Terms & Conditions
INTERVIDEO LIMITED
Terms and Conditions of sale and/or provision of Media Products and Services.
The following Terms of Intervideo Limited (“Intervideo”) form the basis of the Contract between Intervideo and the Customer.
Interpretation:
In these Terms, unless the context otherwise requires, the following expressions have the following meanings:-
"Confidential Information" the terms of the Contract and all information obtained by one party from the other pursuant to the
Contract which is marked as confidential, or ought reasonably to be regarded as confidential.
“Contract” refers to each individual written Purchase Order or Verbal Order issued by the Customer.
“Customer” the person who, in the course of their business, has agreed to purchase Services and/or Media Products from Intervideo.
"Customer’s Materials” All films, Videotapes, Videocassettes, Audio tapes, Disks, Data Media, visual & audio images, information, software and any other materials provided by the Customer for use or to form part of the Services and/or Media Products Contract.
“Delivery Date” the date set out in the Confirmation or such other date agreed in writing by the parties.
“Delivery Address” the address for delivery set out in the Confirmation or such other address agreed in writing by the parties.
"Intellectual Property" all patents, registered or unregistered trade marks, trade and business names, logos and devices,
registered or unregistered designs, registered or unregistered copyrights, database rights and moral rights, rights in computer
software, domain names, rights in confidential information, applications for any of the above and the right to apply for them in
any part of the world and any other intellectual property rights (whether now subsisting or in the future created) both in the UK
and all other countries for the full period of those rights (including any extensions or renewals).
"Job Description" the scope, given by the Customer in writing, of the Services to be provided by Intervideo under the Contract.
"Media Products" those physical or electronic items produced as a result of Intervideo performing the Services including without
limitation videotapes, audiotapes, CDs and DVDs and including any instalment of the Media Products.
“Order” the written Purchase Order or Verbal Order placed by the Customer for the purchase of the Media Products or Services.
“Intervideo” Intervideo Limited (company number 02039027) whose registered office is at 87 Boundary Road, London, NW8 0RG.
"Price" the price charged by Intervideo to the Customer for the Services and/or Media Product(s) and handling the Customer's Materials as set out in the Contract.
"Services" the services to be provided by Intervideo under the Contract including, without limitation, dubbing, copying, editing,
mixing, mastering, standards converting, formatting, reformatting or any other services in relation to the Customer's Materials as described in
the Contract.
"Use" to copy, adapt, publish or otherwise exploit, where applicable, the Customer's Materials and/or the Media Product(s).
* The headings in these Terms are for ease of reference only and shall not affect the construction or interpretation of the Contract.
* Words importing the singular include the plural and vice versa and words importing any gender include every gender.
* Any reference to “person” shall include any partnership, firm, company, body corporate, corporation or organisation.
* Any reference to “writing” or “in writing” includes emails and facsimilies.
Application of Terms
* Subject to Clauses 2.2 and 13.3 these Terms shall apply to all Orders and Contracts to the exclusion of all other terms and conditions (including any terms and conditions which the Customer supplies or purports to apply).
* Intervideo reserves the right to amend these Terms from time to time and without notice. The Customer is required to accept that all Contracts are subject to the Terms & Conditions published on Intervideo’s website (www.intervideo.co.uk) at the time of placing issuing the Contract.
Basis of Sale
* In consideration of the payment by the Customer of the Price and the provision of the Customer's Materials to Intervideo, Intervideo agrees to sell the Media Products and provide the Services to the Customer in accordance with these Terms.
Price and Payment
* Intervideo may invoice the Customer for the Price before, on or immediately following delivery of the Media Products to the Customer. Time shall be of the essence in respect of the Customer’s payment.
* Unless otherwise stated on the Invoice, the Customer shall pay the Price within 30 days of Intervideo’s invoice.
* All sums due are exclusive of VAT or other applicable sales tax which shall be paid by the Customer at the appropriate rate.
* Where the Customer fails to make payment within 10 days from the due date then, without prejudice to any other right or remedy available to Intervideo, Intervideo shall be entitled to cancel the Contract and/or suspend any delivery of the Media Products or provision of the Services. Intervideo may also charge the Customer interest (both before and after any judgement is made) on the amount unpaid at the rate of 4% above Barclays Bank’s base rate in force from time to time until full payment is made.
* The Customer shall make all payments due without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
1. Services and Media Products
1.1 The quantity, quality and precise description of the Services and the Media Product(s) Intervideo is asked to provide (“Job Description”) should be clearly set out in the customer’s Purchase Order. Where a Purchase Order is placed without a clear Job Description, or contains wording/descriptions which may be ambiguous, Intervideo shall under no circumstances be held liable for providing the wrong Services and/or Media Products.
1.2 Intervideo shall not be liable for any failure to provide or delay in providing the Services and the Media Product(s) 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 Intervideo's ability to provide the Services and/or Media Product(s) including any breach of the Customer of its obligations under the Contract. Intervideo reserves the right to invoice the Customer for any additional expenses incurred by Intervideo as a result of such failure or delay.
1.3 During the course of performing the Services and supplying the Media Product(s) Intervideo 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 performance of the Services and/or the nature of the Media Product(s).
1.4 Intervideo reserves the right to refuse to provide the Services and/or Media Product(s) 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 Intervideo’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.
2. Risk and Property
2.1 The Customer acknowledges that Intervideo shall not be responsible for any loss of Customer's Materials supplied by the Customer and that the Customer must retain in its possession at least 1 (one) copy of the Customer's Materials supplied to Intervideo pursuant to the Contract.
2.2 Intervideo shall, at its sole discretion, on the request of the Customer retain and store copies of the Customer's Materials and the Media Product(s) at its premises or at a designated storage facility.
2.3 Intervideo and the Customer acknowledge that Intervideo shall at all times hold the Customer's Materials as the Customer's fiduciary agent and bailee.
2.4 Risk of damage to or loss of the Customer's Materials shall not pass to Intervideo although Intervideo shall take reasonable care and precautions in order to ensure that the Customer's Materials 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 Intervideo's premises (or it’s designated storage facility) to a maximum value of the cost of providing replacement blank videotape/ other media upon which Customer's Materials have been recorded; and (c) at all times kept within the control of Intervideo (or by management of it’s designated storage facility).
2.5 If requested Intervideo 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.
2.6 Risk of damage to or loss of the Services and/or Media Product(s) shall pass to the Customer upon signature of collection from Intervideo’s premises. To clarify, the Services and/or Media Products are deemed to be no longer the responsibility of Intervideo at the point a driver (ordered by the Customer or Intervideo) signs an Intervideo Despatch Note confirming collection of the Services and /or Media Product(s) on behalf the Customer.
2.7 Notwithstanding delivery and the passing of risk in the Services and/or Media Product(s) set out in [2.6] the property in the Services and/or Media Product(s) shall not pass to the Customer until Intervideo has received in cash or cleared funds payment in full of the Price of the Services and/or Media Product(s) and all other Services and/or Media Product(s) agreed to be sold or supplied by Intervideo to the Customer for which payment is then due.
2.8 Until such time as the property in the Services and/or Media Product(s) passes to the Customer, the Customer shall hold the Services and/or Media Product(s) as Intervideo's fiduciary agent and bailee and shall keep the Services and/or Media Product(s) separate from those of the Customer and third parties and properly stored, protected and insured and identified as Intervideo's property.
2.9 Until such time as the property in the Services and/or Media Product(s) passes to the customer (and provided the Services and/or Media Product(s) are still in existence and have not been resold) Intervideo shall be entitled at any time to require the Customer to deliver
up the Services and/or Media Product(s) to Intervideo and, if the Customer fails to do so forthwith upon demand, the Customer grants Intervideo a licence to enter upon any premises of the Customer or any third party where the Services and/or Media Product(s) are stored to repossess the Services and/or Media Product(s).
2.10 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Servicers and/or Media Product(s) which remain the property of Intervideo, but if the Customer does so, all monies owing by the Customer to Intervideo shall (without prejudice to any other right or remedy of Intervideo) forthwith become due and payable.
3. Delivery
3.1 Intervideo shall use all reasonable endeavours to deliver the Services and/or Media Products to the Customer at the Delivery Address on or before the Delivery Date. For the avoidance of doubt the time for delivery shall not be of the essence and Intervideo shall have no liability to the Customer if it fails to meet any Delivery Date.
3.2 If the Services and/or Media Product(s) are to be delivered in instalments, the Purchase Order will be treated as a single Contract and not severable.
3.3 The quantity of any consignment of Services and/or Media Product(s) as recorded by Intervideo upon despatch from Intervideo'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.
3.4 Intervideo shall not be liable for any non-delivery of Media Product(s) or non-performance of the Services (even if caused by Intervideo's negligence) unless notice in writing is given to Intervideo 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.
3.5 Any liability of Intervideo for non-delivery of the Services and/or Media Product(s) shall be limited to replacing the Services and/or Media Product(s) within a reasonable time or issuing a credit note for the Price at Intervideo's discretion.
4. Intellectual Property Rights
4.1 Intervideo 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 Clause [7.2.] Intervideo shall not during or at any time after the completion, expiry or termination of the Contract in any way question or dispute the ownership by the Customer or the Owner of any such Intellectual Property.
4.2 The Customer hereby grants a non-exclusive and non-transferable licence to Intervideo to Use the Intellectual Property subsisting in the Customer's Materials in order to perform the Services and provide the Services and/or Media Product(s).
4.3 When Intervideo has received cash or cleared funds for payment of the Price by the Customer, Intervideo acknowledges that the Intellectual Property in and to the Services and/or 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.
4.4 Until payment of the Price, the Customer and/or its nominees shall be entitled to an evocable, non-exclusive, non-transferable licence to Use the Intellectual Property created by Intervideo relating to the Services and/or Media Product(s) supplied under the Contract.
4.5 Subject only to the express terms of the Contract, Intervideo 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 Intervideo clients and/or potential clients and the Customer shall place no restriction whatsoever on such right. The Customer permits Intervideo to promote and advertise itself through the use of examples of the Services and/or Media Product(s) in promotional or other materials.
5. Warranties and Liability
5.1 Subject to Clauses 5.2 and 5.3, the Customer acknowledges and accepts that Intervideo 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 Contract.
5.2 Subject to Clauses 5.5 and 5.6 and the limitations on Intervideo's liability in Clause 6, Intervideo warrants and undertakes to the Customer that the Services and/or Media Product(s) excluding hardware will:-
(a) be of satisfactory quality and fit for any particular purpose for which the Services and/or Media Product(s) are being supplied if the Customer has made known such purpose to Intervideo in writing and Intervideo has confirmed in writing that it is reasonable for the Customer to use the Services and/or Media Product(s) for such a purpose; (b) for a period of 3 months from the Delivery Date, be free from material defects in design, material and workmanship; (c) materially correspond with any relevant description in any Job Description agreed by Intervideo insofar as this is within Intervideo's control; and (d) comply with all statutory requirements and regulations relevant to the Services and/or Media Product(s).
5.3 Subject to Clause 5.5 and 5.6 and the limitations on Intervideo's liability in Clause 6, Intervideo 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.
5.4 If any Media Product(s) and/or Services are not supplied or performed in accordance with Clauses 5.2 and 5.3, OSL shall, subject to Clauses 9.5 and 9.6 and at its election, either repair the Media Product(s) and/or supply replacement Media Product(s) as soon as reasonably practical.
5.5 Intervideo shall not be liable for a breach of any of the warranties in Clauses 5.2 and 5.3 unless:-
(a) the Customer gives written notice of a defect to Intervideo within 14 (fourteen) days of the time when the Customer discovers or ought to have discovered the defect; and (b) Intervideo is given a reasonable opportunity after receiving such notice to examine the Services and/or Media Product(s) and the Customer (if asked to do so by Intervideo) returns such Services and/or Media Product(s) to Intervideo's place of business at the Customer's cost for the examination to take place there.
5.6 Intervideo shall not be liable for a breach of any of the warranties in Clauses 5.2 and 5.3 if a defect arises as a result of:- (a) any modifications of the Services and/or Media Product(s) made by or, any act or omission on the part of the Customer or its subcontractors, agents, officers or employees or any person acting on behalf of the Customer - other than an employee of Intervideo; (b) a failure by the Customer or its sub-contractors, agents, officers or employees or any person acting on behalf of the Customer to use the Services and/or 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 person acting on behalf of the Customer; or (d) an event of force majeure, as defined in Clause 13.
5.7 Where any defect in the Services and/or Media Product(s) is due to the default of the Customer or its sub-contractors, agents, officers or employees or person acting on behalf of the Customer under Clause 5.6, Intervideo may charge the Customer for the repair or replacement of the Services and/or 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 Services and/or Media Product(s).
6. Limitation of Liability
6.1 Nothing in the Contract shall operate to exclude or limit Intervideo's liability for:-
(a) death or personal injury caused by the negligence of Intervideo, 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.
6.2 Subject to Clause 6.1:-
(a) Intervideo'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 Contract shall be limited to the Price;
and
(b) Intervideo shall not be liable to the Customer for any special, indirect or consequential loss or damage for loss of profit, loss of business, loss of anticipated savings, depletion of goodwill or loss of management time which arise out of or in connection with the Contract.
6.3 Intervideo's maximum liability for physical damage to the Customer's Materials resulting from Intervideo's negligence shall be limited to the cost of providing a replacement copy Customer's Materials, a copy of which, in accordance with [2.1] will be held by the Customer.
7. Customer's Warranties, Undertakings and Indemnities
7.1 The Customer acknowledges that Intervideo does not operate or exercise final editorial control over, and accepts no responsibility for the content of the Customer's Materials provided to Intervideo by the Customer and as incorporated into the Media Product(s).
7.2 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 by Intervideo to provide the Services and/or supply the Media Product(s) in accordance with the Job Specification; and
(b) the Use of the Customer's Materials by Intervideo to provide the Services and/or supply the Media Product(s) in accordance with the Job Specification will not infringe any third party Intellectual Property.
7.3 In the event of an allegation(s) of a breach of Clause 7.2, or if Intervideo reasonably suspects such a breach or infringement has occurred, Intervideo 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.
7.4 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 Clause 7.2.
7.5 The Customer shall indemnify Intervideo, 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 Intervideo and its sub-contractors, officers, agents, employees or otherwise relating to a breach of Clause 7.2.
8. Term and Termination
8.1 Without prejudice to any other remedies available, either party shall be entitled to terminate the Contract with immediate effect by giving written notice of termination to the other if:
(a) the other commits a material breach of the Contract 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;
or
(b) 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 threaten to cease or cease to carry on business.
8.2 Without prejudice to any other remedies available, Intervideo may terminate the Contract with immediate effect if:-
(a) notwithstanding Clause 8.1(a) the Customer fails to pay any sums due by it to Intervideo within 10 days after the due date;
(b) the Customer infringes the Intellectual Property of Intervideo or any third party.
8.3 Clauses 2, 6 and 10 shall survive termination of the Contract howsoever caused.
8.4 Any termination of the Contract shall be without prejudice to any other rights or remedies either party may be entitled to hereunder or at law.
9. Force Majeure
9.1 Neither party shall be liable to the other for any delay in performing or any failure to perform 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).
10. Confidentiality
10.1 Each party shall keep confidential any and all Confidential Information. Each party shall not use the Confidential Information for any purpose other than to perform its obligations under the Contract. Each party shall ensure that its sub-contractors, agents, officers and employees comply with the provisions of this Clause 10.
10.2 The obligations on the parties set out in Clause 10.1 shall not apply to any information which:-
(a) is publicly available or becomes publicly available through no act or omission or the disclosing party; or
(b) is required to be disclosed by law or by order of a court of competent jurisdiction.
11. Notices
11.1 Any notice or other document to be given under the Contract shall be in writing and delivered by hand or sent by first class pre-paid letter, e-mail or facsimile transmission (to the address or e-mail or facsimile number of the other party set out in the Confirmation (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, if by first class post, 48 hours after posting and if sent by e-mail or facsimile on transmission.
12. Assignment and Sub-Licensing
12.1 Intervideo shall be entitled to sub-contract, transfer or assign any or all of its rights and/or obligations under the Contract without restriction.
12.2 The benefits and obligations conferred by the Contract 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.
13. General
13.1 If any provision in the Contract 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 Contract and the enforceability of the remainder of the Contract or any part thereof shall not be affected.
13.2 The Contract contains the entire understanding of the parties with respect of the subject matter hereof and supersedes all prior agreements. Each party acknowledges that, in entering into the Contract, it has not relied on and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Contract.
13.3 No variations to the Contract or these Terms will be effective unless agreed in writing and signed by a duly authorised representative of each party.
13.4 For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of the Contract, the Contract 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.
13.5 The parties will attempt in good faith to resolve any dispute or claim arising out of or relating to any Contract promptly through negotiation. If the matter is not resolved through negotiation the parties will attempt in good faith to resolve the dispute or claim through an alternative dispute resolution procedure as recommended to the parties by CEDR or another recognised mediation provider. The commencement of mediation will not prevent the parties commencing Court proceedings.
13.6 No failure of either party to exercise, and no delay in exercising, any right or remedy provided under the Contract or by law shall operate as a waiver of such right or remedy.
13.7 Intervideo and the Customer are each independent contractors with respect to each other and nothing in the Contract shall create any association, partnership or joint venture relationship between them.
13.8 The Contract shall be governed by English law and shall be subject to the exclusive jurisdiction of the English Courts.
