Conditions for Sale
of Equipment and the Provision of Services
1. DEFINITIONS
"these Conditions" means these terms and conditions.
"Visionary
AV Solutions Ltd." to which these Conditions are attached.
"Commissioning"
means the delivery of the Equipment and the completion of the Services.
"the
"Purchaser" means the person or company identified overleaf.
"the
Equipment" means the equipment listed in the Schedule and includes where
the context so requires all or any of the components and parts of that equipment
and any computer programs incorporated in that equipment or delivered with it.
"the Schedule" means the Schedule to this Agreement.
"the
Services" means the services in the Schedule.
"the Programs"
means the computer programs referred to in the definition of the Equipment.
"this Agreement" means the Agreement to which these Conditions are attached,
together with the Schedule and these Conditions.
2. EFFECT
OF CONDITIONS
These Conditions prevail over any conditions contained
in the Purchaser's order and over any other conditions that the Purchaser seeks
to impose. Together with the Schedule and the Agreement signed by the parties,
these Conditions and any terms expressly incorporated in them form the entire
agreement between the parties relating to their subject matter.
3.
PRICE
A. The price for the Equipment and the Services is as stated
in the Schedule. It includes delivery of the Equipment and the provision of the
Services, and is subject to the addition of VAT at the then prevailing rate. If
any of the Equipment or Services is to be exported outside the United Kingdom
the Purchaser shall pay the costs incurred by Visionary AV Solutions Ltd. or on
its behalf of obtaining all necessary export authorisations and all import duties,
sales taxes, charges and assessments.
B. Visionary AV Solutions Ltd. reserves
the right to increase the price in the event of any increase in the costs incurred
by Visionary AV Solutions Ltd. or the work done by Visionary AV Solutions Ltd.
resulting from:
(i) any delay caused by the Purchaser, its agents or other
suppliers;
(ii) any change to any of the Equipment or the Services or specifications
or design of them which are requested by the Purchaser;
(iii) incorrect or
incomplete information furnished by the Purchaser;
(iv) reasons beyond Visionary
AV Solutions Ltd.'s control;
(v) unless the price in the Schedule is expressed
to be fixed, any increase in the British Electrical and Allied Manufacturers Association
Index between the date of this Agreement and the date of delivery, in which case
Visionary AV Solutions Ltd. may increase the price by a percentage equal to the
percentage increase in that index.
4. PAYMENT
A. Unless otherwise specified in the Schedule, fifty percent of the price
shall be paid when the Purchaser places its order. All equipment to be paid for
by the time of delivery to site. The remaining balance shall be paid within 15
days after Commissioning.
B. If payment is not made in accordance with Clause
4(A) above the Purchaser shall pay on demand, in addition to any monies due hereunder,
interest on the overdue amount at 3% per annum above the base rate of Lloyds TSB
Bank from time to time in force in England calculated on a monthly basis from
the due date to the date of actual payment (both dates inclusive), as well after
as before judgement.
C. Payment by credit card will attract a surcharge of
2.5%, payment by debit card attracts no surcharge.
5.
DELIVERY AND INSTALLATION
A. Any date given to the Purchaser
for delivery or Commissioning is an estimate only and Visionary AV Solutions Ltd.
will not be liable if it fails to meet any such date.
B. The Purchaser shall
make available to Visionary AV Solutions Ltd. such access to the Purchaser's premises
and facilities as are necessary for Visionary AV Solutions Ltd.'s performance
of this Agreement and the Purchaser will ensure that those premises and facilities
are adequately prepared for and ready for the commencement of the Services.
C. Unless otherwise agreed in writing, all Services will be performed during Visionary
AV Solutions Ltd.'s normal working hours, and Visionary AV Solutions Ltd. shall
not be required to work outside those hours.
D. The Purchaser will be deemed
to have accepted the Equipment and the Services on Commissioning.
E. Cables
first fixed by other are required to be clearly marked and identified in accordance
with the wiring diagrams. Live Smarter reserves the rights to increase the price
if this clause is not adhered to.
F. If the cables are first fixed by others
the resistance and continuity tests are the responsibility of others.
G. Should
any cables be missing since the date of the first fix survey, this will be the
responsibility of others, this also applies to any cables or cores that maybe
found to be damaged
H. In the unlikely even any interference is found to be
disturbing or reducing the communications path would be the responsibility of
others.
6. FORCE MAJEURE
If Visionary
AV Solutions Ltd. is prevented (directly or indirectly) from performing or completing
any of its obligations under the Agreement by reason of Act of God, war, strike,
lockout, trade dispute, fire, breakdown, interruption in transport, failure of
or interruption in telecommunications systems, government action, delay in delivery
to Visionary AV Solutions Ltd. of any Equipment and Services or parts thereof
or any cause whatsoever (whether or not of the like nature to those already mentioned)
outside its control, Visionary AV Solutions Ltd. shall not be liable and may extend
the time for its performance of its obligations hereunder by a period equivalent
to that during which its performance has been so delayed or prevented.
7.
DELIVERY BY INSTALMENTS
Where delivery of Equipment and provision
of the Services is made in instalments these Conditions shall (with any necessary
alterations) apply to each instalment of such Equipment. In particular, payment
of the remaining 50% of the price shall be made within 15 days after the Commissioning
of each instalment.
8. PASSING OF PROPERTY AND RISK
A. Except for any loss or damage caused by or attributable to Visionary AV Solutions
Ltd. prior to Commissioning, risk in the Equipment and in each part of them shall
pass to the Purchaser at the time of delivery to the Purchaser.
B. Until the
Purchaser has paid Visionary AV Solutions Ltd. in full for the Equipment:-
(i) all rights, title and property in equity and law in the Equipment shall remain
vested in Visionary AV Solutions Ltd. (or its suppliers) and shall not pass to
the Purchaser;
(ii) the Purchaser shall not sell, assign, mortgage, pledge,
lend or otherwise transfer or dispose of any interest in or create any charge
or lien over or otherwise encumber the Equipment or do any act or thing or permit
any act or thing to be done which may in any way prejudice Visionary AV Solutions
Ltd.'s rights to and title to the Equipment;
(iii) the Purchaser shall hold
the Equipment in such a way as to indicate clearly that it is the property of
Visionary AV Solutions Ltd.;
(iv) the Purchaser shall keep the Equipment in
its own physical possession and control at the address to which the Equipment
is delivered;
(v) the Purchaser shall keep the Equipment in good and substantial
repair and operating condition;
(vi) the Purchaser shall keep the Equipment
fully insured; and
(vii) if the Purchaser sells any of the Equipment,
the Purchaser shall receive the proceeds of sale as agent for Visionary AV Solutions
Ltd., shall keep those proceeds separate from the Purchaser's funds, and account
for them to Visionary AV Solutions Ltd..
C. Visionary AV Solutions Ltd. may
maintain an action for the price notwithstanding that property in the Equipment
may not have passed to the Purchaser.
D. The Purchaser hereby acknowledges
that until the Purchaser acquires title to the Equipment, the relationship between
Visionary AV Solutions Ltd. and the Purchaser in relation to the Equipment shall
be a fiduciary one and the Purchaser shall hold the equipment as bailee for Visionary
AV Solutions Ltd. and shall deliver them up to Visionary AV Solutions Ltd. immediately
on Visionary AV Solutions Ltd.'s request. Any such request shall terminate this
Agreement
E. Each of the paragraphs and sub-paragraphs of the Clause 8 shall
be construed as a severable contract term not affected by any invalidity or unenforceability
of any other term of this Agreement and shall survive the termination of this
Agreement.
F. Title to the Programs shall not pass to the Purchaser who shall
have a limited licence to use them
9. EXCLUSIONS, LIMITATIONS
OF LIABILITY AND WARRANTY
A. The Purchaser hereby acknowledges
that the Equipment and the Programs are such that breakdowns, errors, interruptions
in use or malfunctions may occur and that Visionary AV Solutions Ltd. gives no
warranty of uninterrupted or fault or error free use.
B. At the request of
the Purchaser made within 30 days after Commissioning, Visionary AV Solutions
Ltd. will enter into an agreement (hereinafter referred to as "the Maintenance
Agreement") with the Purchaser for the provision by Visionary AV Solutions
Ltd. of a maintenance, repair and parts replacement service on the terms and conditions
for maintenance attached to this Agreement.
If the Purchaser and Visionary
AV Solutions Ltd. shall not enter into the Maintenance Agreement then but not
otherwise Visionary AV Solutions Ltd. will provide the following limited service:-
(i) if before the expiration of one year after Commissioning ("the Warranty
Period")and if the Purchaser has complied with its obligations under this
Agreement any stand-alone part of the Equipment is defective and is returned to
Visionary AV Solutions Ltd. at the cost of the Purchaser, and if upon inspection
Visionary AV Solutions Ltd. agrees that the part is defective, Visionary AV Solutions
Ltd. will repair or replace the same (as Visionary AV Solutions Ltd. thinks fit)
and will return the same to the Purchaser. If during the Warranty Period the Purchaser
notifies Visionary AV Solutions Ltd. that any part of the Equipment (other than
stand-alone Equipment) is defective, Visionary AV Solutions Ltd. will repair or
replace that part free of all charges other than standard labour charges then
in effect. Touch screens shall be excluded from this "warranty period"
and be covered for a total of 60 days from the date of commissioning.
(ii)
Visionary AV Solutions Ltd. shall not be required to provide the limited service
referred to in sub-paragraph (i) above if any maintenance, repair or replacement
is necessary because of:
a) accident, neglect, misuse;
b) Failure of electrical
power;
c) Failure to maintain the recommended environmental conditions;
d) Use which is other than the ordinary and proper use of the Equipment;
e)
Anything connected to the Equipment being unsuitable for such connection or interfering
with the proper functioning of the Equipment;
(iii) Visionary AV Solutions
Ltd. shall not be obliged to carry out any repair or replacement for anyone other
than the Purchaser, or in respect of any magnetic disk or other consumable item.
C. Subject to Conditions D, K and L below, Visionary AV Solutions Ltd. will in
no circumstances have any liability for loss of profit, loss of business, loss
of revenue, loss of savings, loss or corruption of data, loss of goodwill or for
any liability of the Purchaser to any other person (save only as set out in Condition
11), or for any other indirect or consequential loss howsoever arising.
D.
Nothing in this Agreement limits or excludes Visionary AV Solutions Ltd.'s liability
for death or personal injury caused by its negligence of for and fraudulent misrepresentation
or other fraudulent act committed by it.
E. Except where the negligence or
default of Visionary AV Solutions Ltd. results in death or personal injury and
except for fraud, the aggregate liability of Visionary AV Solutions Ltd. under
or in connection with this Agreement, the Equipment and the Services or any part
of them (no matter how many claims are made or whatever the basis of those claims)
shall be limited in total to the price paid for the Equipment and Services.
F. The Purchaser agrees that it is in a better position to foresee and evaluate
an indirect or consequential loss he may suffer in connection with the Equipment
and Services and that the price therefore has been calculated on the basis that
Visionary AV Solutions Ltd. will exclude and limit liability as set out in this
Condition 9. The Purchaser agrees that it is better placed than is Visionary AV
Solutions Ltd. to insure against such loss.
G. Insofar as it limits or excludes
liability, this Condition 9 shall override any other provision in these Conditions,
and each of the paragraphs of this Condition 9 shall be a severable term not affected
by any invalidity or unenforceability of any other paragraph or term, and shall
survive the termination of this Agreement and the performance of Visionary AV
Solutions Ltd.'s obligations under it..
H. Visionary AV Solutions Ltd. will
not, unless specified in writing, be responsible for ensuring equipment and services
that form or modify a system are in accordance with the EMC Directive 89/336 EEC
and amendments and statutes pertaining to it.
I Visionary AV Solutions Ltd.
will not, unless specified in writing, be responsible for ensuring equipment and
services that form or modify a system will not create excessive traffic conditions.
Visionary AV Solutions Ltd. will therefore not be responsible for any re-imbursement
of carrier or telecommunications charges even where these formed part of the Services.
J. All conditions, warranties and other terms (express or implied, statutory
or otherwise) are excluded from this Agreement to the extent permitted by law.
K. Except where this Agreement is an international supply contract as specified
in section 26 of the Unfair Contract Terms Act 1977, nothing in these Conditions
shall exclude or restrict:
(i) any liability of Visionary AV Solutions Ltd.
for breach of its implied undertakings as to title;
(ii) where the Purchaser
deals as consumer within the meaning of the Unfair Contract Terms Act 1977, Visionary
AV Solutions Ltd.'s liability for breach of its implied undertakings as to conformity
of the goods with description or sample, or as
to their quality or fitness
for purpose.
L. Nothing in these Conditions affects the statutory rights
of the Purchaser as defined in the Consumer Transactions (Restrictions on Statements)
Order 1973 (as amended).
10. TERMINATION
A. Without prejudice to any other rights of Visionary AV Solutions Ltd., Visionary
AV Solutions Ltd. shall have the right to terminate this Agreement (including
the licence in Condition) forthwith by notice in writing to the Purchaser in the
following circumstances.
(i) if the Purchaser breaches any of any of its material
obligations under this Agreement and either that breach is incapable of remedy
or the Purchaser does not remedy that breach within thirty days after receipt
of notice requiring it to remedy the same;
(ii) if any distress or execution
is levied on the property of the Purchaser, or if the Purchaser makes any arrangement
or composition with its creditors generally or commits an act of bankruptcy or
if any receiving order is presented or made against it, or if the Purchaser (being
a Company) has any petition presented or resolution passed for its winding up
(otherwise than for the purposes of and followed by a solvent amalgamation or
reconstruction) or dissolution, or an encumbrancer takes possession, or a receiver
or administrator is appointed over the whole or any material part of the assets
of the Purchaser.
B. In the event of termination for any reason, Visionary
AV Solutions Ltd. shall be entitled to retain (to the extent it shall prove necessary)
and set off against any liability of the Purchaser to Visionary AV Solutions Ltd.
any monies already paid by the Purchaser.
C. If Visionary AV Solutions Ltd.
is prevented or delayed in the performance of its obligations under this Agreement
by any of the events specified in Condition 6 for a continuous period of 6 months
or more either Visionary AV Solutions Ltd. or the Purchaser may terminate this
Agreement by giving notice in writing to the other. If this Agreement is frustrated
or so terminated Visionary AV Solutions Ltd. shall be entitled to remuneration
or re-imbursement on a quantum meruit basis.
D. If this Agreement is terminated
for any reason) and any monies due and payable have not been paid to Visionary
AV Solutions Ltd. in full, the Purchaser shall promptly return the Equipment to
Visionary AV Solutions Ltd. and if the Purchaser does not do so, Visionary AV
Solutions Ltd. shall have the right, without prejudice to any other rights or
remedies, to send its employees or agents onto the Purchaser's premises at any
time to take possession of the Equipment. Upon termination of the Contract for
whatever cause the Programs and all copies of them (including flow charts, logic
diagrams, source codes, user manuals and modified programs) shall be returned
by the Purchaser to Visionary AV Solutions Ltd. within 15 days after termination.
E. Condition 10D and Condition 9 shall survive the termination of this Agreement
and continue indefinitely.
11. PROGRAMS
In consideration
of the payment by the Purchaser to Visionary AV Solutions Ltd. of the full purchase
price of the Equipment and the performance of the other obligations of the Purchaser,
Visionary AV Solutions Ltd. hereby grants to the Purchaser a non-exclusive non-transferable
licence to use the Programs and any user documentation incorporated in or delivered
with the Equipment upon the following terms:
A. The Programs will be supplied
on such media as Visionary AV Solutions Ltd. thinks fit;
B. The Purchaser
shall use the Programs only with the Equipment (or other Equipment from time to
time supplied by Visionary AV Solutions Ltd.) and only for the Purchaser's internal
business purposes and shall not market or commercialise or sub-license or share
the use of the Programs in any way;
C. The Purchaser may not make any copies
of the Programs except for back up purposes;
D. The Purchaser will not remove
any copyright notice or other notice supplied by Visionary AV Solutions Ltd. with
the Programs;
E. The Purchaser shall bring to the attention of Visionary AV
Solutions Ltd. any infringement of suspected infringement by any third party of
any of the property rights referred to in Condition 13 and shall at the request
and expense of Visionary AV Solutions Ltd. take or join Visionary AV Solutions
Ltd. in taking all such action as Visionary AV Solutions Ltd. may at its sole
discretion decide and require for the purpose of protecting all such rights;
F. The Purchaser will not alter, modify or update the Programs nor merge them
with other computer programs without the prior written consent of Visionary AV
Solutions Ltd.;
G. The Purchaser will ensure that the Programs as used only
in accordance with this Agreement and the Purchaser will permit Visionary AV Solutions
Ltd. to inspect the Equipment and the Programs and to satisfy itself at all reasonable
times that the Programs are so used;
H. The Purchaser will not (save so far
as necessary in the case of any employee of the Purchaser who uses the Equipment
and then only in confidence);
(i) Disclose any details of the method of operation
of the Programs
to any third party; or
(ii) Give or lend to any third
party any of the Programs in whatever form (or any copy of the user manual or
other documentation relating thereto); or
(iii) Suffer or permit any unauthorised
person to copy, take or remove from the premises on which the Programs are used
by the Purchaser any of the Programs or the user manual; and the Purchaser shall
ensure that those persons who with the Purchaser's consent have access to the
Programs (and user manual) are aware of and comply with the provisions of this
Condition.
I. The Purchaser may not sub-license or assign or otherwise transfer
this licence; and
J. Upon the Purchaser disposing of the Equipment to any
third party Visionary AV Solutions Ltd. may (but will not be obliged to) at the
request of the Purchaser (and if the Purchaser shall have complied with all its
obligations hereunder) grant to that third party a licence to use the Programs
upon the same terms as are contained in this Agreement or as near thereto as the
circumstances shall then permit.
12. INTELLECTUAL PROPERTY
RIGHT INFRINGEMENT
A. Visionary AV Solutions Ltd. will indemnify
the Purchaser in respect of any costs and damages awarded against the Purchaser
in any proceedings brought against the Purchaser based on an allegation that the
Purchaser's use of the Equipment in the United Kingdom infringes any patent or
copyright provided that;
(i) this indemnity shall not apply to any infringement
which is due to Visionary AV Solutions Ltd. having followed designs or instructions
furnished by the Purchaser or to the use of the Equipment in any manner or for
a purpose not specified or agreed to in writing by Visionary AV Solutions Ltd.,
or to any infringement which is due to the use of the Equipment in association
or combination with any other equipment or software not supplied by Visionary
AV Solutions Ltd.;
(ii) in the event of such proceedings Visionary AV Solutions
Ltd. shall have the right at its discretion either to procure for the Purchaser
at Visionary AV Solutions Ltd.'s expense the right to continue the use of the
Equipment to which such proceedings relate or to modify or replace such Equipment
or, if in the opinion of Visionary AV Solutions Ltd. no other reasonable alternative
is available, to terminate this Agreement and re-purchase the Equipment at the
purchase price less depreciation to be established by Visionary AV Solutions Ltd.
taking into account the expected useful life of the Equipment, the duration of
the Purchaser's use thereof and then current accounting practice;
(iii) Visionary
AV Solutions Ltd. is promptly notified in writing by the Purchaser of any claim
being made or action threatened or brought against the Purchaser and Visionary
AV Solutions Ltd. is given the sole right to defend and settle the proceedings
and sole control of any negotiations for settlement or compromise; and
(iv)
the Purchaser gives at its own expense all reasonable assistance and does not
by any act or omission do anything which may directly or indirectly prejudice
Visionary AV Solutions Ltd. in this connection.
B. Except, as aforesaid Visionary
AV Solutions Ltd. shall not be under any liability to the Purchaser where the
Equipment infringes a patent or other intellectual property right.
13.
PROPERTY RIGHTS
All copyright, patent, trade secrets, know-how,
rights of confidence and other property rights in the Programs and the Equipment,
and all parts thereof and anything supplied in connection therewith or to facilitate
the use thereof, are the property of Visionary AV Solutions Ltd. (or its licensors
or suppliers) and no rights in or under such property pass to the Purchaser save
for those expressly granted under these Conditions.
14.
NOTICES
Any notice to be given under these Conditions shall
be given in writing and shall be deemed to have been duly given if sent or delivered
to the party concerned at its address at the date of this Agreement or such other
address as that party may from time to time notify in writing to the other in
accordance with this Condition and shall be deemed to have been served if sent
by post to and from an address within the United Kingdom three working days after
posting.
15. ASSIGNMENT
The Purchaser
may not assign or transfer or purport to assign or transfer this Agreement or
any obligation or any benefit under it to any other person without the prior written
consent of Visionary AV Solutions Ltd..
16. DISPUTES
This Agreement is governed by and is to be construed in accordance with the laws
of England.
Subject to the remainder of this Condition 16, the English Courts
will have exclusive jurisdiction to deal with any dispute that arises out of or
in connection with this Agreement.
In the event of any dispute or difference
arising in connection with this Agreement, the parties' respective senior representatives
will, within 10 days after receipt of a written request from either party to the
other, meet in a good faith effort to resolve the dispute without recourse to
legal proceedings.
If the dispute or difference is not resolved as a result
of that meeting, either party may (at that meeting or within 14 days after its
conclusion) propose to the other in writing that structured negotiations be entered
into with the assistance of a neutral advisor or mediator ("Neutral Advisor").
If the parties are unable to agree on a Neutral Advisor or if the Neutral Advisor
agreed upon is unable or unwilling to act, either party shall, within 14 days
after the date of the proposal to appoint a Neutral Advisor or within 14 days
after receipt of notice to either party that he or she is unable or unwilling
to act, apply to the Centre for Dispute Resolution ("CEDR") to appoint
a Neutral Advisor.
The parties shall within 14 days after the appointment
of the Neutral Advisor meet with him or her in order to agree a programme for
the exchange of any relevant information and the structure to be adopted for the
negotiations to be held in London, England. If considered appropriate, either
of the parties may, at any stage, seek assistance from CEDR to provide guidance
on a suitable procedure.
Unless concluded with a written legally binding
agreement, all negotiations connected with the dispute shall be conducted in confidence
and without prejudice to our respective rights in any future proceedings.
If the parties accept the Neutral Advisor's recommendations, or otherwise reach
agreement on the resolution of the dispute, that agreement shall be recorded in
writing and, once it has been signed by the parties' respective duly authorised
representatives, will be binding on the parties.
That agreement will be implemented
in full within the period of time agreed by the Neutral Advisor, failing which
it will be rendered null and void (and may not be referred to any subsequent legal
proceedings) unless legal proceedings have been initiated to enforce it by either
you or us within a further 28 days.
Failing agreement, either party may invite
the Neutral Advisor to provide a non-binding but informative opinion in writing.
That opinion will be provided on a without prejudice basis and will not be used
in evidence in any proceedings begun in relation to this Agreement without the
prior written consent of both parties.
If the parties fail to reach agreement
in the structured negotiations within 60 days after the Neutral Advisor being
appointed, any dispute or difference between them may be referred to the Courts
unless, within that period, the parties agree to refer the matter to arbitration
before an arbitrator whose method of appointment is agreed between them.
17.
GENERAL
A. No alteration or modification of these Conditions
or any other part of this Agreement shall have effect unless made in writing and
signed by or on behalf of the Purchaser and by a Director of Visionary AV Solutions
Ltd..
B. Any forbearance or delay on the part of either party in enforcing
any provision of these Conditions or any of its rights under this Agreement shall
not be construed as a waiver of such provision or of any right thereafter to enforce
the same.
C. If any of these Conditions is, for any reason, held in a final
decision to be unenforceable, illegal or otherwise invalid in any way, that unenforceability,
illegality or invalidity will not affect any other provisions, which will continue
in full force and effect. These Conditions are then to be construed as if that
unenforceable, illegal or invalid provision had never been contained in these
Conditions. The parties shall use reasonable endeavours to agree valid and enforceable
terms to replace those unenforceable, illegal or invalid provisions in order to
meet, so far as is possible, their original intentions.
