These are the terms and conditions under which Synamedia is willing to purchase goods and services (hereinafter referred to as “Goods” (as further defined in clause 2)) from the Supplier. Unless Synamedia otherwise agrees in writing, all contracts are entered into on the basis of these Conditions to the exclusion of any other terms and conditions set out or referred to in any document or other communication used by the Supplier in concluding an Order. The terms shall only be enforceable by the Supplier or Synamedia and no third party shall have the right to rely on the terms as provided for in the Contract (Rights of Third Parties) Act 1999.
In these Terms and Conditions:
“Delivery” shall mean the transfer of physical possession of the Goods which shall occur at the ex-works point;
“Goods” means equipment, Software, prototypes, documentation or any other deliverable item together with services such as installation, integration and training (but excluding maintenance) that is subject to an Order;
“Order” means the purchase order to be issued by Synamedia that is subject to these Terms and Conditions superseding any terms that Supplier may have stated or which may conflict with these terms;
“Intellectual Property Rights” means patents, trademarks, service marks or business names, registered designs, copyrights, design rights, utility models, topography rights, applications to register any of the aforementioned rights, trade secrets, know how and rights of confidence and any other intellectual or industrial property rights of any nature whatsoever in any part of the world;
“Software” means any computer program;
“Supplier” means a person, firm or company on which Synamedia places an Order;
“Synamedia” Synamedia Limited with registered office at One London Road, Staines-upon-Thames, Middlesex, TW18 4EX, UK, which definition shall include affiliates of Synamedia.
Clause headings are for ease of reference and do not form part of nor shall they affect the interpretation of these Conditions or any contract that incorporates them.
References to clause numbers are references to clauses in these Conditions unless otherwise stated.
Where the context so admits or requires words denoting the singular include the plural and vice versa and words denoting any gender include all genders.
3.1 Supplier will supply the Goods in accordance with the Order.
3.2 Supplier warrants that all Supplies correspond strictly with any and all representations, descriptions, advertisements, brochures, drawings, specifications and samples made or given by Supplier or stipulated by Synamedia, and that they are in every respect fit for any purpose for which Synamedia has expressly or by implication made known that it requires them up to the date of placing of the Purchase Order, durable, of satisfactory and acceptable quality, in compliance with any applicable national or international standards and also of a standard not less than that of any previous Goods approved by Synamedia and shall (for the purpose of the Consumer Protection Act 1967 – “the CPA”– the Health and Safety at Work Act 1974 – “the HSWA” – and otherwise without limitation) be safe, free form defects and in compliance with the general safety requirements, any applicable safety regulations and all other applicable legal requirements.
3.3 Supplier shall undertake maintenance of the Goods as may be agreed further to the Order.
4.1 Delivery terms for all Goods shall be DDP (Incoterms 2010), to the Synamedia designated location., unless otherwise agreed in writing.
4.2 Supplier undertakes to deliver the Goods by the date dated in the Order.
4.3 If the Supplier is late with delivery of Goods, Synamedia shall be entitled to liquidated damages equal to 5% of the price of the relevant Goods for each week or part of a week that delivery is delayed up to a maximum of 25%, which liquidated damages Synamedia may recover by set off against any sums owed to Supplier. Synamedia and Supplier hereby agree that such liquidated damages are a fair and reasonable estimate in respect of the likely cost and damage to be incurred by Synamedia as a result of such late delivery.
5. Price and Payments
5.1 Unless stated otherwise in the Purchase Order or elsewhere in the Contract, the price agreed by Synamedia for Goods is a fixed price which includes packing, labelling, carriage, insurance, delivery, royalities and license fees (if applicable) and all other taxes, duties and impositions (other than UK VAT which Synamedia shall pay in addition at the appropriate rate subject to receipt of appropriate tax invoices) and is not subject to alteration for any reason whatsoever.
5.2 Undisputed invoices will be paid within sixty (60) days of the date of receipt by Synamedia. To the fullest extent permissible by law, the Supplier’s right of set-off is hereby excluded.
5.3 If Synamedia is overdue with any payment then, the exclusive remedy for the Supplier shall be the right to claim interest on the overdue amount at the annual rate of two (2) percentage points above the prevailing base rate of the HSBC plc, which interest shall accrue on a daily basis from the date payment became overdue until payment of the overdue amount.
6.1 No variation to the scope or terms of an Order shall take effect unless agreed in writing by Synamedia
7. The Supplier’s Responsibilities
7.1 The Supplier shall promptly provide Synamedia with all information and assistance Synamedia requests from time to time.
7.2 The Supplier undertakes that all information provided by it to Synamedia will be accurate in all material respects and that the Supplier is entitled to provide the information to Synamedia for its use without recourse to any third party.
The Supplier undertakes that no additional licences, authorisations, permits and other consents are required under applicable laws for the purposes of Synamedia’s use of the Goods. In the event that additional consents are required they will solely be the responsibility of the Supplier. Supplier undertakes to fully reimburse Synamedia for all costs and expenses that may be incurred by Synamedia as a result of obtaining such consents.
9. Force Majeure
Neither party shall be liable for any loss or damage suffered or incurred by the other arising from the first party’s delay or failure to fulfil or otherwise discharge any of its obligations further to an Order to the extent that such delay or failure is caused by any cause or circumstance beyond its reasonable control including but not limited to act of God, governmental act, withholding, delay or revocation of export control approval or other licence, war, fire, flood, explosion, civil commotion or industrial dispute of a third party. Subject to the party so delaying promptly notifying the other party in writing of the reason for the delay and the likely duration of the delay, the performance of the delaying party’s obligations, to the extent affected by the delay, shall be suspended during the period that the cause persists and each party shall use all reasonable endeavours to avoid the effect of that cause provided that if performance is not resumed within 60 days of that notice the non-delaying party may at any time thereafter but in any event prior to resumption of obligations by the delaying party by notice in writing terminate the affected portion of the Order.
10. Acceptance Tests
10.1 Where Synamedia has specified that the Goods will be subject to acceptance then Synamedia in its discretion will determine the process to be followed.
10.2 Where Synamedia determines that the Goods will be subject to acceptance tests then acceptance will only occur when confirmed in writing by Synamedia.
11.1 Title in Goods will not pass to Synamedia until such time as it has confirmed in writing acceptance and payment has been made. Supplier will deliver the Goods to Synamedia with full title guarantee.
12.1 Software shall at all times remain the property of the licensor subject to the license terms granted to Synamedia.
12.2 Synamedia shall have a full license to use the Software further to the Order.
13.1 Subject always to Clause 14.3, Supplier warrants and undertakes that the Goods shall not infringe any third-party intellectual property rights and substantially conform to any specifications or functions or the specific requirements of Synamedia or other levels of performance required by Synamedia. Supplier shall remedy, free of charge, any material defect in any Goods which manifests itself at anytime after Delivery PROVIDED THAT:
13.1.1 Synamedia notifies Supplier of that defect in writing within seven (7) days of the defect occurring;
13.1.2 the defect did not materialise and/or was not exacerbated as a result of misuse, neglect, alteration, mishandling, attempted repair, maintenance or unauthorised manipulation by any person other than Synamedia authorised personnel;
13.1.3 the defect did not arise out of any information, design, or any other assistance supplied or furnished by Synamedia;
13.1.4 the defect is directly attributable to the Goods;
13.1.5 the defect results in the Goods failing to comply materially with agreed specifications.
14.1 Except in respect of injury to or death of any person (where neither party limits its liability) the respective total cumulative liability of the Supplier shall be the greater of one million pounds (£1,000,000) or sums payable by Synamedia under the Order.
14.2 Notwithstanding anything else contained in these terms, to the fullest extent permitted by law, Synamedia shall not be liable to the Supplier for loss of profits, loss of contracts, anticipated savings, data, goodwill and revenue or other indirect or consequential loss whether arising from negligence, breach of contract or howsoever.
14.3 No liability shall attach to Synamedia, its agents, its employees or sub-contractors in respect of any representations made or advice given whether before or after the issue of the Order, unless confirmed in writing by Synamedia.
14.4 These Conditions set forth the full extent of obligations and liabilities in respect of the supply of GOODS. Any condition or other term in respect of the GOODs which might otherwise be implied into or incorporated into a Contract or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permissible at law.
14.5 The limitations of liability in this Clause 14 have been considered by Synamedia and the Supplier in the light of availability of insurance and both parties agree that they are fair and reasonable.
15. Intellectual Property Rights
All Intellectual Property Rights arising further to an Order including without limitation those arising from the supply of Goods shall vest in and be owned by Synamedia absolutely and the Supplier shall acquire no right, title or interest therein save as specified in writing in an Order.
16. Third Party Rights
16.1 Subject to Clause 14.1 and to Clause 16.2, Supplier will indemnify Synamedia and keep Synamedia fully and effectively indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the normal use or possession of Goods infringes any intellectual property rights in the country where the Goods (equipment and Software) are installed or other proprietary right belonging to a third party and PROVIDED THAT:
16.1.1 Synamedia promptly notifies Supplier in writing of any allegations of infringement of which it has notice; and
16.1.2 Synamedia does not make any admissions without Supplier’s prior written consent; and
16.1.3 Synamedia immediately allows Supplier to conduct and/or settle all negotiations and litigation resulting from any such claim; and
16.1.4 Synamedia provides Supplier, at Supplier’s request and expense, with all available information and assistance in defending such claim as Supplier may reasonably require.
16.2 Solely in the context of Supplier’s indemnity obligations set out above, if Synamedia’s normal use or possession of the Goods is held by a court of competent jurisdiction to constitute an infringement of a third party’s intellectual property rights or if Supplier is advised by legal counsel that such use or possession is likely to constitute such an infringement then Supplier shall promptly at its own expense and at its sole option;
16.3.1 procure for Synamedia the right to continue using and possessing such Goods; or
16.3.2 modify or replace the Goods so as to avoid the infringement (in which event Supplier shall compensate Synamedia for the amount of any direct loss and/or damage sustained or incurred by Synamedia during such modification or replacement); or
16.3.3 remove Goods from its location and refund the price of the Goods to Synamedia.
17. Cancellation and Termination
17.1 The Supplier may not cancel any Order without Synamedia’s prior written consent. Synamedia may terminate an Order at anytime by notice in writing to the Supplier.
17.2 Synamedia or the Supplier may terminate an Order immediately at any time by written notice to the other if:
17.2.1 the other commits a material breach which it fails to remedy within 30 days of receiving written notice requiring it to do so; or
17.2.2 the other becomes insolvent, has an administrator, receiver or manager appointed of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its winding-up dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or any event occurs in a foreign jurisdiction analogous to, or comparable with any of the above.
17.3 Any termination of an Order (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into force or continue in force on or after that termination. Notwithstanding the foregoing, the parties agree that the equitable remedy of specific performance of either party is hereby expressly excluded.
18. Confidential Information
18.1 Each party shall preserve the secrecy of all confidential information of the other which it receives, keep such information secure and protected against theft, damage, loss or unauthorised access, and not use such information for any purpose except as contemplated by an Order. Moreover, each party shall ensure that the aforesaid obligations are observed by its employees, officers, agents, contractors and sub-contractors.
18.2 The obligations imposed by this Clause 18 shall survive the variation, renewal or termination of an Order, but shall not apply to information which is already in or subsequently comes into the public domain through no fault of the recipient.
The Supplier may not, during the lifetime of an Order and for a period of twelve (12) months after its completion, directly or indirectly solicit any employee of Synamedia for the purpose of causing such employee’s employment with Synamedia to terminate. In the event of the Supplier’s breach of this clause, the Supplier agrees to pay Synamedia a sum equal to twice such employee’s annual salary (plus bonuses, if any).
20.1 Except as may be expressly provided elsewhere in these Conditions, the Supplier may not transfer, assign or sub-license an Order or any or all of its rights under it without the prior written consent of Synamedia.
20.2 Synamedia or the Supplier may assign an Order on a transfer of its business or undertaking in which event an Order shall automatically accrue for the benefit of the assigning party’s successor by operation of law.
All notices and other communications required or permitted to be served or given shall be in writing and sent by first class post, courier or facsimile to the intended recipient’s address as specified above or such other address as either party may notify to the other from time to time.
22. Law and Jurisdiction
22.1 The construction, validity and performance of the Order shall be governed by the laws of England and Wales. The parties submit to the exclusive jurisdiction of the English Courts to resolve any disputes between them.
23. Legal Compliance
23.1 To the extent that the Order is to be performed outside the UK, the Supplier shall supply Synamedia with such information as Synamedia may reasonably require as regards the potential impact of the relevant national laws on the provision of the Order or on the enforceability of any of these Conditions.
24.1 The relationship of the parties is that of independent contractors dealing at arm’s length. Except as otherwise stated in these terms and conditions, nothing shall constitute the parties as partners, joint venturers or co-owners, constitute either party as the agent, employee or representative of the other, or empower either party to act for, bind or otherwise create or assume any obligation on behalf of the other.
24.2 The parties shall do and execute all such further acts and things as are reasonably required to give full effect to the rights given and the transactions contemplated by these terms and conditions.
24.3 The failure of either party to enforce any term of an Order does not constitute a waiver of it and shall in no way affect the right later to enforce the term.
24.4 The invalidity or unenforceability of the whole or part of any provision of these terms and conditions shall not adversely affect the validity or enforceability of the remaining provisions or the remainder of the provision in question, which shall remain in full force and effect. Where relevant, the parties shall use their reasonable endeavours to find a new stipulation resembling the invalid one in its commercial consequence as much as possible.