Conditions for Sale of Equipment and
the Provision of Services
1. DEFINITIONS
"these Conditions" means these terms and
conditions.
"Plasma -Plasma." 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 Plasma -Plasma. or on its behalf of obtaining all necessary export
authorisations and all import duties, sales taxes,
charges and assessments.
B. Plasma -Plasma. reserves the right
to increase the price in the event of any increase
in the costs incurred by Plasma -Plasma.
or the work done by Plasma -Plasma. 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 Plasma -Plasma.'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 Plasma -Plasma. 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 Plasma -Plasma. will not be liable if it fails to meet
any such date.
B. The Purchaser shall make available to Plasma -Plasma. such access to the Purchaser's premises
and facilities as are necessary for Plasma -Plasma.'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 Plasma -Plasma.'s
normal working hours, and Plasma -Plasma.
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. Visionary AV Solutions 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 Plasma -Plasma. 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 Plasma -Plasma. 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,
Plasma -Plasma. 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 Plasma -Plasma. 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 Plasma -Plasma. in full for the Equipment:-
(i) all rights, title and property in equity and law
in the Equipment shall remain vested in Plasma -Plasma. (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
Plasma -Plasma.'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 Plasma -Plasma.;
(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 Plasma -Plasma., shall keep
those proceeds separate from the Purchaser's funds,
and account for them to Plasma -Plasma..
C. Plasma -Plasma. 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 Plasma -Plasma. and the Purchaser
in relation to the Equipment shall be a fiduciary
one and the Purchaser shall hold the equipment as
bailee for Plasma -Plasma. and shall deliver
them up to Plasma -Plasma. immediately
on Plasma -Plasma.'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 Plasma -Plasma. gives no warranty
of uninterrupted or fault or error free use.
B. At the request of the Purchaser made within 30
days after Commissioning, Plasma -Plasma.
will enter into an agreement (hereinafter referred
to as "the Maintenance Agreement") with
the Purchaser for the provision by Plasma -Plasma. of a maintenance, repair and parts replacement
service on the terms and conditions for maintenance
attached to this Agreement.
If the Purchaser and Plasma -Plasma. shall
not enter into the Maintenance Agreement then but
not otherwise Plasma -Plasma. 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 Plasma -Plasma. at
the cost of the Purchaser, and if upon inspection
Plasma -Plasma. agrees that the part is
defective, Plasma -Plasma. will repair
or replace the same (as Plasma -Plasma.
thinks fit) and will return the same to the Purchaser.
If during the Warranty Period the Purchaser notifies
Plasma -Plasma. that any part of the Equipment
(other than stand-alone Equipment) is defective, Plasma -Plasma. 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) Plasma -Plasma. 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) Plasma -Plasma. 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, Plasma -Plasma. 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 Plasma -Plasma.'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 Plasma -Plasma. results in death or personal injury
and except for fraud, the aggregate liability of Plasma -Plasma. 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 Plasma -Plasma. will exclude and limit liability as set out in
this Condition 9. The Purchaser agrees that it is
better placed than is Plasma -Plasma.
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 Plasma -Plasma.'s obligations under it..
H. Plasma -Plasma. 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 Plasma -Plasma. 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. Plasma -Plasma. 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 Plasma -Plasma. 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,
Plasma -Plasma.'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 Plasma -Plasma., Plasma -Plasma. 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, Plasma -Plasma. shall be entitled to retain (to
the extent it shall prove necessary) and set off against
any liability of the Purchaser to Plasma -Plasma. any monies already paid by the Purchaser.
C. If Plasma -Plasma. 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
Plasma -Plasma. or the Purchaser may terminate
this Agreement by giving notice in writing to the
other. If this Agreement is frustrated or so terminated
Plasma -Plasma. 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 Plasma -Plasma. in full, the Purchaser
shall promptly return the Equipment to Plasma -Plasma. and if the Purchaser does not do so,
Plasma -Plasma. 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 Plasma -Plasma. 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 Plasma -Plasma. of the full purchase
price of the Equipment and the performance of the
other obligations of the Purchaser, Plasma -Plasma. 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
Plasma -Plasma. thinks fit;
B. The Purchaser shall use the Programs only with
the Equipment (or other Equipment from time to time
supplied by Plasma -Plasma.) 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 Plasma -Plasma. with the Programs;
E. The Purchaser shall bring to the attention of Plasma -Plasma. 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 Plasma -Plasma. take or join Plasma -Plasma. in taking all such action as Plasma -Plasma. 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 Plasma -Plasma.;
G. The Purchaser will ensure that the Programs as
used only in accordance with this Agreement and the
Purchaser will permit Plasma -Plasma.
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 Plasma -Plasma. 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. Plasma -Plasma. 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 Plasma -Plasma. 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 Plasma -Plasma., 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 Plasma -Plasma.;
(ii) in the event of such proceedings Plasma -Plasma. shall have the right at its discretion
either to procure for the Purchaser at Plasma -Plasma.'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 Plasma -Plasma. 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 Plasma -Plasma. taking into account the expected useful
life of the Equipment, the duration of the Purchaser's
use thereof and then current accounting practice;
(iii) Plasma -Plasma. is promptly notified
in writing by the Purchaser of any claim being made
or action threatened or brought against the Purchaser
and Plasma -Plasma. 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
Plasma -Plasma. in this connection.
B. Except, as aforesaid Plasma -Plasma.
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 Plasma -Plasma. (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 Plasma -Plasma..
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 Plasma -Plasma..
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.
