1.1 “The Company” – shall mean HRG (UK) Limited, a company incorporated in England and Wales with Company registration number 02527817.
1.2 “The Client” – shall mean the person or company that buys or agrees to buy goods and/or services from the Company.
1.3 “Conditions” – shall mean the terms and conditions of sale set out in this document and/or any other terms and conditions agreed in writing by the Company.
1.4 “the Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data and privacy including the Data Protection Act 1998, the General Data Protection Regulation 2016 (“GDPR”), the Privacy and Electronic Communications Regulations 2003 and any and all replacement, subsequent, implementing or additional legislation as amended from time to time
1.5 “Working Day” – shall mean Monday to Friday inclusive, excluding statutory Bank Holidays.
2. Conditions Applicable
2.1 These conditions shall apply to all contracts for sale of goods and/or services by the Company to the Client to the exclusion of all other terms and conditions, including warranties and conditions implied by statute and/or common law, to the fullest extent possible save for standard industry practice. For the avoidant of doubt, these conditions shall not include any terms and conditions which the Client may purport to apply under any of their documentation, correspondence or elsewhere or implied by practice or course of dealing unless otherwise agreed in writing by the Company. In the event of disparity between these terms and standard industry practice these terms shall prevail.
2.2 Accepting the delivery of goods or commencement of the providing of services shall be deemed conclusive evidence of the Client’s acceptance of these conditions.
2.3 Any variation to these conditions shall not apply unless agreed in writing by the Company.
3. Estimates and Quotations
3.1 Estimates and Quotations are valid for one month from the date thereof.
3.2 The Company reserves the right to withdraw or revise any estimate at any time prior to the Client contracting for goods and/or services.
3.3 A ‘Quotation’ is a fixed price given only against a fixed specification, and as such the Company does not undertake to hold a quoted price if, for any reason, the specification changes. Specification will include time allowed on a project.
3.4 Each contract shall come into existence once the Client has confirmed in writing its acceptance of the Company’s Quotation.
3.5 The Client must ensure that the terms of its specification are complete and accurate.
4.1 Visuals and/or Proofs of all work whether it is design, print and/or advertising production will be submitted for a Client’s approval, or that of an authorised agent or representative. If the Client wants to limit who in its organisation can give such approval it must specify so, and the people who can give such approval, in its acceptance of the Quotation.
4.2 Authors corrections, including alterations to originally briefed and agreed style, and the costs of additional visuals necessitated by such changes will be charged extra and may impact on the due delivery date.
4.3 Final proofs will be submitted for a Client’s approval and thereafter no responsibility will be accepted by the Company for any errors not corrected therein. The Company accepts no responsibility for correctness of proofs if the Client instructs the Company to proceed without examining proofs.
5. Price and Payment
5.1 The price shall be the Company’s estimated or quoted price or the price set out in any revised estimate or Quotation unless amended in accordance with clauses 3.3, 4.2, 6.1, 6.5 and 7.2.
5.2 The price is exclusive of VAT, which shall be due at the rate ruling on the date of the Company’s invoice.
5.3 Payment for the goods and services is due 30 days from the invoice date.
5.4 The Company reserves the right to charge interest at NATWEST BANK base lending rate plus 3% on any overdue account, accruing on a daily basis until payment is made, whether before or after any judgement. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
5.5 The Client shall make all payments due under the Contract without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise unless the Client has a valid Court Order requiring an amount equal to such deduction to be paid by the Company to the Client.
5.6 Prior to commencing work on any order, the Company reserves the right to charge a deposit of 30% of the order value or the value of any third party costs it will incur in fulfilling the order, whichever is the higher and such payment shall be due immediately and the Company will be entitled to refrain from incurring any third party liability or starting any work even if this adversely affects the proposed delivery date pending receipt of the deposit.
5.7 In the event that the Client fails to comply with the payment terms set out in this clause 5, the Company shall at its own discretion be entitled to suspend the provision of goods and/or services, or the provision of further goods and/or services, to the Client under each contract until such time as the Client remedies its default.
6. Delivery and Production
6.1 Unless otherwise specified the price is for delivery of the work to the client’s address as set out in the estimate. A charge may be made to cover any extra costs involved for delivery to a different address.
6.2 Should work be suspended at the request of, or delayed through any default of the Client for a period of 30 days the Company shall then be entitled to payment for work already carried out, materials specially ordered, storage and any other additional costs.
6.3 Any complaint of short delivery or of damage to goods in transit must be notified to the Company within five Working Days of receipt of the goods.
6.4 Any complaint of failure to deliver goods invoiced must be so notified within ten Working Days of the date of invoice.
6.5 Reasonable endeavours will be made to deliver the correct quantity ordered but estimates are conditional upon margins of 5% being allowed for overs or shortages, the same to be charge or deducted.
6.6 Any date specified by the Company for delivery of the goods is intended to be an estimate and time for delivery shall not be of the essence.
6.7 If for any reason the Client will not accept delivery of the goods when they arrive at the Client’s premises:
6.7.1 risk in the goods will pass to the Client;
6.7.2 the goods will be deemed to have been delivered; and
6.7.3 the Company may store the goods until delivery, whereupon the Client
will be liable for all related costs and expenses (including without limitation storage and insurance).
7. Urgent Contracts
7.1 Where the Client specifically requests that production of work and/or delivery of goods be expedited in a time span not normally accepted by the Company, reasonable efforts will be made to comply. Though reasonable efforts will be made to ensure the product is free from defects, the Client must make reasonable allowances.
7.2 Should such delivery necessitate overtime being worked or other additional costs being incurred an additional charge will be made to cover the increased cost.
7.3 The Company will not be liable to the Client if as a result of the expedited production the quality of the goods is of a lower standard than that produced by the Company in the ordinary course of business.
8. Standing Materials
8.1 Data may be erased and/or origination scrapped immediately after the order is executed unless written agreements are made to the contrary.
8.2 The Company shall be entitled to destroy all other materials in their custody two years after its creation or delivery to the Company (whichever is later) unless it continues to be used for the Client’s work, or after one month’s notice given to the Client at such earlier time as the Company think reasonable.
9. Materials Supplied by Client
9.1 Client’s property when supplied will be held at the Client’s risk.
9.2 Care will be taken to secure the best results but the Company accepts no responsibility for imperfect work caused by defects in or unsuitability of materials supplied by the Client unless caused by the negligence of the Company.
9.3 The Company may reject any materials supplied or specified by the Client, which appear to the Company to be unsuitable. Additional cost incurred if materials supplied by the Client are found to be unsuitable during any production process will be charged as extra.
9.4 The Company shall not be required to produce work, which in their opinion is of an illegal or libellous nature, or any infringement of proprietary rights or other rights of any third party.
10 Intellectual Property Rights
10.1 For the purpose of these conditions, “Intellectual Property Rights” means: any patents, rights to inventions, copyright and related rights, moral rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
10.2 The Client warrants that it is the sole owner of all Intellectual Property Rights in any artwork provided by the Client to the Company, save where otherwise notified to the Company in writing. Where the Client is not the sole owner of all Intellectual Property Rights in any artwork provided by the Client to the Company the Client warrants that it has acquired the right to use such artwork and to engage the Company to use the same.
10.3 The Client further warrants that any artwork provided by the Client to the Company does not contain anything that is defamatory or indecent and that it does not infringe the statutory or common law rights of any third party.
10.4 The Client shall indemnify the Company against any and all loss, damages or costs sustained by the Company arising from any breach by the Client of its warranties under this clause 10. At the Company’s request, and at the Client’s own expense, the Client shall provide all reasonable assistance to enable the Company to resist any claim, action or proceedings brought against the Company as a consequence of that breach. For the avoidance of doubt, the indemnity shall extend to any amounts paid on a lawyer’s advice in settlement of any claim, including legal costs.
10.5 All Intellectual Property Rights in original artwork created by the Company on behalf of the Client (save where the Intellectual Property Rights are already owned by the Client and/or a third party) shall be the property of the Company and shall remain vested in the Company. Upon completion of the Company’s work in respect of each contract for sale of goods and/or services by the Company to the Client, and upon the Client’s written request, the Company shall assign to the Client all Intellectual Property Rights as are vested in the Company in original artwork created by the Company on behalf of the Client provided that the Client has complied with all of its obligations under the contract including for the avoidance of doubt payment in full of all invoices in respect of the goods/services provided by the Company under the relevant contract.. Any such assignment must be completed in writing and signed on behalf of the Company.
10.6 The Company shall retain any and all Intellectual Property Rights in all presentation or pitch materials prepared by the Company, in competition with any other agency, in the event that such pitch or presentation is unsuccessful. Further, the Company shall retain any and all Intellectual Property Rights in any other material produced speculatively by the Company, whether or not such material is produced in competition with any other agency, in the event that such material is not used by the Client.
10.7 The Client shall immediately give notice in writing to the Company if it becomes aware, whilst the Intellectual Property Rights in any original artwork created by the Company remain vested in the Company, of:
10.7.1 any infringement or suspected infringement of and of the Intellectual Property Rights; or
10.7.2 any claims made or threatened that the Intellectual Property Rights infringe the rights of any third party and the Company shall, in its sole discretion decide what if any action to take and if it so elects shall have sole control over and conduct of all claims and proceedings. The Client shall provide, at its own cost, all assistance that the Company may reasonably require in the conduct of any claims or proceedings. The Company shall bear the cost of any claims and proceedings of which it has conduct and shall be entitled to retain all sums recovered in any such action for its own account.
10.8 The Company reserves the right to reproduce any artwork created by the Company on behalf of a Client for the purpose of its own promotion unless the Client specifies otherwise in writing upon accepting the Quotation.
11. Data Protection and Privacy
11.2 In the event that the Data Protection Legislation changes in a way that these terms are no longer adequate for the purpose of governing lawful data processing exercises, the parties will negotiate in good faith to amend this clause in light of such new legislation.
11.2 Where for the purposes of the provision of any services by the Company, the Client provides any third party personal data (“3rd Party Data”) to the Company:
- a) the Company will process such 3rd Party Data provided by the Client in accordance with the provisions of the Data Protection Legislation and shall ensure that it has in place appropriate technical and organisational measures to ensure compliance with the Data Protection Legislation and to ensure the rights of the Data Subject.
- b) For the purposes of the Data Protection Legislation the Client shall be the Data Controller (as defined in the Data Protection Legislation) of the 3rd Party Data and the Company shall act only as a Data Processor (as defined in the Data Protection Legislation) .
- c) The Company shall process the 3rd Party Data solely for the purpose of providing the Client with the agreed services and as instructed by the Client in writing including with regards to transfers of the 3rd Party Data to third countries or international organisations (unless legally obliged to do so and shall in those circumstances, unless legally prohibited from doing so, notify the Client before making any such transfer)..
- d) The Company shall keep the 3rd Party Data confidential and shall ensure that all persons authorised to process it have committed themselves to confidentiality.
- e) The Company shall not without the Client’s express prior authorisation, divulge any 3rd Party Data to any other person, company or organisation including any sub-processor (“Other Persons”), unless legally obliged to do so, and then only on a strictly confidential basis and on terms which require such Other Persons to equally comply with the Data Protection Legislation.
- f) The Company will use all reasonable endeavours to keep the 3rd Party Data safe from unauthorised or unlawful processing or accidental loss and shall put in place appropriate technical and organisational measures to ensure compliance with the Data Protection Legislation including to ensure the security of processing in accordance with Article 32 of the GDPR, to assist you in responding to requests from such third parties in relation to their data subject rights as laid down by the Data Protection Legislation and in particular Chapter III of the GDPR and to assist you in complying with the obligations set down in Articles 32 to 36 of the GDPR taking account of the nature of the processing and the information available to the Company..
- g) The Company shall delete or return to you as you require any 3rd Party Data once the provision of the services comes to any end and it is no longer necessary for the Company to process the same or at your earlier request unless required by law to retain it;
- h) The Company shall make available to you all information necessary to show the Company’s compliance with this clause and its obligations under the Data Protection Legislation and shall allow for and contribute to audits , including inspections, conducted by the Client or another auditor appointed by the Client;
i). The Company shall not transfer any 3rd Party Data outside the European Economic Area without the Client’s express prior approval.
- j) The Company shall immediately notify the Client if it considers that any instruction given by the Client infringes the Data Protection Legislation.
11.3 Where the Company is required by the Client to process any 3rd Party Data the parties shall enter into a Data Protection Schedule specifying the specific subject matter, duration, nature and purpose of the processing together with details of the types and categories of the data subjects whose data is to be processed and the obligations and rights of the Client as data controller. Any such Data Protection Schedule shall expressly incorporate the data protection provisions of this clause 11.
11.4 The Client acknowledges that the Company is reliant on the Client for direction as to the extent to which the Company is entitled to use and process the personal data. Consequently, the Company will not be liable for losses, costs, claims, fines, damages or expenses incurred by the Company or for which the Company may become liable arising from any action or omission by the Company, to the extent that such action or omission resulted directly from the Client’s instructions and the Client hereby agrees to indemnify and hold harmless the Company in respect of any such losses, costs, claims, fines, damages or expenses incurred by the Company or for which the Company may become liable
12. Limitation of Damages
12.1 Nothing in these Conditions excludes or limits the Company’s liability:
12.1.1 for death or personal injury caused by the negligence of such party;
12.1.2 resulting from any fraud including without limitation fraudulent misrepresentation made by such party; or
12.1.3 for which liability may not otherwise lawfully be limited or excluded.
12.2 Subject to Clause 12.1 in no event shall either party be liable to the other under contract negligence or otherwise for any special loss including direct loss of profits nor for any indirect or consequential damages (including indirect loss of profit, business interruption, loss of sales, loss turnover, loss of opportunity, loss of anticipated savings, loss of data and/or loss of inaccuracy or information either than fraudulent misrepresentation) even if the loss was reasonably foreseeable or either party has been advised of the possibility of such damages.
12.3 Subject to clause 12.1 the Company’s aggregate liability to the Client whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed the costs of the goods and/or services which gives rise to such liability in respect of any occurrence or series of occurrences.
13. Force Majeure
13.1 Neither party shall be liable for any default due to any Act of God, war, strike, lockout industrial action, fire, flood, draught, tempest, or any event beyond the reasonable control of either party provided it informs the other party of such an occurrence as soon as reasonably practicable.
14. Title and Risk
14.1 The risk passes to the Client at the point when the goods are delivered to the Client’s premises or such other address as specified by the Client.
14.2 Ownership of the goods shall not pass to the Client until the Company has received in full (in cleared funds) all sums due to it in respect of:
14.2.1 the goods; and
14.2.2 all other sums which are or which become due to the Company from the Client on any account.
14.3 The Client’s right to possession of the goods shall terminate immediately if the Client has a Bankruptcy Order made against him or makes an arrangement or composition with his Creditors or otherwise takes the benefit of any 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 any Court for the winding up of the Client or for the granting of an Administration Order in respect of the Client or any proceedings are commenced relating to the Insolvency or possible Insolvency of the Client.
14.4 The Company shall be entitled to recover payment for the goods notwithstanding that ownership of any of the goods has not passed from the Company.
14.5 The Client grants the Company, 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 to recover them.
15.1 Where the Company is not the manufacturer of the Goods, the Company will endeavour to transfer to the Client the benefit of any warranty or guarantee given to the Company.
15.2 The Company warrants that (subject to the other provisions of these Conditions) upon delivery and for a period of 3 months from the date of delivery, the Goods will:
15.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979 (as amended by the Supply of Goods and Services Act 1994);
15.2.2 be reasonably fit for the purpose for which the Goods are being order as specified in the Quotation
15.3 The Company shall not be liable for a breach of any of the warranties in condition 15.2 unless:
15.3.1 the Client gives written notice of the defect to the Company, and (if the defect is as a result of damage in transit) to the carrier, within 10 days of the time when the Client discovers or ought to have discovered the defect; and
15.3.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Client (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Client’s cost for the examination to take place there.
15.4 The Company shall not be liable for a breach of any of the warranties in condition 15.2 if:
15.4.1 the Client makes any further use of such Goods after giving such notice; or
15.4.2 the defect arises because the Client failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
15.4.3 the Client alters or repairs such Goods without the written consent of the Company.
15.5 Subject to conditions 15.3 and 15.4, if any of the Goods do not conform with any of the warranties in condition 15.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Client shall, at the Client’s expense, return the Goods or the part of such Goods which is defective to the Company.
15.6 If the Company complies with condition 15.5 it shall have no further liability for a breach of any of the warranties in condition 15.2 in respect of such Goods.
16. Governing Law
All aspects of this Contract shall be governed by English Law and the parties submit to the exclusive jurisdiction of the English Courts.
The Parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999 by any person that is not a party to it.
18.1 Any waiver by the Company of any breach of, or any default under any provision of the Contract by the Client will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
18.2 Failure or delay by the Company 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.
The warranty provided is for 12 months, covering materials, manufacturing and where applicable, installation.
In all cases the faulty component(s) will be replaced free of charge. The process for this is as follows:
- Fault notified to HRG
- Claim verified or rejected (photographic evidence will be required)
- If verified, the warranty will cover will be on the basis of ‘return to base’ and a replacement sent
Initial response will be within 1 working day and remedial action agreed within 48 hours. Items not covered will be quoted for each occurrence.
Items not covered by the guarantee:
- Supplied hardware/software such as machines, screens etc, which will require warranty by the supplier of the product
- Damage caused to the display unit when servicing supplied machines i.e. no warranty is provided for damage caused by a third party
- Normal wear and tear, specifically: scratches, dents, scuffs, dirt etc
- Wilful or accidental damage
- Negligence or misuse or use other than intended
- Failure to follow instructions during normal operation
- Careless handling, specifically: Forcing and/or using excessive force to door(s), locks and/or individual components, attaching or hanging or placing objects onto or adjacent to the unit.
- Modifications/alterations/servicing and repair by a third party
- Theft of any components
- Claims for missing parts or damage once the product has been installed and signed off
- Repair costs for damage caused by foreign objects or substances
- Compensation for loss of use of the unit or consequential loss of any kind