Terms and Conditions
A. GENERAL
A1. Definitions
"Copy or Copies" shall mean copies or prints up to A4 size paper, per side, other larger paper sizes charged pro-rata.
"Copy Charge" means the copy charge specified on page 3 of this Agreement.
"Customer" means the person body company or corporation whose name and address appears on page 2 of this Agreement.
"Product (s)" means the products listed on pages 2 and 3 of this Agreement.
"The Company" means Konica Minolta Business Solutions (UK) Limited.
"Location" means the address specified as such on page 3 of this Agreement.
"Maintenance Charge" means the maintenance charge specified on page 3 of this Agreement.
"Working Hours" shall mean 9.00 am to 5.30 pm Mondays to Fridays inclusive (Bank Holidays and other statutory holidays excepted).
A2. Limitation of Liability
Except in respect of death or personal injury caused by The Company's negligence, The Company shall not be liable to the Customer for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of The Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Products or the provision of the maintenance services.
A3. Force Majeure
The Company 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 The Company's obligations in relation to the Products if the delay or failure was due to any cause beyond The Company's reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond The Company's reasonable control:-
i. Act of God, explosion, flood, tempest, fire or accident;
ii. War or threat of war, sabotage, insurrection, civil disturbance or requisition;
iii. Acts, restrictions, by-laws, prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;
iv. Import or export regulations or embargoes;
v. Strikes, lock outs or other industrial actions or trade disputes (whether involving employees of The Company or of a third party);
vi. Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
vii. Power failure or breakdown in machinery.
A4. Value Added Tax
All prices and charges are subject to the addition of value added tax at the appropriate rate ruling at the tax point for these charges.
A5. Governing Law
This Agreement is governed by English law and in the event that any of the Clauses in this Agreement are ruled invalid by an English Court of law where alteration or deletion of all or part of such Clause would render it valid within the general meaning of this Agreement then this Agreement will be taken to stand with such reasonable deletion or alteration as is required to render the Agreement valid.
A6. Waiver
No failure of The Company to enforce at any time or for any period of time any of the provisions of this Agreement shall be construed as a waiver of any such provisions or a waiver of the right of The Company thereafter to enforce each and every such provision.
A7. Entire Agreement
This Agreement contains the entire agreement and understanding of the parties with respect to its subject matter and supersedes all prior Agreements, written or oral, with respect thereto and The Company and the customer each acknowledge that it is not being induced to enter into this Agreement by reason of any representation made by or on behalf of the other.
A8. Notices
Any notice given under this Agreement shall be in writing and may be served in person, or by registered or recorded delivery mail, or by telex or by facsimile transmission (the latter confirmed by telex or post). Each party's address for the service of notice shall be as stated on the Agreement or such other address as it specifies by notice to the other. A notice shall be deemed to have been served if it was served in person at the time of service, if it was served by post 48 hours after it was posted, and if it was served by telex or facsimile transmission, at the time of transmission.
B. SALE
B1. Basis of Sale
Subject to The Company being satisfied as to the results of any evaluation of the Customer's network/software environment as referred to in the notes on page 2 of this Agreement The Company shall supply to the Customer the Equipment subject to these conditions which shall govern the Agreement between The Company and the Customer to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made by the Customer. This Agreement shall not be binding on The Company until it is signed by The Company's authorised representative.
B2. Payment Terms
All payments in respect of the supply of the Products shall be payable within 7 days of the date of The Company's invoice. If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to The Company, The Company shall be entitled to charge the Customer interest (both before and after judgment) on the amount unpaid, at the rate of 3% per annum above National Westminster Bank Plc base 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).
B3. Delivery
Any dates quoted for delivery of the Products are approximate only and The Company shall not be liable for any delay in delivery of the Products howsoever caused. Time for delivery shall not be of the essence unless previously agreed by The Company in writing. The Products may be delivered by The Company in advance of the quoted delivery date upon giving reasonable notice to the Customer.
B4. Risk
Risk of damage to or loss of the Products shall pass to the Customer:-
i. In the case of Products to be delivered at The Company's premises, at the time when The Company notifies the Customer that the Products are available for collection; or
ii. In the case of Products to be delivered otherwise than at The Company's premises, at the time of delivery, or if the Customer wrongly fails to take delivery of the Products, the time when The Company has tendered delivery of the Products.
B5. Property
Notwithstanding delivery and the passing of risk in the Products, or any other provision of these conditions, the property in the Products shall not pass until The Company has received in cash or cleared funds payment in full of the price of the Products and all other goods and services agreed to be sold or supplied by The Company to the Customer for which payment is then due. Until such time as the property in the Products passes the Customer shall hold the Products as The Company's fiduciary agent and bailee, and shall keep the Products separate from that of the Customer and third parties and properly stored, protected and insured and identified as The Company's property.
B6. Warranty
The Company warrants that the Products will correspond with its specification at the time of delivery and will be free from defects in material or workmanship. Any claim by the Customer which is based on any defect in the quality or condition of the Products or its failure to correspond with specification shall be notified to The Company within 3 days from the date of delivery. If the Customer does not notify The Company accordingly, the Customer shall not be entitled to reject the Products.
C. MAINTENANCE
C1. Commencement
This Agreement comes into force upon the signature of the Customer and a person authorised by The Company and shall commence on the date on which the Products are installed. In the case of Products at the Location and on which the Customer has already been making payments to the Company for service and/or maintenance prior to the signature of this Agreement then this Agreement shall commence on the Start Date.
C2. Period of Agreement
This Agreement will continue until either party gives a minimum of twelve months' written notice to terminate. The charges due in the notice period shall be the greater of the following:-
i. Charges for actual copies used during the notice period
OR
ii. Twelve months charges based on the average monthly copy volume of the machine measured over the total installed life of the machine.
OR
iii. Twelve months charges calculated using the minimum copies included in the Maintenance Charge as set out on page 3 overleaf.
All copy charges will be calculated using the copy charge per copy in force at the time of commencement of the notice period.
Unexpired periods of pre-paid service charges are not refundable.
All Products may be subject to additional maintenance charges after 5 years in respect of product which is new at the time of installation, and after 3 years in respect of second-hand product.
C3. Services
The Company will subject to the due performance by the Customer of its obligations under this Agreement, including, in particular, but without prejudice to the generality of the foregoing, its obligations under paragraph C7, provide maintenance services (subject to paragraph C4) in respect of the Products at the Location as follows:-
i. Routine maintenance service and regular checks as deemed necessary by The Company.
ii. Prompt emergency repair visits to deal with breakdowns and operational problems within Working Hours when notified by the Customer unless other arrangements are expressly agreed in writing between the parties. This shall apply to stand-alone copying functionality only unless a Konfidence Plus contract is in effect at the time, which will provide the Customer with service support on connectivity aspects equivalent to that relating to stand-alone products. (See C4 (v) below)
iii. Parts, consumables and labour within the maintenance charges and/or copy charges except paper, staples and those subject to exclusions in paragraph C4.
iv. Intervention with Customer network or other systems as necessary to facilitate remedial activity, only subsequent to the Company's Permit To Work being authorized by an appropriately responsible person within the Customer organisation.
C4. Exclusions
The Maintenance Charges and/or the Copy Charges shall not cover repair and/or maintenance and the Customer shall be charged separately and additionally;
i. If the repair and/or maintenance is necessitated by damage or defect due to theft, fire, water, accidental, neglect, careless or wrongful usage of the Products or accessories including paper that has not been approved by The Company, or Products/software used to generate print activity other than that provided by The Company is found to be at fault, failing properly to perform, or different from that previously understood by The Company to be in use in relation to the Products.
ii. If Products, except Products using digital reproduction process, are used to copy, duplicate or reproduce in colours other than single black then consumables and supplies required for any other such colours may be chargeable to the Customer at prices ruling at the time.
iii. If a Product uses digital colour reproduction, the copy charge may exclude toner. Where chargeable toner will be chargeable to the Customer at prices ruling at the time of delivery of the toner.
iv. For Black toner for each item of Products for which Black toner is shown as not included on page 3 of this Agreement.
v. For Product functionality associated with connection to other devices (whether as a printer, facsimile, scanner or other) which is subject to an additional service charge, payable either as an all-inclusive periodic charge or, in the absence of this, on a per-visit basis at The Company's charges prevailing at the time of such a visit.
vi. Maintenance of Konica Minolta desk-top printers and Oki facsimile products are excluded from this contract. Maintenance of these products will be supplied by an agency other than Konica Minolta, details being available from The Company upon request.
C5. Customer's Breach
Parts, consumables or labour supplied to the Customer as a result of the Customer being in breach or whilst the Customer is in breach of any of the conditions or undertakings in this Agreement will be charged to the Customer at The Company's list price ruling at the time.
C6. Special Operators
The Customer agrees to appoint one or more special operators of the Products from among its staff to ensure that the Products are operated correctly and to provide The Company with information on a periodic basis of:-
a. Meter readings on a monthly or quarterly basis as agreed and as required.
b. Reports of faults, breakdowns and operational problems.
c. Requests for regular service maintenance when applicable.
The Company shall provide training for a maximum period of half a day for up to four special operators free of charge on The Company's premises or if required on the Customer's premises, but all incidental expenses incurred by The Company such as travel, subsistence, accommodation etc. will be chargeable separately to the Customer. Longer periods of training and/or the provision of training for additional special operators may be invoiced separately by The Company.
C7. Payment of Charges
The Customer shall pay in advance to The Company Maintenance Charges and thereafter for Copy Charges if applicable and any other charges made within 30 days of receipt of invoice or according to payment terms as from time to time made known to the Customer at the discretion of The Company. If a Customer does not meet the payment terms specified then The Company reserves the right to suspend all service and/or maintenance until all monies due are paid in full and to charge interest on overdue amounts, both before and after judgment, at 3% per annum above National Westminster Bank Plc base rate.
C8. Increase in Charges
The Company may increase the Maintenance Charges and the Copy Charges payable under this Agreement with effect from any date or dates on or after the first anniversary of the date on which the Products are installed by not less than 90 days prior written notice to the Customer provided that:-
i. The Company may only so increase the said charges with effect from one date in each year of the Agreement; and
ii. Any such increases shall be by an amount not exceeding 9% of the said charges payable immediately preceding the date upon which the increase is to take effect.
C9. Customer's Undertakings
The Customer undertakes to:-
i. Keep the Products at the Location and not to move them without The Company's written consent such consent not to be unreasonably withheld but which may cause revision to this Agreement;
ii. Grant The Company and its representatives reasonable access to the Products during working hours to perform repair inspection maintenance or other work deemed necessary by The Company;
iii. Provide The Company with accurate copy usage meter readings through mailing a meter reading card provided by The Company or any other reasonable means as may be from time to time requested.
C10. Estimates
The Company reserves the right to make reasonable estimates for copy usage and to invoice the Customer on that basis if actual usage is not advised by the Customer by the due date. Any adjustment in relation to actual usage for the relevant period will be taken into account in the next invoice based upon a meter reading supplied by the Customer or obtained by The Company.
C11. Drums and Consumables
Drums (if fitted) and all other consumables not separately paid for in full by the Customer remain the property of The Company until used whereupon the Customer shall be liable to pay The Company a charge therefor based upon actual or estimated usage in accordance with maintenance charges and/or copy charges. The Customer shall further be liable to pay separately for unused drums and consumables when the Products are sold, transferred or ceases to be used.
C12. Products
nsofar as this Agreement relates to more than one item of Product it shall be a separate and severable contract in respect of each such item of Product.