1 APPLICATION OF CONDITIONS
1.1 These Conditions shall apply and shall be incorporated into any contract between us where we have accepted your order, or you have accepted our quotation, for our Services (Contract).
1.2 These Conditions will prevail over any inconsistent terms or conditions contained or referred to in your purchase order, confirmation of order, acceptance of quote or in any other document. Your standard terms and conditions shall not govern the Contract.
1.3 If you place an order with us or accept a quotation for Services by us, this constitutes an offer by you to purchase the Services subject to these Conditions.
1.4 No offer placed by you shall be accepted by us unless we issue you with written order confirmation (which we may send to you by email) setting out the details of the Contract, at which time the Contract between us shall be made.
1.5 Any quotation given by us is valid for a period of 30 days from its date unless we have previously withdrawn it.
2. OUR OBLIGATIONS
2.1 We shall use reasonable efforts to provide the Services within any agreed timescales, but any such dates shall be estimates only and time shall not be of the essence.
3. YOUR OBLIGATIONS
3.1 You shall:
(a) co-operate with us in all matters relating to the Services; and
(b) provide us in a timely manner with all documents, designs and other images, data, specifications and other materials as we reasonably require allowing us to perform the Services (Your Materials).
3.2 Where the Services include the application of graphics or wrapping to a vehicle, you agree to:
(a) ensure that the vehicle is supplied to us in such newly washed and clean state as we shall specify so as to ensure that we can provide the Services to a satisfactory standard. If additional cleaning is reasonably required in preparation for such Services we reserve the right to levy an additional charge for such cleaning, unless the Contract already makes a specific allowance for such vehicle preparation.
(b) satisfy yourself (perhaps by seeking the independent advice of a third-party bodywork expert, vehicle manufacturer or garage) that the surface of your vehicle is sound and suitable for the application and/or removal of graphics or vehicle wrapping.
3.3 You shall be responsible for the accuracy and completeness of Your Materials provided to us in accordance with the provisions of condition 3.1. Where Your Materials include the supply of any artwork to us you will ensure that is in such form, format, or quality as we may specify in order for us to fulfil our obligations under these conditions or any Contract.
3.4 If our performance of our obligations under any Contract is prevented or delayed by any act or omission by you, your agents, sub-contractors or employees we will not be liable for any costs, charges or losses suffered or incurred by you as a result.
3.5 You shall be liable to pay us, on demand, all reasonable costs, charges or losses suffered or incurred by us (including any direct, indirect, or consequential losses, loss of profit, loss or damage to property or persons) arising directly or indirectly from your fraud, negligence, failure to perform or delay in performing any of your obligations under the Contract, subject to us confirming such costs, charges and losses to you in writing.
3.6 The provisions of condition 3.5 will apply, for example, where you cancel, delay or postpone any Contract and/or the delivery to us of any vehicle to allow us to provide the Services on the scheduled date. In such circumstances, we reserve the right to charge you the full amount otherwise due under the Contract in our sole discretion.
4. CHANGE CONTROL
4.1 If either party requests a change to the nature or scope of the Services under any Contract, we shall within a reasonable time, provide you with a written estimate of the likely time required to implement the change and any impact of the change on the terms of the Contract, such as price changes.
4.2 If you wish us to proceed with the change, we have no obligation to do so until each of us has agreed in writing on the necessary variations to the Contract to take account of the change. Until such time as such written agreement has been obtained, the Contract will continue in accordance with its original terms.
5. CHARGES AND PAYMENT
5.1 Condition 5.2 applies where we are providing the Services on a time and materials basis. Condition 5.3 applies if we are providing the Services for a fixed price. The remainder of condition 5 applies in either case.
5.2 Where we are providing the Services on a time and materials basis:
(a) our charges for the Services are based on our standard daily fee rates for an eight hour day (worked between 8.00 am and 5.00 pm on weekdays, excluding public holidays), as amended from time to time;
(b) we are entitled to charge an overtime rate of 150% of the normal daily fee on a pro-rata basis for any individuals providing the Services outside the hours referred to in (a) above;
5.3 Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in our written acceptance of order under condition 1.4. Our usual payment terms, as detailed in our order confirmation, will provide for the payment of a deposit (non-refundable, except as provided in condition 9) prior to the commencement of the Services and the balance due on completion of the Services. In some circumstances, however, we may request payment in full in advance for the Services.
5.4 Where you have provided us with credit, debit or charge card details for payment of the deposit, you agree that we may use the same card details for collection of the balance when due without further notice to you.
5.5 In exceptional circumstances we allow credit facilities to certain customers with whom we have an established trading relationship. If we grant you such rights, which will be confirmed in our order acceptance, you shall pay each invoice submitted to using full and cleared funds, without deduction or set-off, within 30 days of receipt.
5.6 Without prejudice to any other right or remedy we may have, if you fail to pay us on the due date, we may:
(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of The Bank of England, accruing on a daily basis and being compounded quarterly until payment is made (whether before or after any judgment) and we may claim interest under the Late Payments of Commercial Debits (Interest) Act 1998; and/or
(b) suspend all Services until payment has been made in full.
5.7 Time for payment shall be of the essence of the Contract.
5.8 All sums payable to us under the Contract shall become due immediately on its termination, despite any other provision. This condition 5.8 is without prejudice to any right to claim for interest under the law or any such right under the Contract.
5.9 Where you request us to collect or deliver a vehicle or other item and such transport has not already been agreed in our order confirmation, we reserve the right to levy a charge of £10.00plus VAT per mile from our premises to the collection and delivery point.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Our Intellectual Property Rights (as defined in condition 6.3) are a vital asset of our business and we shall use such legal remedies as are available to us to protect us against unauthorised use of those Intellectual Property Rights.
6.2 Save as provided in conditions 6.4 and 6.5, all Intellectual Property Rights and all other rights in the products and materials delivered by us under the Contract (Deliverables) and in any information and materials provided by us relating to the Services which existed prior to the Contract (Pre-existing Materials) shall be owned by us. Subject to condition 6.4 we license all of our rights in the Deliverables and the Pre-existing Materials to you free of charge and on a non-exclusive worldwide basis only to such extent as is necessary to enable you to make reasonable use of the Deliverables and the Services once the Contract between us has been formed. Any other use, whether by you or any third party, (including the use of any Pre-existing Materials which have been provided to you in circumstances where we do not subsequently enter into a Contract for the provision of Services to you) shall be subject to our prior written consent. If we terminate any Contract under condition 11.1, this license will terminate.
6.3 Intellectual Property Rights means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral 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 for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
6.4 You acknowledge that, where we do not own any Pre-existing Materials because their Intellectual Property Rights are owned by a third party, your use of rights in Pre-Existing Materials is conditional on us obtaining a written license (or sub-license)
from the relevant licensor or licensors on such terms as will entitle us to license such rights to you.
6.5 All Intellectual Property Rights in Your Materials and any trademarks used by you are owned or licensed to you and no rights to Your Materials or such trademarks shall pass to us. You hereby grant us a non-exclusive license of such Intellectual Property Rights for the purposes of providing the Services in accordance with the terms of these conditions and any Contract.
6.6 You shall indemnify us against all damages, losses, and expenses we suffer or incur arising as a result of any action or claim that Your Materials or your trademarks infringe the Intellectual Property Rights or any other rights of a third party.
7. CONFIDENTIALITY AND NON-SOLICITATION
7.1 You shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, or initiatives which are of a confidential nature and have been disclosed to you by us, our employees, agents or sub-contractors and any other confidential information concerning our business or our products which you may obtain. You shall restrict disclosure of such confidential material to such of your employees, agents or sub-contractors as need to know the same for the purpose of discharging your obligations to us. You shall ensure that such employees, agents, or sub-contractors are subject to obligations of confidentiality corresponding to those which bind you.
7.2 You shall not, without our prior written consent, at any time until 6 months after the last date we supply any Services to you solicit or entice away from use or employ or attempt to employ any person who is or has been engaged as our employee or subcontractor in the provision of the Services.
7.3 Any consent given by us in accordance with condition 7.2 shall be subject to you paying us a sum equivalent to 20% of the then-current annual remuneration of our employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by you to that employee or sub-contractor.
7.4 This condition 7 shall survive termination of the Contract.
8. LIMITATION OF LIABILITY
8.1 This condition 8 sets our entire financial liability (including any liability for the acts or omissions of our employees, agents, and sub-contractors) to you in respect of:
(a) any breach of these conditions or any Contract.
(b) any use made by you of the Services or the Deliverables.
(c) any representation, statement, tortious act, or omission (including negligence) arising under or in connection with these conditions or any Contract.
8.2 In certain circumstances, subject to such terms and conditions as we specify in writing, we may benediction that the manufacturer in question has provided such warranty to us. Unless we h able to pass to you the benefit of any manufacturer’s warranty in respect of the provision of all or part of the Services under any Contract, but only to the extent and subject to the company providing you with written confirmation of such warranty as part of the Contract any guidance notes given on our website or in any advertising or promotional material is for guidance purposes only and shall not amount to any warranty in respect of the Services.
8.3 In requesting the Services from us, you acknowledge and agree that:
(a) the Services we provide are innovative in the signwriting industry and their purpose is to provide a mobile advertising medium by way of an overall design concept, rather than exact art reproductions.
(b) minor deviations and imperfections are sometimes unavoidable where the surface for application is indented or otherwise not smooth or flat.
(c) the durability and lifespan of any vehicle wrapping or other surface application provided as part of the Services will depend upon the level of care taken by you for the vehicle or other item, as with any other surface decoration or vehicle paintwork.
8.4 Save as provided in condition 8.2, all warranties, conditions, and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these conditions or any Contract.
8.5 Without prejudice to the generality of condition 8.4 we will not be liable to you for:
(a) any damage caused by the application or removal of any graphics or wrapping to or from any vehicle or other surface, unless caused by our negligence, and any such application or removal shall be entirely at your own risk and you are recommended to seek independent guidance in this respect, as suggested in condition 3.2(b).
(b) any deviations from Pantone or other spot colour references specified by you for any designs which form part of the Services, since such colour references are for guidance purposes and cannot always be matched exactly.
If precise colour matches are important to you, it is recommended that you ask for sample colours to sign off prior to commencement of the final Services.
(c) any application by you to any surface of any products sold by us on a supply basis only and any such application shall be entirely at your own risk; or (d) any valuables left in vehicles or other items delivered to us for the provision of the Services.
– Any lacquer/bodywork/paintwork defects are the customer's responsibility to cover, if a Smart Car Automotive member performs a “detailing service” or “polishing service” we can’t accept any responsibility
“De-wrapping or Unwrapping is done entirely on customers risk Smart Car Automotive takes no responsibility for bodywork before or after removal in any case
8.6 Nothing in these conditions limits or excludes our liability:
(a) for death or personal injury resulting from our negligence; or
(b) for any damage or liability incurred by you because of fraud or fraudulent misrepresentation by us.
8.7 Subject to conditions 8.2, 8.3, 8.4, 8.6, and 8.6:
(a) we shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, or otherwise for loss of profits; loss of business; depletion of goodwill and/or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss of or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in
connection with the performance or contemplated performance of these conditions or any Contract shall be limited to the price paid for the Services.
9. CANCELLATION OF A CONTRACT
9.1 Subject to conditions 9.2 and 9.3, if you are a consumer (someone not buying during a business), you may cancel a Contract for any reason at any time within seven working days, beginning on the day after the Contract between us is made in accordance with the provisions of condition 1.4. In this case, you will receive a full refund of any price already paid for the Services in accordance with our refund policy (set out in condition 9.4 below).
9.2 To cancel a Contract, you must inform us in writing.
9.3 You will not have any right to cancel a Contract for the supply of any Services:
(a) which have been customised or tailored to your specific requirements.
(b) where it has been agreed between us in the Contract that the Services will
commence within seven working days of the date on which the Contract is made: or
(c) where you are a business customer.
9.4 Where a right of cancellation applies, we will usually refund any money received from you using the same method originally used by you to pay for your purchase.
We will process the refund as soon as possible and, in any case, within 30 days of the day we received your cancellation.
9.5 Any right of cancellation not provided for in conditions 9.1 to 9.4 above shall be in our sole discretion and we reserve the right to charge you for any costs or losses (including for loss of profits) suffered or incurred by us as a result of your unauthorised cancellation of any Contract.
9.6 The provisions of this condition 9 do not affect your statutory rights if you are a consumer.
10. DATA PROTECTION
You acknowledge and agree that details of your name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on our behalf in connection with the Services.
11.1 Without prejudice to any other rights or remedies which we may have, we may terminate any Contract without liability to you immediately on giving notice to you if:
(a) an order is made or a resolution is passed for your winding up, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order; or (b) an order is made for the appointment of an administrator to manage your affairs, business and property, or documents are filed with a court of competent jurisdiction for the appointment of an administrator, or notice of intention to appoint an administrator is given by you or your directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or (c) a receiver is appointed of any of your assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager, or if any other person takes possession of or sells your assets; or (d) you make any arrangement or composition with your creditors, or make an application to a court of competent jurisdiction for the protection of your creditors in any way; or (e) you cease, or threaten to cease, to trade.
11.2 On termination of the Contract for any reason you shall immediately pay us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt.
11.3 The accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
12. FORCE MAJEURE
We shall have no liability to you under these conditions or any Contract if we are prevented from or delayed in performing our obligations under these conditions or any Contract by acts, events, omissions or accidents beyond our reasonable control, including strikes, lock-outs or other industrial disputes (whether involving our workforce or that of any other party), failure of a utility service or transport or communications network, act of God, war, riot, civil commotion, malicious damage,
compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant, equipment or machinery, fire, flood, storm, or default of suppliers or sub-contractors.
Subject to condition 4 no amendment to any Contract shall be valid unless it is in writing and signed by or on behalf of each of the parties.
14.1 A waiver of any right under these conditions or any Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
14.2 Unless specifically provided otherwise, rights arising under these conditions, or any Contract are cumulative and do not exclude rights provided by law.
15.1 If any provision (or part of a provision) of these conditions or any Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions will remain in force.
15.2 If any invalid, unenforceable, or illegal provision would be valid, enforceable, or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable, and legal.
16. STATUS OF PRE-CONTRACTUAL STATEMENTS
Each of the parties acknowledges and agrees that in entering any Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty, or understanding (whether in writing or not) of any person (whether a party to these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in these conditions or the Contract.
17.1 You shall not, without our prior written consent, assign, transfer, charge, sub-contract, or deal in any other manner with all or any of your rights or obligations under these conditions or any Contract.
17.2 We may at any time assign, transfer, charge, sub-contract, or deal in any other manner with all or any of our rights or obligations under these conditions or any Contract.
18. NO PARTNERSHIP OR AGENCY
Nothing in these conditions or any Contract is intended to or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20. RIGHTS OF THIRD PARTIES
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address or fax number, given in the Contract (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 20 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
22. GOVERNING LAW AND JURISDICTION
22.1 These conditions and any Contract and any dispute or claim arising out of or in connection with them or their subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
22.2 Each irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these conditions or any Contract or their subject matter.