall remain liable to pay the price under the Contract in respect of items delivered prior to the date of such cancellation.
Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond Service Graphics reasonable control:
8.6.1 Act of God, explosion, flood, tempest, fire or accident;
8.6.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.6.3 treaties, directives, acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority or other body or competent authority;
8.6.4 import or export regulations or embargoes;
8.6.5 strikes, lock outs or other industrial actions or trade disputes (whether involving employees of Service Graphics or of a third party);
8.6.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery; and/or
8.6.7 power failure or breakdown in machinery.
8.7 Notwithstanding the other provisions of this Clause 8, Service Graphics may in its entire discretion once notice of any defect or fault in the Goods has been notified in Writing to Service Graphics and accepted by Service Graphics, elect to repair and/or replace the Goods and if so, the replacement of the Goods shall be the full extent of Service Graphic’s liability to the Customer under the Contract.
If the Goods are unavailable or not in stock, and the replacement option is elected by Service Graphics, Service Graphics may provide a suitable alternative to the Goods even if made by a different manufacturer.
The right to repair and/or replace the Goods is to the exclusion of all or any clauses in respect of the Goods on the part of the Customer.
8.8 Nothing in this Clause 8 shall restrict Service Graphics liability for death or personal injury caused by Service Graphics negligence or fraudulent misrepresentation.
8.9 Without prejudice to the other rights of Service Graphics under the Contract, any claim made against Service Graphics under the Contract must be brought within 3 months of the date on which the cause of action on the party of the Customer arose.
8.10 Where applicable, the limitations of Service Graphics liability set out in this Clause 8 and elsewhere in these Conditions apply mutatis mutandis to any liability of Service Graphics under the Contract in respect of the Hire Equipment and/or the Installation.
9. Indemnity
9.1 Provided always that this indemnity shall not apply to the extent that any claim arises directly or indirectly as a result of material supplied or the specification supplied by the Customer pursuant to the terms of the Contract, if any claim is made against the Customer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of any information, drawing, design, instruction or specification supplied by the Customer, Service Graphics shall indemnify the Customer against all loss, damages, costs and expenses awarded against or incurred by the Customer in connection with the claim, or paid or agreed to be paid by the Customer in settlement of the claim, provided that:
9.1.1 Service Graphics is given full control of any proceedings or negotiations in connection with any such claim;
9.1.2 the Customer shall give Service Graphics all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Customer shall not pay or accept any such claim, or compromise any such proceedings without the consent of Service Graphics (which shall not be unreasonably withheld);
9.1.4 the Customer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Customer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavours to do);
9.1.5 Service Graphics shall be entitled to the benefit of, and the Customer shall accordingly account to Service Graphics for, all damages and costs (if any) awarded in favour of the Customer which are payable by, or agreed with the consent of the Customer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
9.1.6 without prejudice to any duty of the Customer at common law, Service Graphics shall be entitled to require the Customer to take such steps as Service Graphics may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which Service Graphics is liable to indemnify the Customer under this clause.
10. Installation
10.1 Where Installation is required pursuant to the Contract, Service Graphics shall install the Goods and/or Hire Equipment on the terms and conditions set out in this Clause and the Contract generally.
10.2 Service Graphics is not responsible for any delay in Installation directly or indirectly arising out of the actions or omissions of the Customer (including any employee, officer or contractor of the Customer) or any third party.
10.3 The Customer shall: -
10.3.1 make any necessary agreement with relevant regulatory, governmental or other authorities or other relevant third parties and obtain any consent or
authorisation required in respect of the Installation;
10.3.2 provide any information Service Graphics may reasonably require in connection with the Installation;
10.3.3 pay for any relevant approval or permission;
10.3.4 meet the requirements of any of these authorities at all times to maintain their approval;
10.3.5 tell Service Graphics if any information the Customer has given to Service Graphics changes; and
10.3.6 if any approval, consent or authorisation is amended or ends, the Customer must write to Service Graphics as soon as the Customer finds out.
10.4 The Customer must during Installation: -
10.4.1 give Service Graphics access to the Premises so that the Company may perform the Installation and provide all such assistance as may be reasonably requested by Service Graphics promptly and without cost to Service Graphics. The Customer shall move any materials, and other objects obstructing or preventing installation;
10.4.2 use best efforts to make sure that the Premises and any equipment provided are safe and without risk for Service Graphics employees and agents. The Customer must tell the Company the location of any concealed pipes and wires which may affect the Installation and about any known risks and any hazardous materials at the Premises;
10.4.3 provide information about the Customer, the Premises and any other relevant information so that Service Graphics can perform the Installation. The Customer must write to the Company to tell the Company of any changes to this information;
10.4.4 operate the Goods and/or Hire Equipment according to the requirements of the specification and operating instructions if any and users handbooks issued from time to time;
10.4.5 be responsible for and compensate Service Graphics against all liabilities, claims, losses or expenses Service Graphics suffers if caused: (i) because the Customer or others have damaged or not used the Goods and/or Hire Equipment according to the specification or operating instructions; or (ii) as a result of the connection of the Goods and/or Hire Equipment to any equipment or device not supplied by the Company;
10.4.6 tell Service Graphics at once of any defect or fault in the Goods and/or Hire Equipment; if anyone tampers with the Goods and or Hire Equipment; if any part of the Goods Hire Equipment is damaged or stolen; or if the Goods are to be subject to any unusual operating or environmental conditions; and
10.4.7 ensure that Service Graphics staff and contractors have adequate welfare facilities (toilet and washing facilities).
10.5 References in these Conditions to the Goods shall (unless the contract otherwise requires and include where relevant and applicable) reference to the Installation and the relevant provisions of the Agreement shall accordingly apply mutatis mutandis to the Installation.
11. Hire
Where the Customer as part of the Contract hires the Hire Equipment, the following terms shall apply, unless varied and/or extended by Service Graphics in Writing: -
11.1 The period of hire shall commence on the earlier of the date of the Contract and the date on which the Hire Equipment is collected by or delivered to the Customer. The period of hire shall end on the earlier of the following days, the day on which it is redelivered to Service Graphics at the delivery point specified above on the expiry of the agreed period of hire or the day on which it is collected by Service Graphics.
11.2 In respect of delivery of the Hire Equipment, for the avoidance of doubt, the provisions of Clause 6 (Delivery) shall apply mutatis mutandis to the delivery of the Hire Equipment.
11.3 Other than where the Customer signs a delivery note (in which case the Customer shall be deemed to have accepted the Hire Equipment without defect or malfunction), the Customer shall report any defects or malfunction in the Hire Equipment within 48 hours of delivery and shall, if so requested by Service Graphics, return the Hire Equipment to the delivery point for inspection by Service Graphics.
If Service Graphics agrees in its absolute discretion that the Hire Equipment is not functioning properly, it shall use all reasonable endeavours (but shall not be bound) to provide a suitable replacement item or items from the stock of Service Graphics as it shall in its absolute discretion consider appropriate.
Subject only to the above, Service Graphics accepts no responsibility for any loss, damage, costs, claims or expenses suffered or incurred by Service Graphics or by any third person (including Service Graphics servants or agents), except that Service Graphics does not by this exclude its liability for death or personal injury arising out of the negligence of Service Graphics, its servants or agents.
This is without prejudice to any other limitation of Service Graphic’s liability pursuant to this Agreement.
11.4 The Hire Equipment shall be under the control of the Customer at all times from delivery until redelivery, and the Customer shall ensure that plant is used safely and is not used for any purpose for which it is not designed or reasonably suitable.
11.5 The Customer shall be responsible for and shall indemnify Service Graphics against all loss or damage caused to or by the Hire Equipment from whatever cause arising.
11.6 The Customer shall keep the Hire Equipment insured against loss or damage and third party risks and shall produce evidence of such insurance to Service Graphics on demand who shall be entitled to withhold delivery until such production.
11.7 The Customer shall not move the Hire Equipment from the Premises without first obtaining Service Graphics written consent (which may be withheld or made subject to such conditions as Service Graphics in its absolute discretion shall decide).
The Customer shall keep the Hire Equipment in its sole possession and shall not lend the Hire Equipment or sublet it to any person or otherwise part with possession of it in any way. The Customer acknowledges that the Hire Equipment remains the property of Service Graphics at all times and must not in any circumstances be sold or used as security. The Customer shall not permit any lien to be created on the plant or pledge Service Graphics credit for repairs to it.
11.8 Service Graphics will maintain the Hire Equipment at its own expense and the Customer shall, when required by Service Graphics, grant access to the Hire Equipment for the purpose of inspecting it and carrying out any work of maintenance or repair.
11.9 The Customer must not repair or attempt to repair the Hire Equipment in the event of damage but must at once notify Service Graphics.
11.10 If the damage has been caused by the fault or carelessness of the Customer or by misuse of the Hire Equipment, the repair will be at the expense of the Customer.
11.11 Service Graphics may substitute other Hire Equipment of a similar type or condition in lieu of repairing the Hire Equipment without relieving the Customer from any responsibility for the cost of repair under these Conditions and without extending the period of hire.
11.12 Nothing in this clause shall affect or diminish the liability of the Customer for any breach of this Agreement or render Service Graphics liable to the Customer for any resultant or consequential loss, damage or inconvenience.
11.13 If the Hire Equipment is returned damaged, the Customer will be liable for the cost of repair or replacement of the Hire Equipment that were hired. Service Graphics will undertake the repair/replacement and will invoice the Customer in full.
11.14 If the Hire Equipment is not returned to Service Graphics or their agents and is deemed lost and irreplaceable, then Service Graphics will invoice the Customer at full retail value for the goods and for the Hire Equipment charge.
11.15 References in this Agreement to the Goods shall (unless the context requires otherwise and where relevant and applicable) include reference to the Hire Equipment and the relevant provisions of this Agreement shall accordingly apply mutatis mutandis to the Hire Equipment.
12. Termination of the Contract
12.1 This clause applies if:
12.1.1 the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
12.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
12.1.3 the Customer ceases, or threatens to cease, to carry on business; or
12.1.4 Service Graphics reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
12.1.5 the Customer is in breach of the provisions of the Contract and fails to remedy the same (if capable of remedy) within 7 days of Service Graphics notifying the Customer of such breach.
12.2 If this clause applies then, without prejudice to any other right or remedy available to Service Graphics, Service Graphics shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Price has not been paid for, the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
13. General
13.1 Service Graphics may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group (i.e. any subsidiary of Service Graphics, any holding company of Service Graphics or any subsidiary of any such holding company), provided that any act or omission of any such other member shall be deemed to be the act or omission of Service Graphics.
13.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
13.3 No waiver by Service Graphics of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
13.5 Each right or remedy of Service Graphics under the Contract is without prejudice to any other right or remedy of Service Graphics whether under the Contract or not.
13.6 Failure or delay by Service Graphics in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract and any waiver by Service Graphics of any breach of, or any default under any provision of the Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.7 The Contract and any documents referred to in it constitute the entire agreement between the parties.
13.8 Service Graphics may assign and/or subcontract the Contract or any part of it to any person, firm or company. The Customer shall not be entitled to assign the Contract or any party of it without the prior written consent of Service Graphics.
13.9 A person who is not a party to the Contract or any other contract between Service Graphics and the Customer shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms. Any recission, variation, amendment or waiver to or of this Contract or any other contract between Service Graphics and the Customer shall not require the consent or approval of any person who is not a party to such a contract.
13.10 The Contract shall be governed by and construed in accordance with the laws of England and Wales and the Customer agrees to submit to the exclusive jurisdiction of the English courts.
Version: April 2008