INTERPRETATION
1.1 In this document, the following terms shall have the following meanings: ‘Scene2′ means Scene2 Limited, a company registered in England & Wales, under number 03734949 of 26 Horsecroft Road, Harlow, Essex, CM19 5BH; the ‘Goods’ means those goods (if any) which Scene2 is to supply as set out in the Order; ‘Business Day’ means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business; the ‘Client’ or ‘you’ means the person or firm who purchases the Goods and/or Services (as applicable) from Scene 2; ‘Contract’ means the contract between Scene 2 and the Client for the sale and purchase of the Goods and/or Services (as applicable) in accordance with these Conditions; ‘Conditions’ means the terms and conditions set out in this document as amended from time to time in accordance with Condition 17; ‘Order’ means the Client’s order for the Goods and/or Services (as applicable) as set out in Scene 2’s invoice addressed to the Client; the ‘Services’ means those services (if any) to be performed by Scene2 as set out in the Order; the ‘Scope’ means the specification and scope of works describing the Goods and Services (as applicable) to be provided by Scene2, as set out in the Order; ‘Fees’ means the total fees payable by Client to Scene2 as set out in the Order; and ‘Site’ means the location for delivery of Goods and/or performance of the Services as agreed between Scene2 and the Client.
1.2 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re -enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or reenacted.
1.3 Any phrase introduced by the terms ‘including’, ‘include’, ‘in particular’ or any similar expression shall be construed as il lustrative and shall not limit the sense of the words preceding those terms.
1.4 A reference to ‘writing’ or ‘written’ includes emails.
BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 Quotations given by Scene2, its employees and agents are for guidance only and do not and shall not be deemed to constitute an offer or commitment of any kind on the part of Scene2 to supply the Goods and provide the Services (as applicable). A quotation shall only be valid for a period of 30 Business Days.
2.3 The Order constitutes an offer by the client to purchase the Goods and/or Services (as applicable) in accordance with these Conditions. The Client is responsible for ensuring that the terms of the Order and any applicable Scope are complete and accurate.
2.4 The Order must be in writing by official order and will always be subject to these Conditions.
2.5 No Order submitted by the Client shall be deemed to be accepted by Scene2 unless confirmed in writing by Scene2, at which point the Contract shall come into existence.
2.6 No Order which has been accepted by Scene2 may be cancelled by the Client except with the agreement in writing of Scene2 and on terms that the Client shall pay to and/or indemnify
Scene2 in full against all losses (including loss of profit), costs (including the cost of all labour and materials used) damages, charges and expenses incurred by Scene2 as a result of cancellation.
2.7 No change may be made to the Order once it has been accepted unless such change is agreed in writing by Scene 2 and the Client.
FEES/TERMS OF PAYMENT
3.1 In consideration for the supply of the Goods and the provision of the Services (as applicable) the Client shall pay the Fees. The amounts, method and timing of payment of the Fees shall be as set out in the Order.
3.2 The Fees shall cover the supply of the Goods and/or Services (as applicable) in accordance with the Scope and shall be inclus ive of all incidental expenses incurred by Scene2 unless stated otherwise in the Invoice. If the Client requests Scene2 to provide additional services or materials Scene2 reserves the right to charge separately for any such services and materials at its then current rates. Any such additional charges shall be due and payable when they have been calculated by Scene2 and invoiced to the Client.
3.3 Payment (unless otherwise agreed by the parties) shall be due 50% immediately on acceptance by Scene 2 of the Order and the r emaining 50% at least 1 Business Day prior to the associated delivery or collection by the client. Time for payment is of the essence.
3.4 All prices are exclusive of Value Added Tax and other taxes, duties or levies which shall be paid additionally by the Client at the then prevailing rate.
3.5 Without prejudice to Scene2’s other rights and remedies, Scene2 may charge interest on any sums outstanding at their due date for payment on a day to day basis at the rate of 8% over LIBOR from time to time. Such interest shall accrue until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
3.6 The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
Scene 2 may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Cli ent against any amount payable by Scene 2 to the Client.
3.7 Scene2 shall not be under any obligation to commence manufacture of the goods or to provide any services until the upfront 50% referred to in Condition 3.3 has been received.
DELIVERY ETC.
4.1 Delivery of the Goods is excluded from the Services unless specifically included in the Order.
4.2 Scene2 shall deliver the Goods to the Site and subject to and conditional upon the Client complying with its obligations under Condition 6 shall perform the Services (if applicable) at
the Site.
4.3 Scene2 shall use its reasonable endeavours to deliver the Goods and perform the Services (if applicable) upon the dates agreed with the Client.
4.4 The Client shall accept delivery of the Goods upon notification by Scene2 that the Goods are ready for delivery to the Site pursuant to the provisions of the Contract. If the Client fails
so to accept delivery for any reason whatsoever, Scene2 shall have the right at the Client’s expense and risk to transport th e Goods to a commercial warehouse and store the same.
Delivery is completed on the completion of unloading of the Goods at the Site.
4.5 Scene2 shall ensure that each delivery of Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods, special storage instructions
(if any) and, if the Goods are being delivered by instalments, the outstanding balance of the Goods remaining to be delivered.
4.6 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Scene2 shall not be liabl e for any delay in delivery of the Goods that is caused by
events or circumstances beyond Scene2’s reasonable control or the Client’s failure to provide Scene2 with adequate delivery instructions or any other instructions that are relevant to
the supply of the Goods.
4.7 If 2 Business Days after the day on which Scene 2 notified the Client that the Goods were ready for delivery, the Client has not accepted delivery of them, Scene2 may resell or otherwise
dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Client for any shortfall below the price of the Goods.
THE SERVICES
5.1 The provisions of this Condition 5 shall only apply in circumstances where Scene2 has contracted with the Client to provide Services. For the avoidance of doubt, where provision is made in these Conditions relating to Services, then such provisions shall not apply unless Scene2 has contracted to provide S ervices.
5.2 As and when required by Scene2 the Client will provide those items, facilities and equipment notified by Scene2 as being required to perform the Services.
5.3 Unimpeded access to and possession of the Site shall be granted by the Client to Scene2 and its agents and contractors for so long as Scene2 requires in order to provide the Services. The Client shall provide or procure access to the Site for all plant and equipment deemed necessary by Scene2 for the performance of its obligations under the Contract. Prior to the dates scheduled for the provision of the Services the Client shall in co-operation with Scene2 obtain all necessary consents, licences and approvals required under any laws, regulations or bye-laws of any local or other authority which shall be applicable to the Site and access thereto. Scene2 shall, at the Client’s expense, be entitled to use such supplies of electricity
and other utilities as may be required by Scene2 for the performance of its obligations under the Contract.
5.4 The Client shall at its sole cost and expense and at the time designated by Scene2 (i) prepare the Site in accordance with the Scope or as may otherwise be required by Scene2 to
enable it to carry out the Services; (ii) provide all necessary utilities at the points specified by Scene2; (iii) provide all necessary openings and suitable access to the work area to facilitate prompt delivery of the Goods and performance of the Services by Scene2; (iv) provide and maintain such permits and licences as may be required to commence and complete the Services by Scene2 and/or companies nominated by Scene2; (v) procure the grant of all necessary visas or entry clearances or other like permissions for the personnel of Scene2 and/or itscontractors. Scene2willuseitsreasonableendeavourstoprovideatleast48hoursbeforethedatescheduledforthedeliveryoftheGoodstheClientwithallnecessaryplansfor installation and all documentation about the necessary utilities, openings and all other information necessary for the Client to prepare the Site.
5.5 The Client acknowledges that there are circumstances where it will not be appropriate for a stand to be installed or taken down, as set out in more detail in the Risk Assessment and Method Statement (“RAMS”) for the project, and that the decision as to whether to install or take down a stand is entirely at the discretion of Scene2 acting in good faith and t aking into account all the circumstances, including risk, weather and environmental factors. The Client also recognises that additional costs may be incurred if an install or takedown has to be deferred or cancelled due to circumstances referred to in the RAMS and beyond the control of Scene2, and that all such costs will be borne by the Client.
5.6 In the event that the Services to be provided by Scene2 or any part thereof are delayed due to the fault of the Client or its employees, agents or contractors, any and all additional costs or expenses incurred by Scene2 arising out of or resulting from such delays (including, but not limited to, additional payments for labour and handling expenses and transportation, warehousing, plant hire, insurance and other like costs) shall be chargeable to and paid by the Client to Scene2 upon demand.
GOODS ONLY
6.1 In the event that the Order relates solely or in part to the supply of Goods, the Client acknowledges and agrees that it shal l take full responsibility for the installation, take down and removal of the Goods at the Site. The Client shall indemnify and keep indemnified Scene2 against all losses, damages, costs and expenses awarded against or incurre d by Scene2 in settlement of all claims for personal injury, loss or damage to property whatsoever or howsoever caused brought against Scene2 by third parties or otherwise arising directly or indirectly from the installation, take down and removal of the Goods by the Client. If notwithstanding the fact that the Client arranges for the take down of the Goods at the Site the Goods are to be returned to Scene2 the Client agrees to bear the cost of the deliveries of the Goods to Scene2’s premises at the price stipulated therefor in the Order.
USE
7.1 The Client shall provide Scene2 promptly with all information, answers to queries, decisions and approvals which may be reasonably required by Scene2 for the performance of Scene2’s responsibilities to carry out the Order and the Client is responsible for ensuring that such information and answers are accurate and complete in all respects and shall indemnify and keep indemnified Scene2 against all losses, damages, costs and liabilities arising from any error or omission.
7.2 The Goods shall be under the control of the Client at the Site, and the Client shall ensure that the Goods are used safely and without risk to health and are not used for any purpose for which the Goods are not designed or reasonably suitable.
TITLE AND RISK
8.1 The risk in the Goods shall pass to the Client on completion of delivery.
8.2 Title to the Goods purchased hereunder will pass to the Client only when Scene2 has received in cash or cleared funds payment in full of the Fees (together with any interest, value
added tax and any other additional charges, if applicable, payable in respect thereof) and of all other sums owing by the Client to Scene2 on any account whatsoever.
8.3 Until title to the Goods has passed to the Client, the Client shall:
(a) store the Goods separately from all other goods held by the Client so that they remain readily identifiable as Scene2’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Scene2 immediately if the Client becomes subject to any of the events listed in Condition 13.1; and
(e) give Scene2 such information relating to the Goods as Scene2 may require from time to time.
8.4 Until such time as title to the Goods has passed to the Client, Scene2 shall be entitled at the Client’s expense to require the Client to return the Goods to Scene2. If the Client fails to
do so promptly, Scene2 may at any time enter upon the Site or any other premises where the Goods are located to remove all Goods which remain Scene2’s property. Neither the reservation of that right nor the time of passage of title will affect the Client’s obligation to make timely payment as required by these Conditions. The Client bears the exclusive risk of loss or damage to the Goods at all times after delivery (as defined in Condition 4.3).
WARRANTIES
9.1 Scene2 warrants that the Services (if any) will be performed by competent persons exercising skills appropriate to their function.
9.2 Scene2 warrants that on delivery and for a period of 6 months from the date of delivery (the ‘Warranty Period’), the Goods (if any) shall:
(a) conform with their description in the Scope;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by Scene2.
9.3 Subject to Condition 9.4, if:
(a) the Client gives notice in writing to Scene 2 during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Condition 9.2;
(b) Scene2 is given a reasonable opportunity of examining such Goods; and
(c) the Client (if asked to do so by Scene2) returns such Goods to Scene2’s place of business at the Client’s cost,
Scene2 shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
9.4 Scene2 shall not be liable for the Goods’ failure to comply with the warranty set out in Condition 9.2 in any of the following events:
(a) the Client makes any further use of such Goods after giving notice in accordance with Condition 9.3;
(b) the defect arises because the Client failed to follow Scene2’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods;
(c) the defect arises as a result of Scene2 following any drawing, design or element of the Scope supplied by the Client;
(d) the Client alters or repairs such Goods without the written consent of Scene2;
(e) the defect arises as a result of fair wear and tear, willful damage, negligence or abnormal storage or working conditions; or
(f) the Goods differ from the Scope as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
9.5 Except as provided in this Condition 9, Scene2 shall have no liability to the Client in respect of the Goods’ failure to comply with the warranty set out in Condition 9.2.
9.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
9.7 These Conditions shall apply to any repaired or replacement Goods supplied by Scene2.
9.8 If a problem is found upon investigation not to be Scene2’s responsibility under the provisions of Conditions 9.2 and 9.3, Scene2 may charge the Client forthwith for all reasonable costs and expenses incurred by Scene2 in the course of or in consequence of such investigation.
INTELLECTUAL PROPERTY RIGHTS
10.1 The Client acknowledges that all copyright, patents, designs, trade secrets, trademarks and other intellectual and proprietary rights which now or hereafter may exist in the Goods are owned by and remain the exclusive valuable property of Scene2. The Client agrees that it will not utilise the Goods except as expressly authorised in the Order and Scope and that the licence hereby granted by Scene2 is personal to the Client and may not be assigned or sub-licensed.
LIMITATION OF LIABILITY
11.1 The Client acknowledges that Scene2’s obligations and liabilities in respect of the Goods and Services (if applicable) are exhaustively defined in these Conditions.
11.2 Nothing in these Conditions shall limit or exclude Scene2’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sales of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for Scene2 to exclude or restrict liability.
11.3 Subject to Condition 11.2:
(a) the Client agrees that Scene2 shall not be liable for and shall indemnify Scene2 against any indirect or consequential loss, damage, cost or expense of any kind whatsoever and howsoever caused arising under or in connection with the Contract and whether arising under contract, tort (including negligence) or otherwise, including (without limitation) loss of profits or of contracts, loss of operation time and loss of goodwill, even if Scene2 has been advised of their possibility. Scene2 shall not be liable for the usefulness of the Goods or their effects on the Client’s other activities and business; and
(b) Scene2’s total liability (whether in contract, tort, including negligence, or otherwise) under or in connection with the Order or based on any claim or aggregate or series of claims shall not exceed the sum of £100,000 in aggregate, or the value of the Fees, whichever is the lower.
11.4 The Client shall indemnify Scene2 against all losses, damages, costs and expenses awarded against or incurred by Scene2 in connection with or paid or agreed to be paid by Scene2 in settlement of all claims for personal injury, loss or damage to property brought against Scene2 by third parties arising directly or indirectly from the Client’s possession operation or use of the Goods unless such injury loss or damage is solely attributable to the negligence of Scene2, its employees or agents.
11.5 The Client acknowledges and agrees that the allocation of risk contained in this Condition 11 is reflected in the Fees payable by the Client and is reasonable in all the circumstan ces, having regard to all relevant factors including the ability of the Client to rely on its own insurance arrangements and other resources to bear or recover any loss or damage incurred resulting from the use of the Goods and the Services (as applicable) provided by Scene2.
FORCE MAJEURE
12.1 In the event of either party being delayed or prevented from performing its obligations (other than a payment obligation) by events or circumstances outside its reasonable control such delay or non-performance shall not constitute a breach of the Contract or its Conditions and the time for performance of the affected obligation shall be extended by such period as is reasonable.
TERMINATION
13.1 Without limiting its rights or remedies, Scene2 may terminate this Contract with immediate effect by giving written notice to the Client if:
(a) the Client commits a material breach of any term of the Contract and (if such breach is capable of remedy) fails to remedy that breach within 3 Business Days of the Client being
notified in writing to do so;
(b) the Client takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring) being wound up (whether voluntarily or by order of the court, unless for the purposes of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the Client suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Client’s financial position deteriorates to such an extent that in Scene2’s opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
13.2 Without limiting its other rights or remedies, Scene2 may suspend provision of the Goods under the Contract or any other contract between the Client and Scene2 if the Client becomes subject to any of the events listed in Conditions 13.1(a) to (d), or Scene2 reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any vamount due under this Contract on the due date for payment.
13.3 Without limiting its other rights or remedies, Scene2 may terminate the Contract with immediate effect by giving written noti ce to the Client if the Client fails to pay any amount due under the Contract on the due date for payment.
13.4 On termination of the Contract for any reason, the Client shall immediately pay to Scene2 all of Scene2’s outstanding unpaid invoices and interest.
13.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
13.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain full force and effect.
CONFIDENTIALITY AND PROMOTIONS
14.1 Each party acknowledges that in connection with this Contract it may receive certain confidential or proprietary technical and business information and materials of the other party, (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under t his Contract except as may be required by a court of competent jurisdiction, regulation or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
14.2 Scene2 retains the right to reproduce, publish and display the Goods or Services produced pursuant to the Contract in Scene2’ s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with the production/provision of the Goods and Services in connection with such uses. Scene2 may describe its role in relation to the provision of Goods and Services under the Contract on its website and in other promotional materials, and include a link to the Client’s website
NOTICE
15.1 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 part y giving the notice.
WAIVER
16.1 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
SEVERABILITY
17.1 If any provision of these Conditions is held by any competent authority to be invalid, illegal or unenforceable in whole or in part, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provisions shall be deemed deleted. Any modification to, or deletion of, a provision or part provision under this Condition 16.1 shall not affect the validity and enforceability of the rest of t he Contract.
ENTIRE AGREEMENT
18.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and arrangements between them, either written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligentmisstatementbasedonanystatementinthisagreement ExceptasotherwisepermittedbytheConditions,nochangetoitstermsshallbeeffectiveunlessitisinwritingand signed by persons authorised on behalf of both parties.
ASSIGNMENT
19.1 The Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the express prior written consent of Scene2.
THIRD PARTY RIGHTS
GOVERNING LAW AND JURISDICTION
21.1 This Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter of formation.