Terms and Conditions of Sale of Equipment With Warranty
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The following terms and conditions shall apply to the Getronics quotation/order (‘Quotation/Order’) contained herein and to any contract pursuant thereto (this ‘Contract’).
‘Getronics’ means Getronics Services UK Limited.
‘Customer’ means the party purchasing the Equipment from Getronics.
‘Equipment’ means the computer equipment (hardware and/or software) set out in the Quotation/Order.
Getronics shall sell and the Customer shall buy the Equipment for the price shown on the agreed Quotation/Order which offer shall be available to the Customer until the end of the calendar month of the date of the Quotation/Order.
3. PREPARATION OF SITE
The Customer shall, prior to the delivery of Equipment, prepare the installation site in accordance with the manufacture’s instructions. Getronics reserves the right to charge for site preparation work carried out by Getronics.
For Equipment installed by Getronics, Getronics shall perform standard inspection and diagnostic checks. For Equipment designated by Getronics as installable by the Customer, the Customer shall be responsible for Equipment installation in accordance with the instructions provided by Getronics or the manufacturer.
Unless otherwise agreed in writing by Getronics or the Equipment manufacturer, THE EQUIPMENT SUPPLIED HEREUNDER HAS THE MANUFACTURER’S WARRANTY ONLY. Provided Getronics is notified in writing within 48 hours of delivery, Getronics will use reasonable endeavours to repair or replace defective Equipment with new Equipment direct from the manufacturer at no additional cost to the Customer if, upon inspection, Getronics has found such Equipment to be defective in materials or workmanship. The Customer’s remedy under these terms and conditions will be limited to such repair or replacement but Getronics reserves the right to refund the purchase price as the Customer’s sole and exclusive remedy.
6. TERMS OF HARDWARE MAINTENANCE
If Getronics has offered a maintenance service for the Equipment (hereinafter “Hardware Maintenance Service”) on the Quotation/Order and the Customer has accepted such offer, the following terms and conditions shall apply to the Hardware Maintenance Service for the prices stated in the Quotation/Order in addition to the General terms and conditions expressed in section 7 below:
Getronics agrees to provide and the Customer to take and pay for the Hardware Maintenance Service detailed in the Quotation/Order or as otherwise agreed in writing.
Materials and components, excluding consumables, which fail due to normal wear and tear will be replaced. Replacement parts fitted become the property of the Customer and parts removed become the property of Getronics.
If Getronics determines that Equipment requires routine maintenance, the Customer agrees to allow access and time to enable Getronics to carry out such maintenance, providing Getronics gives reasonable notice of the need for routine maintenance. The times for this work to be carried out, to be agreed by both parties.
Getronics shall only be responsible for the rectification of defects in Equipment occurring during the term of the Hardware Maintenance Service.
Getronics reserves the right to charge the Customer for parts and labour when damage necessitating repair has been caused by mis-operation, maltreatment, natural causes (excluding wear and tear due to normal operation), electrical current fluctuations, failures due to work performed by persons other than Getronics unless such persons were approved in writing by Getronics (such approval shall not be unreasonably withheld) or Getronics’ appointed agents and failure by the Customer to carry out routine end user maintenance of the Equipment as recommended by the manufacturer.
The Hardware Maintenance Service shall be provided during the hours of 09:00 and 17:30 Monday to Friday, excluding bank and public holidays or such other hours specified on the Quotation/Order or otherwise agreed in writing. Where the Equipment is being added to another existing Getronics hardware maintenance agreement, Getronics will repair the Equipment within the terms of that agreement.
Getronics reserves the right to make an additional charge to cover all or part of the cost of providing refurbishment for items of Equipment more than five years of age which in its reasonable opinion requires workshop refurbishment. An estimate will be provided prior to any chargeable work being carried out. The Customer may refuse such refurbishment whereupon the Equipment concerned will cease to be covered by the Hardware Maintenance Service and all charges relating to it for any unexpired period of Hardware Maintenance Service will be credited to the Customer on a pro-rata basis.
The Hardware Maintenance Service to be provided under this Contract does not include:i) The provision of operating supplies or accessories including media such as tapes, disk packs, type elements and ribbons; and/or
ii) Performing electrical work external to the Equipment, the maintenance of accessories, attachment or other devices not specified in this Contract or the removal of the Equipment to a different location.
Services shall commence on the date of Getronics’ acceptance of any contract for Hardware Maintenance Service and shall continue for an initial period of one (1) year. Thereafter, they shall automatically be renewed for successive one (1) year period(s) subject to Getronics’ then current prices, terms and conditions until terminated by either party.Termination will only be effective:
i) on an anniversary of the date on which such services began; and/or
ii) where ninety (90) days prior written notice is given by the Customer to expire on the date set out in subclause 6k) i) above
Charges for the Hardware Maintenance Service shall commence prior to the provision of the services. All charges will be invoiced annually in advance unless specified differently on the Quotation/Order or otherwise agreed in writing.
7. GENERAL TERMS AND CONDITIONS
The following terms and conditions shall apply to any Equipment sold and/or Hardware Maintenance Service provided or to be provided to the Customer pursuant to the Quotation/Order:
If the Equipment is not installed by Getronics, Getronics shall be under no obligation to perform any acceptance test procedures and the date of acceptance shall be the date of delivery to the Customer.
Unless otherwise agreed in writing, payment for Equipment (together with delivery and installation charges if any) shall be made thirty (30) days from the date of delivery. Payment for the Hardware Maintenance Service shall be made before the commencement of the Hardware Maintenance Service. Any ad hoc charges arising under this Contract shall be paid within thirty (30) days of invoice. If the Customer fails to make payment when due, then the Customer will in addition pay all costs including reasonable legal fees and a late payment charge at a rate equal to the rate and in the manner provided by the Late Payment of Commercial Debts (Interest) Act 1998, on amounts outstanding until the date of actual receipt by Getronics, together with its costs of enforcing its right to payment under this Contract. Additionally, Getronics may suspend or terminate the provision of any or all of the Hardware Maintenance Service under the Contract.
All payments will be made without set off or counterclaim or any other withholding whatsoever. If in the opinion of Getronics, the financial condition of the Customer at any time does not justify the commencement or continuance of shipment on the terms specified herein, Getronics may, in addition to all other legal or equitable remedies it may have, make a written demand for full or partial payment in advance, suspend its performance until such payment is made, or cancel the Customer’s order without incurring any liability for such suspension or cancellation.
All prices, and licence fees are exclusive of Value Added Tax and any other taxes or charges on the Equipment and the services, which Getronics may be required to pay. These will be added at the rate prevailing at time of invoice.
Getronics will assume risk in the Equipment until delivery to Customer’s premises, the Customer will assume the risk thereafter. Getronics reserves the right to make partial shipments.
If the Customer cancels the delivery of any Equipment (or reschedules and subsequently cancels), the Customer may be charged a cancellation charge of 10% of the Equipment price if notice is given more than thirty (30) days before the scheduled delivery date or 20% if less than thirty (30) days. The Customer agrees that such charge amounts to a genuine pre-estimate of the losses suffered by Getronics on such cancellation.
Until all payments for the Equipment under this Contract have been made to Getronics in full the Equipment shall remain the property of Getronics and the Customer shall maintain the Equipment in such a way that it can be identified as the property of Getronics and shall not dispose of it without Getronics’ written consent.
Customer agrees to maintain in confidence and not to disclose, reproduce or copy any materials, documentation, or specifications, which are provided to the Customer hereunder. The Customer shall take all reasonable steps to ensure that its employees are bound by the same obligations and that such obligations endure beyond any termination of employment by the Customer.
Getronics shall have the right, without prejudice to any other remedies, at any time by giving notice in writing to the Customer to terminate forthwith this contract, in any of the following events:i) If the Customer has not made financial arrangements satisfactory to Getronics pursuant to Clause 7b) above, or if the Customer fails to pay any sums to Getronics on the due date of payment, or;
ii) If the Customer commits any other breach of any of the terms and conditions of this Contract provided that if the breach in question is one which Customer can effectively remedy then the said notice of termination shall not be effective to terminate this Contract unless the Customer fails within thirty (30) days of the date of such notice effectively to remedy the breach complained of, or;
iii) If the Customer ceases to carry on business or a substantial part thereof, commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation whether compulsory or voluntary other than for the purposes of amalgamation or reconstruction or compounds with its creditors generally or has a receiver or manager appointed over all or any part of its assets or suffers execution or distress or takes or suffers any similar action in consequence of debt or becomes unable to pay its debts as they fall due.
The Equipment has been manufactured or developed by Getronics or by third parties to standard specifications. The Customer accepts that Getronics is acting only as a supplier and that it is the Customer’s responsibility to verify that the Equipment will be suitable for its own requirements. There are no warranties, conditions, guarantees or representations as to description, merchantability or fitness for a particular purpose or other warranties, conditions, guarantees or representations whether express or implied by statute or otherwise, oral or in writing except as provided herein and except as to statutory implied terms of title.
Without prejudice to Clause 7x) below, if Getronics without cause fails to perform the Hardware Maintenance Service in accordance with its obligations hereunder the Customer may recover an amount to compensate for any direct physical loss which is suffered as a result of this failure subject always to a maximum aggregate liability in any calendar year of the total annual charges paid or payable for the Hardware Maintenance Service in question.
Getronics shall be liable for death or personal injury arising from the use of the Equipment or performance of the services to the extent that it results from the negligence of Getronics or its employees. Getronics shall also be liable to the Customer for any other direct loss of or damage to tangible property of the Customer caused solely by the negligence of Getronics or its employees subject always to a maximum aggregate liability of £1,000,000.
The Customer agrees that Getronics will not be liable for any loss arising out of the provision of goods or services by any company, organisation or person other than Getronics or for any loss caused by Customer’s failure to perform his obligations in relation to this Contract.
Getronics shall not in any event be liable for any indirect, special or consequential loss, howsoever arising (including but not limited to loss of anticipated profits or of data) in connection with or arising out of the supply, functioning or use of the Equipment, the services, even if Getronics shall have been advised of the possibility of such potential loss and shall not be liable for any loss except as provided in this Contract.
Except in respect of the liability of Getronics for death or personal injury arising from the negligence of Getronics or its employees or in respect of a claim for non payment of monies due under contract, no action, regardless of form, arising out of the transactions in relation to this Contract may be brought by either party more than two years after the cause of action has accrued.
All notices to be given shall be in writing and shall be sent out to the respective addresses of the Customer and Getronics set out in the Quotation/Order or the registered office of the company to be served.
Getronics reserves the right to change specifications of the Equipment and services at anytime without notice and to supply Equipment and services which differs from the specifications agreed between Getronics and the Customer provided that such substitution does not materially affect the performance of the Equipment.
This Contract is not assignable by the Customer without the prior written consent of Getronics any such attempted assignment shall be void.
The Quotation/Order and the terms and conditions herein contained can only be modified by a written agreement signed by duly authorised representatives of both parties. In Getronics’ case this will be the Director of Finance. The parties hereto agree that the terms, conditions, and prices contained herein will prevail notwithstanding any conflicting or additional terms on any orders or other notifications submitted by the Customer.
No failure to exercise, and no delay in exercising, on the part of either party, any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege hereunder preclude further exercise of the same right or the exercise of any right hereunder.
The invalidity or unenforceability for any reason of any part of these terms and conditions shall not prejudice the continuation in force of the remainder of the terms and conditions.
Any Contract made under these terms and conditions shall be deemed to have been made in, and shall be construed in accordance to the laws of England.
No liability shall attach to Getronics, its agents or employees, in respect of any representations, other than fraudulent misrepresentations, made or advice given whether before or after the signature of this Quotation/Order by the Customer unless confirmed in writing by Getronics. Written representations made by Getronics prior to acceptance of this Quotation/Order shall only be binding if reconfirmed in writing immediately prior to its signature.
Neither party shall be liable to the other for any delay in or failure to perform its obligations hereunder (other than a payment of money) provided that such delay or failure is due to causes beyond its reasonable control.
The parties do not intend any term of this Contract to confer rights on a person who is not a party to this Contract, by virtue of the Contracts (rights of Third Parties) Act 1999.
THE CUSTOMER ACKNOWLEDGES THAT HE HAS READ THESE TERMS AND CONDITIONS AND UNDERSTANDS AND AGREES TO BE BOUND BY THEM. THE CUSTOMER FURTHER AGREES THAT THIS QUOTATION/ ORDER IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE MUTUAL UNDERSTANDING OF THE PARTIES AND SUPERSEDES AND CANCELS ALL PREVIOUS WRITTEN AND ORAL AGREEMENTS AND COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS CONTRACT.