Synamedia Supply Standard Terms and Conditions

BY ACCEPTING THESE TERMS AND CONDITIONS THROUGH A STATEMENT OF WORK OR OTHER SIMILAR WRITTEN CONTRACT THAT INCORPORATES THESE TERMS AND CONDITIONS, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS AND CONDITIONS FOR THE SUPPLY OF SOLUTIONS BY SYNAMEDIA.

1. Introduction

These are the terms and conditions under which Synamedia is willing to supply Solutions and services (hereinafter referred to as “Solutions” (as further defined in Clause 2)) to the Customer. 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 Customer in concluding a Contract.

2. Interpretation

In these Terms and Conditions:

“Conditions” means these terms and conditions for the supply of Solutions by Synamedia to the Customer;

“Contract” means a contract for the sale and purchase of Solutions between Synamedia and the Customer;

“Customer” means a person, firm or company whose order for Solutions is accepted by Synamedia;

“Delivery” shall mean the transfer of physical possession of the Solutions which shall occur at the ex-works point;

“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;

“Solutions” means equipment, Software, prototypes, documentation or any other deliverable item together with services such as installation, integration and training (but excluding maintenance) that Synamedia has agreed to supply to the Customer; and

“Software” means any computer program or other software that Synamedia has agreed to supply to the Customer.

“Synamedia” means Synamedia Limited whose registered office is 51 Clivemont Road, Maidenhead, England, SL6 7BZ 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 includes the plural and vice versa and words denoting any gender include all genders.

3. Solutions

3.1   Synamedia will supply the Customer with Solutions in accordance with these Conditions.

3.2   Synamedia shall undertake maintenance of the Solutions as may be agreed in writing pursuant to the terms of a maintenance agreement with the Customer from time to time but not otherwise.

4. Delivery

4.1   Delivery terms for all Solutions shall be ex works (Incoterms 2020), Synamedia, UK, unless otherwise agreed in writing.

4.2  Synamedia shall use all reasonable endeavours to deliver Solutions by the date agreed.

5. Price and Payments

5.1   The Contract price for Solutions shall be Synamedia’s quoted list price unless otherwise agreed in writing.

5.2  The Contract price for Solutions supplied and any other charges shall be paid in full by the Customer within thirty (30) days of the invoice date as follows:

• 40% on the placing of order
• 40% on delivery
• 20% on acceptance.

To the fullest extent permissible by law, the Customer’s right of set-off is hereby excluded. Synamedia may present invoices in advance of contractual performance.

5.3  For a fixed price Contract, the price shall be payable in full in advance unless otherwise agreed in writing. Where payment by instalments is agreed, instalments shall be paid by bankers direct debit PROVIDED THAT on completion of the Contract any part of the Contract price outstanding shall be payable within the next thirty (30) days following completion.

5.4  For a Contract to be charged on a time and materials basis Synamedia shall invoice the Customer monthly in arrears unless otherwise agreed in writing.

5.5  All Synamedia’s charges and expenses are net of Value Added Tax and any other applicable duties, taxes or imposts (including but not limited to any export or import duties) all of which shall be for the Customer’s account.

5.6  If the Customer is overdue with any payment then, without prejudice to any other right or remedy available to Synamedia:

5.6.1 The Customer shall be liable to pay interest on the overdue amount at the annual rate of at a rate equal to five (5) percentage points above the then current Bank of England Base Rate, which interest shall accrue on a daily basis from the date payment became overdue until Synamedia has received payment of the overdue amount together with interest that has accrued;

5.6.2 Synamedia reserves the right to suspend contractual performance until the Customer has made such payment in full.

5.7   All Contract proposals and quotations remain valid for thirty (30) days after issue but may be withdrawn at any time before acceptance.

6. Variations

6.1   No variation to the scope or terms of the Contract shall take effect unless agreed in writing by Synamedia.

6.2  If the cost to Synamedia of performing the Contract increases as a result of any change to the law or any other reason beyond Synamedia’s reasonable control, such increase shall be added to the amount payable under the Contract. Synamedia shall notify the Customer of its reasonable estimate that the Customer shall be deemed to have accepted unless it notifies Synamedia in writing to the contrary within fourteen (14) days of such notification.

6.3  If, as a consequence of any breach of these Conditions by the Customer or the supply of incorrect or inadequate information from the Customer, the cost to Synamedia in performing the Contract is increased, Synamedia may charge extra to cover such additional costs and expenses.

6.4  Any extra work performed by Synamedia pursuant to Clause 6.3 shall be charged at its then prevailing commercial rates.

7. The Customer’s Responsibilities

7.1    The Customer shall promptly provide Synamedia with all information and assistance Synamedia reasonably requests from time to time to facilitate the proper and timely performance of the Contract.

7.2   The Customer warrants and undertakes that all information provided by it to Synamedia will be accurate in all material respects and that the Customer is entitled to provide the information to Synamedia for its use without recourse to any third party.

7.3   The Customer shall ensure that the Solutions are kept in a suitable environment and are operated in a proper manner by competent, trained staff in accordance with Synamedia’s instructions.

7.4   The Customer shall take all reasonable precautions to safeguard the health and safety of Synamedia staff and sub-contractors whilst working with Solutions or any other equipment which belongs to the Customer or is located at the Customer’s premises.

7.5   Synamedia shall exercise all reasonable skill and care in using equipment belonging to the Customer, whether at Synamedia premises or otherwise, although all such equipment shall remain at the Customer’s risk.

7.6   The Customer shall maintain records of the Solutions and copies of such records shall be readily available to Synamedia together with such additional information as Synamedia may reasonably require.

8. Consents

The Customer accepts that Synamedia’s performance under the Contract is conditional upon Synamedia obtaining any and all necessary licenses, authorisations, permits and other consents necessary under the laws of England or any other jurisdiction where contractual performance may be required. The Customer agrees to reimburse Synamedia for all costs and expenses incurred by Synamedia in obtaining all 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 under the Contract 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 sixty (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 Contract.

10. Acceptance Tests

10.1  Where Synamedia has agreed in writing that acceptance of any Solution shall be subject to an acceptance test, Synamedia shall give the Customer reasonable notice of the date of the test and the Customer shall make available all staff, materials and facilities which Synamedia reasonably requires for the performance of the test.

10.2 An acceptance test shall be regarded as having been completed on the day of successful completion of the test. The Customer may not reject any Solution that has successfully completed all acceptance tests in accordance with this Clause 10.

10.3 If the acceptance test is not successfully completed in accordance with Clause 10.2, Synamedia and the Customer shall mutually agree a date when the acceptance test shall be repeated and the provisions of Clause 10.2 shall apply to such repeat acceptance test mutatis mutandis.

11. Title

11.1   Notwithstanding the ex works (Incoterms 2020), Synamedia delivery terms, Solutions, other than Software, shall become the Customer’s property when all sums owed by the Customer to Synamedia under the Contract have been paid in full. Until then, Synamedia shall retain legal and beneficial ownership of the Solutions that the Customer shall hold as bailee and fiduciary for Synamedia.

11.2   If any sum owed by the Customer to Synamedia becomes overdue for payment or the Customer enters into liquidation, receivership or administration, Synamedia shall have the right, without prejudice to any other remedies, to enter, without prior notice, any premises owned or occupied by the Customer and to repossess and dispose of any Solutions or any other item owned by Synamedia.

12. Software

12.1   Software shall at all times remain the exclusive property of Synamedia.

12.2  On Delivery to the Customer Synamedia shall grant the Customer a non-exclusive, non-assignable, non-transferable licence, without the right to sub-license, to use the Software solely for the Customer’s business purposes.

12.3  The Customer may make one back-up copy of any Software and, upon request, shall advise Synamedia of the location of any Software and its back-up copy.

12.4 Subject to Clause 12.3 and to the fullest extent permitted by law, the Customer may not copy or correct any errors or otherwise modify Software or incorporate Software in any other software without Synamedia’s prior written consent.

12.5 The aforesaid licence is without limit of period but Synamedia may immediately terminate any licence to use Software by notice in writing to the Customer if the Customer breaches any term of the licence or the Contract under which the Software has been supplied, whereupon the Customer shall, at Synamedia’s direction, immediately return to Synamedia or destroy the Software and any back-up copy and certify in writing to Synamedia that this has been done.

13. Warranty

13.1   Subject always to Clause 14.3, the Solutions shall at the time of acceptance substantially conform to any specifications, functions or other levels of performance agreed in writing by Synamedia. Synamedia shall use all reasonable endeavours to remedy, free of charge, any material defect in any Solutions which manifests itself within twenty-eight (28) days from Delivery PROVIDED THAT:

13.1.1 the Customer notifies Synamedia 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 on the Customer’s behalf;

13.1.4 the defect is directly attributable to Synamedia’s use of defective material, workmanship or design;

13.1.5 the defect results in the Solution failing to comply materially with agreed specifications.

13.2  In so far as Solutions comprise or contain items not manufactured by Synamedia, the Customer shall only be entitled to such warranty or other benefit as Synamedia has received from the manufacturer and is able to pass on.

14. Liability

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 Synamedia shall not exceed £1 million or the amount of moneys payable by the Customer under the relevant Contract so breached or part thereof to which such claim pertains, whichever is the lower.

14.2 Notwithstanding anything else contained in these Conditions, to the fullest extent permitted by law, Synamedia shall not be liable to the Customer 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 signature of the Contract by the Customer, unless confirmed in writing by Synamedia. Written representations made by Synamedia prior to acceptance of the Contract shall only be binding if reconfirmed in writing immediately prior to its signature.

14.4 These Conditions set forth the full extent of Synamedia’s obligations and liabilities in respect of the supply of Solutions. In Particular, there are no terms as to satisfactory quality, fitness for a particular purpose or of any other kind whatsoever that are binding on Synamedia except as specifically stated in these Conditions. Any condition or other term in respect of the Solutions 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 Customer 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 under the Contract including without limitation those arising from the supply of Solutions shall vest in and be owned by Synamedia absolutely and the Customer shall acquire no right, title or interest therein save as specified in writing in the Contract.

16. Third Party Rights

16.1  Subject to Clause 14.1 and to Clause 16.2, Synamedia will indemnify the Customer and keep the Customer 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 a Solution infringes patent(s) in the country where the Solutions (equipment and Software) are installed (so long as such patent was published on or before the date of the Contract) or infringes any copyright, trade mark or other proprietary right  belonging to a third party and PROVIDED THAT:

16.1.1 the Customer promptly notifies Synamedia in writing of any allegations of infringement of which it has notice; and

16.1.2 the Customer does not make any admissions without Synamedia’s prior written consent; and

16.1.3 the Customer immediately allows Synamedia to conduct and/or settle all negotiations and litigation resulting from any such claim; and

16.1.4 the Customer provides Synamedia, at Synamedia’s request and expense, with all available information and assistance in defending such claim as Synamedia may reasonably require.

16.2 The indemnity given under Clause 16.1 will not apply for any actual or alleged third party claim brought in relation to the infringement of patents comprised in or relating to the MPEG, DVB or other proposed or published national or industry standard or specification. Furthermore, the indemnity given under Clause 16.1 will not apply to any infringement or claim arising out of the unauthorised use of any Solution or use of the Solution or any part thereof in combination with any equipment and/or computer programs or other materials not supplied or approved in writing by Synamedia for use with a Solution.

16.3 Solely in the context of Synamedia’s indemnity obligations set out above, if the Customer’s normal use or possession of a Solution is held by a court of competent jurisdiction to constitute an infringement of a third party’s Intellectual Property Rights or if Synamedia is advised by legal counsel that such use or possession is likely to constitute such an infringement then Synamedia shall promptly at its own expense and at its sole option;

16.3.1 procure for the Customer the right to continue using and possessing such Solution; or

16.3.2 modify or replace the Solution so as to avoid the infringement (in which event Synamedia shall compensate the Customer for the amount of any direct loss and/or damage sustained or incurred by the Customer during such modification or replacement); or

16.3.3 remove the Solution from its location and refund the price of the Solution to the Customer.

16.4 The foregoing states Synamedia’s entire liability to the Customer in respect of the infringement or alleged infringement of the Intellectual Property Rights of any third party.

17. Cancellation and Termination

17.1   The Customer may not cancel any Contract without Synamedia’s prior written consent.

17.2  Synamedia or the Customer may terminate the Contract immediately at any time by written notice to the other if:

17.2.1 the other commits a material breach of the Contract which it fails to remedy within thirty (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 a Contract (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 the Contract. 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 the Contract, but shall not apply to information which is already in or subsequently comes into the public domain through no fault of the recipient.

18.3 Following consultation with the Customer, Synamedia may advertise or publicly announce that it is undertaking work for the Customer pursuant to the Contract.

19. Non-Solicitation

The Customer may not, during the lifetime of the Contract 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 Customer’s breach of this Clause, the Customer agrees to pay Synamedia a sum equal to such employee’s annual salary (plus bonuses, if any).

20. Assignment

20.1 Except as may be expressly provided elsewhere in these Conditions, the Customer may not transfer, assign or sub-license the Contract or any or all of its rights under it without the prior written consent of Synamedia.

20.2 Synamedia or the Customer may assign the Contract on a transfer of its business or undertaking in which event the Contract shall automatically accrue for the benefit of the assigning party’s successor by operation of law.

21. Notices

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 Contract shall be governed by the laws of England and Wales, subject to Clause 22.2, the parties submit to the exclusive jurisdiction of the English Courts to resolve any disputes between them.

22.2 Any irreconcilable disagreement as to the appropriate amount of any alteration to be made under Clause 6.2 or whether an acceptance test has been successfully completed under Clause 10.2, or any of the Solutions is defective under Clause 13.1.6, shall be referred to an independent expert to be appointed by agreement between the parties or in the absence of an agreement by the President for the time being of the Institution of Electrical Engineers or an expert nominated by him. The decision of such independent expert shall (in the absence of manifest error) be final and binding on the parties and the costs of such expert shall be borne equally by them.

23. Legal Compliance

23.1  To the extent that the Contract is to be performed outside the UK, the Customer 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 Contract or on the enforceability of any of these Conditions.

23.2 The Customer shall satisfy itself that the importation, possession and use of Solutions in the country of destination is lawful in that country and shall not violate the rights of any third party and Synamedia shall not assume, and hereby disclaims, any obligation or liability in these regards.

24. General

24.1 A person who is not a party to a relevant Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of that Contract.

24.2 Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.  Each party confirms it is acting on its own behalf and not for the benefit of any other person.

24.3     This Contract including, the appendices or any other documents appended hereto or otherwise referred to herein, contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.

24.4  Each party acknowledges that, in entering into this Contract  it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this agreement or not) (“Representation”) other than as expressly set out in this Contract.

24.5  Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.