SCREEN SUBTITLING SYSTEMS LIMITED
STANDARD TERMS AND CONDITIONS OF SALE
1. DEFINITIONS AND INTERPRETATIONS
1.1. In these Conditions:
“Screen” means Screen Subtitling Systems Ltd and subsidiary, division or trading units of Screen Subtitling Systems Ltd;
“Buyer” means the person firm or company so described in the Order;
“Conditions” means the standard terms and conditions of purchase set out in this document and (unless the context otherwise requires) includes any varied or special terms and conditions agreed in writing between Screen and the Buyer;
“Contract” means the contract of the sale and supply of the Goods and/or the supply and performance of the Services subject to these Conditions;
“Goods” means the Goods (including any instalment of the Goods or any part of them) described in the Order;
“Order” means any written quotation of Screen which is accepted by the Buyer, or any written order of the Buyer which is accepted by Screen for the supply of Goods or performance of Services;
“Price” means the Price of the Goods and/or the charge for the Services;
“Specification” includes any plans, drawings, data, description or process or other technical requirements or information including Screen’s web site relating to the Goods or Services agreed between the parties.
2. GENERAL BASIS OF SALE
2.1. These Conditions apply to all Contracts for sale of Goods by Screen.
2.2. The placing of an Order by the Buyer for the Goods shall constitute acceptance of these Conditions notwithstanding any other terms and conditions subject to which any quotation by Screen is accepted or purported to be accepted or any such order is made or purported to be made by the Buyer.
2.3. No Order submitted by the Buyer shall be deemed to be accepted by Screen unless and until confirmed in writing by Screen’s authorised representative.
2.4. No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and Screen.
2.5. The Buyer acknowledges that all advice, instructions or recommendations of Screen rely and are dependent upon all the information and technical background given to Screen by the Buyer.
2.6. Where the Buyer does not specify a particular process, workflow or data format Screen will not be liable for any defect or failure of the equipment or entitle the Buyer to withhold payment.
3. ORDERS AND SPECIFICATIONS
3.1. The Buyer shall be responsible to Screen for ensuring the accuracy of the terms of any Order (including any applicable Specification) submitted by the Buyer, and for giving Screen any necessary information relating to the Goods pursuant to clause 2.5 or otherwise within a sufficient time to enable Screen to perform the Contract in accordance with its terms.
3.2. The quantity, quality, description, functionality, facilities, functions, capacity and description of the Goods shall, subject as provided in these Conditions, be as specified in the Order and any applicable Specification as set out either in Screen’s quotation or in the web site of Screen or any documents referred to in the Order. In the event of conflict, preference will be given to equipment data sheets and the web site.
3.3. All drawings, illustrations or any product literature or other publications of Screen must be regarded as approximations only.
3.4. Any Specification supplied by Screen to the Buyer in connection with the Contract, together with all intellectual property rights in the Specification, shall be the exclusive property of Screen. The Buyer shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Buyer, or as required for the purpose of the Contract. Upon request of Screen the Buyer will return to Screen any documents (or other media) in or upon which any part of the Specification has been supplied by Screen and shall not retain copies thereof.
3.5. If the Goods are to be manufactured or any custom development is required by Screen in accordance with a Specification submitted by the Buyer, the Buyer shall indemnify Screen against all loss, damages, costs and expenses awarded against or incurred by Screen in connection with any claim for infringement of any intellectual property rights of any other person which results from Screen’s use of the Specification so submitted by the Buyer.
3.6. Screen reserves the right to make any changes in the Specification of the Goods which are required to conform with any statutory or other regulatory requirements applicable to the Goods.
3.7. Any Purchase Order which has been accepted by Screen will be subject to a cancellation charge as follows:
3.7.1 cancellation within 14 days of Order acceptance 50% of all software and hardware items.
3.7.2 cancellation after 14 days from Order acceptance 100% of all software and hardware items.
4. PRICE OF THE GOODS
4.1. The Price shall be Screen’s quoted price. The Price quoted is valid for 30 days only, after which time they may be altered by Screen without giving notice to the Buyer.
4.2. Screen reserves the right, by giving notice to the Buyer at any time before delivery, to increase the Price to reflect any increase in the cost to Screen which is due to any factor beyond the control of Screen, any change in delivery dates, quantities or the Specifications which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give Screen adequate or accurate information or instructions.
4.3. Except as otherwise stated under the terms of the Order and unless otherwise agreed in writing between the Buyer and Screen, the Price is given by Screen on an ex works basis, and where Screen agrees to deliver the Goods otherwise than at Screen’s premises, the Buyer shall be liable to pay Screen’s charges for transport, packaging and insurance.
4.4. The Price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to Screen.
5. TERMS OF PAYMENT
5.1. Subject to any special terms agreed in writing between the Buyer and Screen, Screen shall be entitled to invoice the Buyer for the Price on or at any time after delivery of the Goods or the Buyer wrongfully fails to take delivery of the Goods, in which event Screen shall be entitled to invoice the Buyer for the Price at any time after Screen has notified the Buyer that the Goods are ready for collection or (as the case may be) Screen has tendered delivery of the Goods.
5.2. The Buyer shall pay the Price within the terms set out below from the date of Screen’s invoice unless otherwise notified by Screen to the Buyer in writing, and Screen 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 Buyer. The time of payment of the Price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.2.1 For non-account customers:
100% payment in advance of dispatch.
5.2.2 For account customers for orders of less than £25,000:
30 days from date of invoice issued on dispatch of goods.
5.2.3 For account customers for orders of £25,000 or more:
50% payment in advance of dispatch.
50% 30 days from date of invoice issued on dispatch of goods.
5.2.4 Other terms as may be agreed in writing with Screen for specific Orders.
5.3. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Screen, Screen shall be entitled to:
5.3.1. cancel the Contract or suspend any further deliveries to the Buyer;
5.3.2. charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above LIBOR 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) before and after judgement.
5.4 All bank charges, exchange costs, financial administration fees and other costs incurred as a result of the payment process shall be borne by the Customer.
5.5 All payments will be made in the quotation currency (GBP, USD or Euros) directly via electronic transfer to the specified Screen account. Cheques and other payment methods must be agreed in writing in advance. Under no circumstances will payment be accepted by Letter of Credit (LC).
6.1. Delivery of the Goods shall be made to a place agreed by Screen, by Screen delivering the Goods to that place.
6.2. In the case of sales made (and agreed in advance by Screen) FCA, FAS, DDU or FOB. UK mainland unless otherwise agreed the Buyer shall upon request by Screen nominate a carrier or vessel willing to receive the Goods within 30 days from the date of Screen’s request.
6.3. Any dates or timescales quoted for delivery of the Goods are approximate only and Screen shall not be liable for any early or late delivery of the Goods however caused.
6.4. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Screen to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.5. If the Buyer fails to take delivery of the Goods or fails to give Screen adequate delivery instructions at the time stated for delivery (otherwise than by reason of any Force Majeure or by reason of Screen’s fault) then, without prejudice to any other right or remedy available to Screen, Screen may:
6.5.1. store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.5.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the Price or charge the Buyer for any shortfall below the Price under the Contract.
6.5.3 for any goods that were manufactured or developed specifically for the Customer; charge the customer the full price.
6.6. Any charges quoted for delivery of the Goods including transport, packaging and insurance are approximate only and Screen shall not be liable for any changes to the charges quoted however caused.
7. RISK AND PROPERTY
7.1. Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1. in the case of Goods to be delivered at Screen’s premises, at the time when Screen notifies the Buyer that the Goods are available for collection; or
7.1.2. in the case of Goods to be delivered otherwise than at Screen’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when Screen has tendered delivery of the Goods.
7.2. The property in the Goods shall not pass to the Buyer until Screen has received cleared funds payment in full of the Price and all other goods agreed to be sold by Screen to the Buyer for which payment is then due.
7.3. Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as Screen’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Screen’s 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 Buyer (and provided the Goods are still in existence and have not been resold), Screen shall be entitled at any time to require the Buyer to deliver up the Goods to Screen and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
8. BUYERS OBLIGATIONS
The Buyer shall be responsible at its own expense for:
8.1. the availability and supply of adequate supplies of electricity, cooling, lighting and other necessary utilities;
8.2. the operation of its own systems, plant and machinery.
8.3. the availability and supply of adequate temperature and humidity control at the premises where the Goods are to be used;
8.4. inform Screen within five days in writing of any material changes in the site design, materials of construction, operating conditions and uses or requirement of, or in respect to, the system(s) which are used together with or to which the Goods are applied;
8.6. indemnifying Screen (and its employees and/or agents) in respect of any claims which may be made against Screen (or its employees and/or agents) as a result of the use of the Goods.
9.1. Subject to the conditions set out in clauses 8, 9 and 10 Screen warrants that the Goods will correspond with the Specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from the date of their initial use or 12 months from delivery, whichever is the first to expire or such other period specified in the Order or subsequently agreed between the parties in writing.
9.2. The above warranty is given by Screen subject to the following conditions:
9.2.1. Screen shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
9.2.2. Screen shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow Screen’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without Screen’s approval;
9.2.3. Screen shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total Price has not been paid by the due date for payment;
9.2.4. the above warranty does not extend to parts, materials or equipment not manufactured by Screen, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Screen.
9.3. Screen will not be liable for any loss whether direct or indirect or consequential or loss of profit or any damage as a result of:
9.3.1. any inaccurate or insufficient information or technical background given to Screen;
9.3.2. any failure to comply strictly with the instructions, advice or recommendations given to the Buyer by Screen;
9.3.3. any use or application of the Goods for any purpose other than those detailed in the Specification or advised by Screen; or
9.3.4. any breach of the obligations set out in clause 8;
9.3.5. any failure to comply with any applicable legislation or any guidelines issued by the Health and Safety Executive or other appropriate regulatory authority current at the time of use of the Goods by the Buyer or any of its employees, agents or sub-contractors.
9.4. Any parameters given in respect of the performance of the Goods are based on the design parameters set out in the Specification and Screen will not be liable for any failure of the Goods to achieve these parameters unless the operating conditions for the Goods are the same as set out in the Specification.
9.5. 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 to the fullest extent permitted by law.
9.6. 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 Buyer are not affected by these Conditions.
9.7. Any claim by the Buyer which is based on any defect in the quantity, quality or condition of the Goods or their failure to correspond with the Specification shall be notified to Screen within 7 days from the date of delivery or
(where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify Screen accordingly, the Buyer shall not be entitled to reject the Goods and Screen shall have no liability for such defect or failure.
9.8. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet the Specification is notified to Screen in accordance with these Conditions, and provided the Goods are returned to Screen’s premises carriage paid Screen will at its option either replace the Goods (or the part in question) free of charge or refund to the Buyer the Price of the Goods (or a proportionate part of the price), but Screen shall have no further liability to the Buyer.
9.9. Except in respect of death or personal injury caused by Screen’s negligence, Screen shall not be liable to the Buyer 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 Screen, 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 Buyer and the entire liability of Screen under or in connection with the Contract shall not exceed the Price, except as expressly provided in these Conditions.
10. INTELLECTUAL PROPERTY INDEMNITY
10.1. If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes any intellectual property rights of any other person, then unless the claim arises from the use of any drawing, design or specification supplied by the Buyer, Screen shall reimburse the Buyer against all reasonable loss and damages awarded against or incurred by the Buyer in connection with the claim, provided that Screen is given full control of any proceedings or negotiations in connection with any such claim and the Buyer shall give all assistance to Screen as it may require and take such steps as Screen may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which Screen is liable to indemnify the Buyer under this clause.
11. BUYERS INDEMNITY
11.1. The Buyer shall indemnity Screen and keep it indemnified for the duration of the Contract against all injury
(including death) to any persons and any loss and/or damage as a result of any act, default or negligence by the Buyer and its employees or agents (other than Screen or its sub-contractors) and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto.
12. INSOLVENCY OF BUYER
12.1. If the Buyer makes any voluntary arrangement with its creditors or becomes bankrupt or becomes subject to an administration order or goes into liquidation or Screen reasonably apprehends that any of the events mentioned above is about to occur then Screen shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
13.1. Screen shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of Screen’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond Screen’s reasonable control.
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 party as its registered office or principle 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 Screen of any breach of the Contract by Screen 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 thereby.
13.5. The Contract and its performance shall be governed by the laws of England and Wales, and Screen agrees to submit to the non-exclusive jurisdiction of the English court.