Standard Terms & Conditions of Hire ("Conditions")
These
are the Standard Terms and Conditions of Time Delay.tv ("Magic Media Ltd")
which may be updated from time to time by notification in writing.
Where there is any inconsistency between the provisions hereof and the
Order (defined below), the provisions of the Order will apply.
1. Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:-
"Agreement" means the agreement incorporating these Conditions and the Order.
"Consumables" means those items sold by Time Delay.tv to the Hirer from time to time including, but not limited to, video cassette tapes and batteries.
"Delivery Date" means the date set out in the Order. "Equipment" means the equipment supplied by way of hire by Time Delay.tv as set out in the Order.
"Hirer" means the person who, in the course of their business, has agreed to hire the Equipment from Time Delay.tv.
"Hire Charge" means all monies payable by the Hirer pursuant to Condition 3 of these Conditions.
"Hire Period" means the dates specified in the Order.
"Order" means a provisional "Booking Form" of Time Delay.tv, signed by the Hirer and returned and received by Time Delay.tv, and which is subject to these Standard Terms and Conditions.
"Price" means the price of the Consumables as set out in the Order.
1.2 The headings in these Conditions are for ease of reference only and shall not affect the construction or interpretation of the Agreement.
1.3 Words de
noting the singular meaning include the plural and vice versa unless the context otherwise requires.
1.4 Words of any one gender include the other gender and may be used interchangeably and words denoting natural persons include corporations and firms and all such words are to be construed interchangeably.
2. Hire of the Equipment and Sale of Consumables
2.1 In consideration of the payment by the Hirer of the Hire Charge, Time Delay.tv agrees to hire the Equipment to the Hirer for the Hire Period subject to the conditions of the Agreement. 2.2 In consideration of the payment by the Hirer of the Price, Time Delay.tv agrees to supply and sell to the Hirer the Consumables set out in the Order.
2.3 The Order constitutes an offer by the Hirer to hire the Equipment from Time Delay.tv subject to these Conditions. No Order placed by the Hirer shall be deemed to be accepted by Time Delay.tv until Time Delay.tv issues an acknowledgement in writing of the Order, or if earlier, Time Delay.tv delivers the Equipment to the Hirer.
3. Payment of the Hire Charge and the Price
3.1 The Hirer shall pay to Time Delay.tv the Hire Charge and the Price within thirty (30) days of Time Delay.tv's invoice. All sums due are exclusive of VAT or other applicable sales tax which shall be paid by the Hirer at the appropriate rate.
3.2 Whilst we try and maintain current prices, you will appreciate that with currency fluctuations and prime materials subject to rapid cost variation the following prices are subject to verification at the time of order. Prices are subject to change without notice. Prices and availability are subject to change at any time by Time Delay.tv. E&OE.
4. Delivery
4.1 Time Delay.tv shall use all reasonable endeavours to deliver the Equipment and the Consumables to the Hirer on the Delivery Date. For the avoidance of doubt the time for delivery shall not be of the essence and Time Delay.tv shall have no liability to the Hirer if it fails to meet any requested or estimated date for delivery.
5. Hirer's Obligations
5.1 During the Hire Period, the Hirer shall:
(a) keep the Equipment fully insured against all risks of loss and damage, to the full replacement value of the Equipment, from the time that delivery is effected or tendered until the Equipment is returned to Time Delay.tv and provide forthwith to Time Delay.tv at Time Delay.tv's reasonable request, a copy of the certificate of such insurance;
(b) ensure that the Equipment is used in a proper manner by competent trained employees only or by persons under their immediate supervision;
(c) keep and operate the Equipment in a proper and prudent manner;
(d) ensure that the external surfaces of the Equipment are kept clean and in a good condition;
(e) not itself, nor permit its employees, agents, sub-contractors or servants to take the Equipment outside of the United Kingdom of Great Britain and Northern Ireland without the prior written consent of Time Delay.tv. Such consent shall not be unreasonably withheld subject always to the Hirer arranging and paying for the insurance of the Equipment to the full replacement value for such time as the Equipment is overseas;
(f) not alter, erase, deface or overprint any trade mark or any other notice of proprietary rights placed by Time Delay.tv on the Equipment; and
(g) store or otherwise keep the Equipment in such a way as clearly to indicate at all times that the Equipment is owned by Time Delay.tv and shall not remove, obscure or delete any mark placed on the Equipment by Time Delay.tv which may enable the Equipment to be so identified.
(h) not attempt to repair the Equipment.
5.2 The Hirer shall forthwith upon the occurrence of any loss, breakdown or damage to the Equipment notify Time Delay.tv of this in writing. In case of breakdown or damage the Hirer shall return the Equipment to Time Delay.tv and Time Delay.tv will arrange for the repair of the Equipment or (if lost or Time Delay.tv in its absolute discretion considers the Equipment to be beyond economic repair) for its replacement.
5.3 Subject to the Defects Warranty set out in Condition 8, where the Equipment requires repair or replacement necessitated in any of the circumstances set out in paragraphs 8.4(a), (b), (c) or
(e) of Condition 8.4 or replacement in case of loss:-
(a) the cost of any repair or replacement (whether on loss, breakdown or damage) shall be the responsibility of the Hirer who will forthwith reimburse Time Delay.tv on an indemnity basis the full cost thereof forthwith after notification in writing of such costs; and
(b) until the Equipment or any replacement is returned to Time Delay.tv in good working condition the Hirer shall remain liable to pay the Hire Charge in accordance with Condition 3 at the prevailing rates.
6. Title to the Equipment
6.1 The Equipment shall at all times remain the property of Time Delay.tv.
6.2 The Hirer hereby grants an irrevocable licence to Time Delay.tv, its agents and servants to enter into its premises and collect the Equipment if the Hirer is in breach of Conditions 3 or 5 or if Time Delay.tv has, in any way whatsoever, dealt with or attempted to deal with the Equipment as either legal or equitable owner.
7. Warranties
7.1 Subject to the exception set out in Condition 7.3 below and the limitations upon its liability in Condition 11 below, Time Delay.tv warrants and undertakes to the Hirer that:-
(a) its title to and property in the Equipment and Consumables are free and unencumbered and that it has the right, power and authority to enter into the Agreement;
(b) any services provided by Time Delay.tv under the Agreement shall be supplied and rendered with reasonable skill, care and diligence by appropriately experienced, qualified and trained personnel in accordance with good industry practice; and (c) the Equipment and Consumables supplied to the Hirer shall be of satisfactory quality, reasonably fit for their purpose and free from defects in design, materials and workmanship. For the avoidance of doubt Time Delay.tv makes no warranties as to the suitability of the Equipment.
7.2 The Hirer warrants and undertakes to Time Delay.tv that it is, and shall remain throughout the Hire Period free and entitled to enter into the Agreement.
7.3 Subject to Condition 7.1, the Hirer acknowledges and accepts that Time Delay.tv gives no warranties of any kind in relation to the Equipment or Consumables and that any conditions, warranties, terms and undertakings which would otherwise be implied into the Agreement (whether by statute or otherwise) relating to the Equipment or Consumables, or the provision of any other goods or services by Time Delay.tv to the Hirer under the terms of the Agreement are hereby excluded to the fullest extent permitted by law.
8. Defects Warranty
8.1 Except as provided below, Time Delay.tv shall be responsible, without charge to the Hirer, for rectifying as soon as reasonably practicable any defect which appears in the Equipment ("the Defects Warranty"). For the purposes of this Condition 8, a "Defect" means any non-conformance with a warranty specified in Condition 7.1(c).
8.2 Time Delay.tv's obligations under the Defects Warranty are contingent upon Time Delay.tv being given details of the Defect and adequate time to rectify such Defect. If Time Delay.tv rectifies the Defect within a reasonable period of time then it shall have no other liability of any kind in respect of or arising from such Defect.
8.3 Where the malfunction in the Equipment is due to the default of the Hirer under Condition 8.4, Time Delay.tv may charge the Hirer for the repair of the Equipment in accordance with its standard scale of charges from time to time, including but not limited to the costs of repair, removal and transportation of the Equipment.
8.4 The Defects Warranty shall not include
repairs of the Equipment necessitated otherwise than by fair wear
and tear, or by the neglect or default of the Hirer, including but
not limited to:
(a) defects or errors resulting from any modifications of the
Equipment made by the Hirer or any person other than a person acting
on behalf of Time Delay.tv;
(b) incorrect use of the Equipment or operator error;
(c) any attempt by any person other than Time Delay.tv's personnel to adjust, repair or maintain the Equipment;
(d) defects or errors resulting from any fluctuation of electric power, humidity controls or other adverse environmental conditions due to whatever cause;
(e) accident, transportation, neglect, misuse or default of the Hirer, its employees or agents or any third party; or
(f) an event of force majeure, as defined in Condition 11.
9. Limitation of Liability
9.1 Nothing in the Agreement shall operate to exclude or limit Time Delay.tv's liability for:
(a) death or personal injury caused by the negligence of Time Delay.tv, its servants, agents, employees or subcontractors;
(b) any breach or contravention of the conditions implied by Section 12 of the Sale of Goods Act 1979 and Section 2 Supply of Goods and Services Act 1982;
(c) fraudulent misrepresentation; or
(d) any breach of any undertaking as to title, quiet possession and freedom from encumbrance implied by law.
9.2 Subject to Condition 9.1, Time Delay.tv shall not be liable to the Hirer for any loss of, damage to or costs in respect of:
(a) loss of profit, anticipated profits, revenues, anticipated savings;
(b) goodwill or business opportunity;
(c) indirect or consequential loss or damage whether foreseeable, known, foreseen or otherwise.
9.3 Time Delay.tv shall be liable for physical damage to the Hirer's tangible property resulting from its negligence up to a maximum of twice the Hire Charge.
9.4 Time Delay.tv's liability for a misrepresentation as to a matter fundamental to its ability to perform the Agreement shall be subject to the limit set out in Condition 9.3.
10. Term and Termination
10.1 Subject to Condition 10.3, the Agreement shall commence on the date on which Time Delay.tv accepts the Order in writing and shall continue in force for the Hire Period and beyond until the equipment is returned.
10.2 Without prejudice to any other remedies available, either party shall be entitled to terminate the Agreement with immediate effect by giving written notice of termination to the other if:
(a) the other commits a material breach of the Agreement which, in the case of a breach capable of remedy, shall not have been remedied within fourteen (14) days of the receipt by the other of a notice identifying the breach and requiring its remedy. Upon remedy, the party in breach shall provide proof of remedy within ten (10) days thereof; or
(b) if the other party passes a resolution for winding up (other than for the purpose of a solvent amalgamation or reconstruction) or if it shall cease or threaten to cease to carry on its business or substantially the whole of its business or it becomes or is declared insolvent, bankrupt or convenes a meeting of or proposes to make any arrangement or composition with its creditors or if a liquidator, receiver, administrator or trustee or similar officer is appointed over the assets of it or any analogous step is taken in connection with insolvency or dissolution.
10.3 Without prejudice to any other remedies available, Time Delay.tv may terminate the Agreement with immediate effect if any payment due by the Hirer shall be outstanding for more than seven (7) days.
10.4 Conditions 6, 7, 8 and 9 shall survive termination of this Agreement.
10.5 Any termination of the Agreement shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law.
10.6 At the end of the Hire Period or (if earlier) immediately upon termination of the Agreement, the Hirer shall, at its own expense, forthwith return to Time Delay.tv all Equipment supplied to the Hirer by Time Delay.tv under the conditions of the Agreement.
11. Force Majeure
11.1 Neither party shall be liable for any delay in performing any of its obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the party so delaying (including, without limitation, any act of God, fire, flood, strike, lock-out or other form of industrial action).
12. Notices
12.1 Any notice or other document to be given under the Agreement shall be in writing and delivered or sent by hand-delivery, e-mail or facsimile transmission ( to the address or e-mail or facsimile number of the other party set out in the Order (or such other address or number as may have been notified) and any such notice or other document shall be deemed to have been served and/or delivered (if hand-delivered) at the time of delivery or (if sent by e-mail or facsimile transmission) upon the expiration of twelve (12) hours after despatch.
13. Assignment And Sub-Licensing
13.1 The Hirer shall not be entitled to assign, transfer, sell, sub-license, lease, rent, charge or otherwise deal in or otherwise encumber the Equipment.
13.2 Subject to the prior written consent of the Hirer, which shall not be unreasonably withheld or delayed, Time Delay.tv may assign the Agreement or any of its rights and obligations hereunder to any other party.
14. General
14.1 If any provision in the Agreement shall in whole or in part be held to any extent to be illegal or unenforceable under any enactment or rule of law that provision or part thereof shall to that extent be deemed not to form part of the Agreement and the enforceability of the remainder of the Agreement or any part hereof shall not be affected.
14.2 Subject to any variation under Condition 14.3, the terms and conditions of the Agreement shall apply as between the parties in respect of the subject matter hereof to the exclusion of all other terms and conditions (including any terms and conditions that the Hirer purports to apply).
14.3 The Agreement contains the entire understanding of the parties with respect of the subject matter hereof, supersedes all prior agreements and may not be modified or amended by the parties by a written instrument signed by both parties.
14.4 Time Delay.tv shall not be liable to the Hirer for loss arising from or in connection with any representations (except fraudulent), agreements, statements or undertakings made prior to the date of execution of the Agreement.
14.5 For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of the Agreement, the Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
14.6 The Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English Courts.
14.7 No failure of either party to exercise, and no delay in exercising, any right or remedy in respect of any condition herein contained shall operate as a waiver of such right or remedy.
14.8 Time Delay.tv and the Hirer are each independent contractors with respect to each other and nothing in the Agreement shall create any association, partnership or joint venture relationship between them.
14.9 The Agreement may not be modified or amended except in writing signed by a director of each of the parties.
Standard Terms and Conditions of Sale ("Conditions")
These are the Standard Terms and Conditions of Time Delay.tv ("Time Delay.tv") which may be updated from time to time by Time Delay.tv giving notification in Writing. Where there is any inconsistency between the provisions hereof and the Order, the provisions of the Order will apply.
1. Interpretation
1.1 In this Agreement, unless the context otherwise requires the following expressions shall have the following meanings:- 'Agreement' means the agreement incorporating these Conditions and the accepted Order;
'Conditions' mean the standard terms and conditions set out here and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Parties;
'Confidential Information' means the Agreement and all information obtained by one party from the other pursuant to the Agreement which is marked, or ought reasonably to be regarded as confidential;
'Customer' means the person so described in the Order; 'Customer's Materials' mean all films, master disks, information, data media, software, text, visual images, pictures and other materials supplied by the Customer for use in or to form part of the Media Product(s);
'Delivery Address' means the address stated on the Order; 'Delivery Date' means the date set out in the Order; 'Intellectual Property' means copyright, moral rights, trade marks (whether registered or unregistered), logos, trade names, unregistered and registered designs, database rights, rights in computer software, domain names, rights in confidential information and any and all other intellectual property rights (whether now subsisting or in the future created) both in the UK and all other countries of the world for the full period of those rights (including any extensions and renewals);
'Media Product(s)' means those physical or electronic items which as a result of the provision of the Services conform to and carry the materials described in the Job Description including, but not limited to, videotapes, audio tapes, CDs, DVDs and including any instalment of the Media Product(s);
'Order' means a provisional "Booking Form" of Time Delay.tv which
is subject to these Conditions and acceptance by Time Delay.tv (as
described in Condition 2.2);
'Parties' means the Customer and Time Delay.tv;
'Price' means the price charged by Time Delay.tv to the Customer for the Media Product(s) and handling the Customer's Materials as set out in the Order;
'Time Delay.tv' means Magic Media Ltd (Company Number: 5359534) whose registered office is at Russell Bedford House, City Forum, 250 City Road, London EC1V 2QQ
'Services' means the services to be provided by Time Delay.tv under the Agreement including, without limitation, dubbing, copying, editing, mixing, mastering, translating, voicing over, formatting or other services in relation to the Customer's Materials as further described in the Order;
'Job Description' means the scope of the Services to be provided by Time Delay.tv under the Agreement as further described in the Order;
'Third Party Intellectual Property' means any and all Intellectual Property licensed to the Customer by a third party in connection with the Customer's Materials;
'Use' means to copy, adapt, publish or otherwise exploit, where applicable, the Customer's Materials and/or the Media Product(s);
'Writing' includes e-mail, facsimile transmission and comparable means of communication.
1.2 The headings in these Conditions are for ease of reference only and shall not affect the construction or interpretation of the Agreement.
1.3 Words denoting the singular meaning include the plural and vice versa unless the context otherwise requires.
1.4 Words of any one gender include the other gender and may be used interchangeably and words denoting natural persons include corporations and firms and all such words are to be construed interchangeably.
2. Basis of Sale
2.1 In consideration of the payment by the Customer of the Price and the provision of the Customer's Materials to Time Delay.tv, Time Delay.tv agrees to supply the Media Product(s) subject to these Conditions.
2.2 The Order signed by the Customer and returned to Time Delay.tv constitutes an offer by the Customer to purchase the Services and the Media Product(s) from Time Delay.tv subject to these Conditions. No Order placed by the Customer shall be deemed to be accepted by Time Delay.tv until Time Delay.tv issues an acknowledgment in Writing of the Order, or if earlier, Time Delay.tv provides the Services and delivers the Media Product(s). Time Delay.tv reserves the right to change its terms or refuse future orders.
3. Price
3.1 The Price of the Media Product(s) shall be as stated in the Order and, unless otherwise stated in the Order, shall be exclusive of VAT.
4. Terms of Payment
4.1 Time Delay.tv may invoice the Customer before, on or immediately following delivery of the Media Product(s) to the Customer and each invoice shall quote the number of the Order. Time shall be of the essence in respect of the Customer's payment of Time Delay.tv's invoice.
4.2 Unless otherwise stated in the Order, the Customer shall pay the Price of the Media Product(s) to Time Delay.tv within 30 (thirty) days of Time Delay.tv's invoice. Any other payment terms must be agreed in Writing and signed by one of Time Delay.tv's authorised representatives prior to the commencement of any account being initiated.
4.3 If the Customer fails to pay the sums due under Time Delay.tv's invoice pursuant to the Agreement (without prejudice to Time Delay.tv other rights and remedies) Time Delay.tv may immediately suspend provision of and retain possession of the Media Product(s) and/or the Services until such payment is made and/or exercise a lien on any property of the Customer then in Time Delay.tv's possession.
4.4 The Customer shall make all payments due under the Agreement without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Time Delay.tv to the Customer.
5. Delivery
5.1 The Media Product(s) shall be delivered to the Delivery Address on or before the date stated in the Order during the Customer's usual business hours.
5.2 Where the Delivery Date of the Media Product(s) or of performance of the Services is to be specified after the placing of the Order, Time Delay.tv shall give the Customer reasonable notice of the specified date.
5.3 If the Media Product(s) are to be delivered in instalments, the Agreement will be treated as a single Agreement and not severable.
5.4 The quantity of any consignment of Media Product(s) as recorded by Time Delay.tv upon despatch from Time Delay.tv's place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
5.5 Time Delay.tv shall not be liable for any non-delivery of Media Product(s) or non-performance of the Services (even if caused by Time Delay.tv's negligence) unless notice in Writing is given to Time Delay.tv within 7 (seven) days of the date when the Media Product(s) would in the ordinary course of events have been received or the Services performed.
5.6 Any liability of Time Delay.tv for non-delivery of the Media Product(s) shall be limited to replacing the Media Product(s) within a reasonable time or issuing a credit note at the pro rata Agreement rate against any invoice raised for such Media Product(s).
6. Job Description
6.1 The quantity, quality and description of the Media Product(s) and the Services shall, subject to these Conditions, be as specified in the Order and/or in any applicable Job Description supplied by the Customer and accepted by Time Delay.tv in Writing by one of Time Delay.tv's authorised representatives.
6.2 Time Delay.tv shall not be liable for any failure to provide or delay in providing the Media Product(s) and the Services to the extent that such delay arises out of or in connection with any act or omission of the Customer or its sub-contractors, agents, officers or employees which either directly or indirectly affects Time Delay.tv's ability to provide the Media Product(s) and the Services including any breach of the Customer of its obligations under the Agreement. Time Delay.tv reserves the right to invoice the Customer for any additional expenses incurred by Time Delay.tv as a result of such failure or delay.
6.3 During the course of supplying the Media Product(s) and performing the Services, Time Delay.tv reserves the right to make any improvement, substitution or modification to the Job Description as it reasonably deems fit provided that such improvement, substitution or modification will not materially change the nature of the Media Product(s) and/or the performance of the Services.
6.4 Time Delay.tv reserves the right to refuse to provide the Media Product(s) and/or the Services where, in its reasonable opinion, the content of the Customer's Materials and/or the Order and/or the Job Description are or are likely to be construed in Time Delay.tv's reasonable opinion as being illegal, obscene, blasphemous, threatening, defamatory, discriminatory, promoting illegal or unlawful activity or are otherwise actionable or in violation of any rules, regulations or laws to which the Customer's Materials, Media Product(s) and/or the Services are subject.
7. Risk and Property
7.1 The Customer acknowledges that Time Delay.tv shall not be responsible for any loss of Customer's Materials supplied by it and that it must retain in its possession at least 1 (one) copy of the Customer's Materials supplied to Time Delay.tv pursuant to the Agreement.
7.2 Time Delay.tv shall at its sole discretion and on the request of the Customer retain and store copies of the Customer's Materials and the Media Product(s) at its premises.
7.3 Time Delay.tv and the Customer acknowledge that Time Delay.tv shall at all times hold the Customer's Materials as the Customer's fiduciary agent and bailee and that risk of damage to or loss of the Customer's Materials shall not pass to Time Delay.tv although Time Delay.tv shall take reasonable care and precautions in order to ensure that the Customer's Materials (including the contents thereof) are:-
(a) stored in a safe and secure environment;
(b) insured against loss, theft, fire, damage or other kind of destruction howsoever caused whilst retained and stored on Time Delay.tv's premises to a maximum value of the cost of providing replacement Customer's Materials; and
(c) at all times kept within the control of Time Delay.tv.
7.4 If requested Time Delay.tv shall, in accordance with the written instructions of the Customer, return all the Customer's Materials at the cost of the Customer to the Delivery Address and certify that all duplicates of the Customer's Materials have been destroyed.
7.5 Risk of damage to or loss of the Media Product(s) shall pass to the Customer upon delivery of the Media Product(s) to the Customer in accordance with the Agreement.
7.6 Notwithstanding delivery and the passing of risk in the Media Product(s), or any other Conditions of the Agreement, the property in the Media Product(s) shall not pass to the Customer until Time Delay.tv has received in cash or cleared funds payment in full of the Price of the Media Product(s) and all other media product(s) and/or services agreed to be sold or supplied by Time Delay.tv to the Customer for which payment is then due.
7.7 Until such time as the property in the Media Product(s) passes to the Customer, the Customer shall hold the Media Product(s) as Time Delay.tv's fiduciary agent and bailee, and shall keep the Media Product(s) separate from those of the Customer and third parties and properly stored, protected and insured and identified as Time Delay.tv's property. Until that time the Customer shall be entitled to Use the Media Product(s) in the ordinary course of its business, but it shall account to Time Delay.tv for the proceeds of any sale of the Media Product(s), including insurance proceeds, and shall keep all such proceeds separate from any other monies of the Customer and third parties.
7.8 Until such time as the property in the Media Product(s) passes to the Customer (and provided the Media Product(s) are still in existence and have not been resold) Time Delay.tv shall be entitled at any time to require the Customer to deliver up the Media Product(s) to Time Delay.tv and, if the Customer fails to do so forthwith upon demand, the Customer grants Time Delay.tv a licence to enter upon any premises of the Customer or any third party where the Media Product(s) are stored to repossess the Media Product(s).
7.9 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Media Product(s) which remain the property of Time Delay.tv, but if the Customer does so, all monies owing by the Customer to Time Delay.tv shall (without prejudice to any other right or remedy of Time Delay.tv) forthwith become due and payable.
8. Intellectual Property Rights
8.1 Time Delay.tv acknowledges that any and all of the Intellectual Property used or embodied in or in connection with the Customer's Materials shall remain the sole property of the Customer or of such other party as may be identified therein or thereon (the "Owner") and subject to a breach of the Customer's warranties set out in Condition 11.2, Time Delay.tv shall not during or at any time after the completion, expiry or termination of the Agreement in any way question or dispute the ownership by the Customer or the Owner of any such Intellectual Property.
8.2 The Customer hereby grants a non-exclusive and non-transferable licence to Time Delay.tv to Use the Intellectual Property subsisting in the Customer's Materials in order to perform the Services and provide the Media Product(s).
8.3 Any and all Intellectual Property throughout the world resulting from the supply of the Media Product(s) by Time Delay.tv pursuant to the Agreement in order to Use the Customer's Materials in accordance with the Job Description shall vest exclusively in Time Delay.tv.
8.4 When Time Delay.tv has received cash or cleared funds for payment of the Price by the Customer, Time Delay.tv acknowledges that the Intellectual Property in and to the Media Product(s) and/or any Intellectual Property relating to them and all modifications and amendments thereto shall be the property of the Customer and shall remain the Customer's property.
8.5 Until payment of the Price, the Customer and/or its nominees shall be entitled to a revocable, non-exclusive, non-transferable licence to Use the Intellectual Property created by Time Delay.tv relating to the Media Product(s) supplied under the Agreement.
8.6 Subject only to the express terms of the Agreement, Time Delay.tv reserves the right to use any and all skills, expertise, knowledge and know-how gained and/or arising from supplying the Media Product(s) and/or performing the Services in the provision of similar media product(s) and/or services to other Time Delay.tv's clients and/or potential clients and the Customer shall place no restriction whatsoever on such right. The Customer permits Time Delay.tv to promote and advertise itself through the use of examples of the Media Product(s) in promotional and other materials.
9. Warranties and Liability
9.1 Subject to Conditions 9.2 and 9.3, the Customer acknowledges and accepts that Time Delay.tv gives no warranties of any kind in relation to the Media Product(s) and/or the Services and that any warranties, conditions and other terms implied by statute or common law (except for the conditions implied by Section 12 of the Sale of Goods Act 1979 and/or Section 2 of the Supply of Goods and Services Act 1982, as amended) are, to the fullest extent permitted by law, excluded from the Agreement.
9.2 Subject to Condition 9.5 and 9.6 and the limitations on Time Delay.tv's liability in Condition 10, Time Delay.tv warrants and undertakes to the Customer that the Media Product(s) will:-
(a) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any particular purpose for which the Media Product(s) are being supplied if the Customer has made known such purpose to Time Delay.tv in Writing and Time Delay.tv has confirmed in Writing that it is reasonable for the Customer to use the Media Product(s) for such a purpose.
(b) for a period of 6 months from the Delivery Date, be free from material defects in design, material and workmanship;
(c) materially correspond with any relevant description in the Job Description insofar as this is within Time Delay.tv's control; and
(d) comply with all statutory requirements and regulations relevant to the Media Product(s).
9.3 Subject to Condition 9.5 and 9.6 and the limitations on Time Delay.tv's liability in Condition 10, Time Delay.tv warrants and undertakes to the Customer that the Services will be performed by appropriately qualified and trained personnel, with due care and diligence and in accordance with good industry practice.
9.4 If any Media Product(s) and/or Services are not supplied or performed in accordance with Conditions 9.2 and 9.3, then Time Delay.tv shall, subject to Conditions 9.5 and 9.6 and at its election, either repair the Media Product(s) and/or supply replacement Media Product(s) in accordance with the Agreement as soon as reasonably practical.
9.5 Time Delay.tv shall not be liable for a breach of any of the warranties in Conditions 9.2 and 9.3 unless:-
(a) the Customer gives written notice of a defect to Time Delay.tv within 14 (fourteen) days of the time when the Customer discovers or ought to have discovered the defect; and
(b) Time Delay.tv is given a reasonable opportunity after receiving such notice to examine the Media Product(s) and the Customer (if asked to do so by Time Delay.tv) returns such Media Product(s) to Time Delay.tv's place of business at the Customer's cost for the examination to take place there.
9.6 Time Delay.tv shall not be liable for a breach of any of the warranties in Conditions 9.2 and
9.3 if a defect arises as a result of:-
(a) defects or errors resulting from any modifications of the Media Product(s) made by, or, any act or omission on the part of the Customer or its sub-contractors, agents, officers or employees;
(b) a failure by the Customer or its sub-contractors, agents, officers or employees to use the Media Product(s) in accordance with good industry practice;
(c) accident, transportation, neglect or misuse of the Customer or its sub-contractors, agents, officers or employees; or
(d) an event of force majeure, as defined in Condition 13. 9.7 Where any defect in the Media Product(s) is due to the default of the Customer or its sub-contractors, agents, officers or employees under Condition 9.6, Time Delay.tv may charge the Customer for the repair of the Media Product(s) in accordance with its standard scale of charges from time to time, including but not limited to the costs of repair, removal and transportation of the Media Product(s).
10. Limitation of Liability
10.1 Nothing in the Agreement shall operate to exclude or limit Time Delay.tv's liability for:-
(a) death or personal injury caused by the negligence of Time Delay.tv, its servants, agents, employees or sub-contractors; or
(b) any breach or contravention of the conditions implied by Section 12 of the Sale of Goods Act 1979 and Section 2 of the Supply of Goods and Services Act 1982, as amended; or
(c) fraudulent misrepresentation; or (d) any breach of any undertaking as to title, quiet possession and freedom from encumbrance implied by law.
10.2 Subject to Condition 10.1:-
(a) Time Delay.tv's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the Price; and
(b) Time Delay.tv shall not be liable to the Customer for any special, indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill, loss of contracts, loss of management time or otherwise), costs, expenses or other claims whatsoever and howsoever caused which arise out of or in connection with the Agreement and whether foreseeable, known, foreseen or otherwise.
10.3 Time Delay.tv's maximum liability for physical damage to the Customer's Materials resulting from Time Delay.tv's negligence shall be limited to the cost of providing replacement Customer's Materials.
10.4 Time Delay.tv's liability for a misrepresentation as to a matter fundamental to its ability to perform the Agreement shall be subject to the limit set out in Condition 10.3.
11. Customer's Warranties, Undertakings and Indemnities
11.1 The Customer acknowledges that Time Delay.tv does not operate or exercise final editorial control over, and accepts no responsibility for the content of the Customer's Materials provided to Time Delay.tv by the Customer and as incorporated into the Media Product(s).
11.2 The Customer warrants that:-
(a) it has obtained and will obtain all necessary consents, approvals and licences for the Use of the Customer's Materials to provide the Services and supply the Media Product(s) in accordance with the Job Specification; and
(b) the Use of the Customer's Materials to provide the Services and supply the Media Product(s) in accordance with the Job Specification will not violate any Third Party Intellectual Property.
11.3 In the event of an allegation(s) of a breach of Condition 11.2, or if Time Delay.tv reasonably suspects such a breach or infringement has occurred, Time Delay.tv may, without giving notice to the Customer and without liability, suspend availability of the Media Product(s) and/or the Services pending clarification of such allegation(s) or suspicion.
11.4 The Parties shall notify each other as soon as is reasonably possible after becoming aware of any third party allegation(s) of a breach of the provisions of Condition 11.2.
11.5 The Customer shall indemnify Time Delay.tv and its officers, agents, employees or otherwise against any claims, proceedings, losses, liabilities, damages (including reasonable costs), charges and expenses of whatever nature arising out of or in connection with any claim or action made against Time Delay.tv and its sub-contractors, officers, agents, employees or otherwise relating to a breach of Condition 11.2.
12. Breach of Agreement
12.1 The Agreement may be terminated:-
(a) by either party with immediate effect if the other commits a material breach of any term of the Agreement which in the case of a breach capable of remedy shall not have been remedied within 14 (fourteen) days of the receipt by the other of a written notice identifying the breach and requiring its remedy. Upon remedy, the party in breach shall provide proof of remedy within 10 (ten) days;
(b) by either party with immediate effect if the other party shall have a receiver or administrative receiver appointed over it or any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide reconstruction) or if a court of competent jurisdiction shall make an order to that effect or if the other shall enter into any voluntary arrangement with its creditors or shall be subject to an administration order or shall cease to carry on business;
(c) by Time Delay.tv with immediate effect if:-
(i) the Customer infringes the Intellectual Property rights of Time Delay.tv or Third Party Intellectual Property; or
(ii) notwithstanding Condition 12.1(a) the Customer fails to pay any sums due by it to Time Delay.tv within seven (7) days after the due date as defined in Condition 4.2.
12.2 Conditions 7 to 10 and 14 shall survive termination of the Agreement.
12.3 Any termination of the Agreement shall be without prejudice to any other rights or remedies a party may be entitled to under the Agreement or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of the Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
13. Force Majeure
13.1 Time Delay.tv shall not be liable to the Customer for any delay in performing or any failure to perform any of its obligations in relation to the Customer's Materials, Media Product(s) and the Services, if such delay or failure is beyond that party's reasonable control (including, without limitation, any act of God, fire, flood, strike, lock-out or other form of industrial action).
14. Confidentiality
14.1 Each party shall keep confidential the terms of the Agreement and any and all Confidential Information that it may acquire in relation to the business or affairs of the other party. Each party shall not use the Confidential Information for any purpose other than to perform its obligations under the Agreement. Each party shall ensure that its sub-Contractors, agents, officers and employees comply with the provisions of this Condition 14.
14.2 The obligations on the Parties set out in Condition 14.1 shall not apply to any information which:-
(a) is publicly available or becomes publicly available through no act or omission of the disclosing party; or
(b) is required to be disclosed by order of a court of competent
jurisdiction.
14.3 The provisions of this Condition 14 shall
survive any termination of this Agreement for a period of 5 (five)
years from termination.
15. Sub-Contracting and Assignment
15.1 Time Delay.tv shall be entitled to sub-contract, transfer or assign any or all of its rights and/or obligations under the Agreement without restriction.
15.2 The benefits and obligations conferred by the Agreement upon the Customer are personal to the Customer and shall not be capable of being, assigned, delegated, transferred, sub-contracted or otherwise disposed of and the Customer shall not purport to assign, transfer, sub-contract or dispose of the same.
16. General
16.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal 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. Any such notice may be delivered personally or by first class pre-paid letter, e-mail or facsimile transmission and shall be deemed to have been served, if by hand, when delivered; if by first class post, 48 (forty-eight) hours after posting; and if by facsimile transmission or e-mail, on despatch.
16.2 If any provision in the Agreement shall in whole or in part be held to any extent to be illegal or unenforceable under any enactment or rule of law that provision or part thereof shall to that extent be deemed not to form part of the Agreement and the enforceability of the remainder of the Agreement or any part hereof shall not be affected.
16.3 Subject to any variation made pursuant to Condition 16.8 of the Agreement these Conditions shall apply as between the Parties in respect of the subject matter hereof to the exclusion of all other terms and conditions (including any terms and conditions that the Customer purports to apply).
16.4 The Agreement contains the entire understanding of the parties with respect of the subject matter hereof, supersedes all prior agreements and may only be modified or amended by the Parties by a written instrument signed by both parties.
16.5 Time Delay.tv shall not be liable to the Customer for loss arising from or in connection with any representations (except fraudulent), agreements, statements or undertakings made prior to the date of execution of the Agreement.
16.6 For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of the Agreement, the Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
16.7 No failure of either party to exercise, and no delay in exercising, any right or remedy in respect of any condition herein contained shall operate as a waiver of such right or remedy.
16.8 The Agreement may not be modified or amended except in Writing signed by an authorised signatory of each of the Parties.
16.9 The Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English Courts.