1. Application of Terms
- BDR’s acceptance of the Buyer’s order for the sale of Goods or the supply of Services is subject to the terms and conditions set out herein, to the exclusion of all other terms and conditions.
- BDR shall not accept any alteration to its terms and conditions unless the same is authorised in writing and signed by a director or the company secretary of BDR. Any terms and conditions in the Buyer’s purchase order, confirmation of order, specification or other document which is not otherwise agreed and is inconsistent with BDR’s terms and conditions shall not form part of BDR’s acceptance of the Buyer’s order.
- Any variations to these conditions and any representations about Goods or Services to be supplied by BDR shall have no effect unless expressly agreed in writing. Each order or acceptance of a quotation for Goods or Services by the Buyer from BDR shall be deemed to be an offer by the Buyer to buy Goods or Services subject to these terms and conditions.
- The quantity and description of any Goods ordered by the Buyer or the extent of the Services required to be supplied to the Buyer shall be as set out in BDR’s quotation or acknowledgement of order.
- No order placed by the Buyer shall be deemed to be accepted by BDR until a written acknowledgement of order is issued by BDR or (if earlier) BDR delivers the Goods or Services to the Buyer.
- Unless otherwise agreed in writing by BDR, delivery of the Goods and supply of the Services shall take place at BDR’s place of business.
- Any dates specified by BDR for delivery of the Goods and Services are intended to be an estimate and time for delivery shall not be made of the essence by notice.
- If for any reason the Buyer fails to accept delivery of any of the Goods whe they are ready for delivery, or BDR is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
- risk in the Goods shall pass to the Buyer;
- the Goods shall be deemed to have been delivered; and
- BDR may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
- The date for payment of BDR by the Buyer shall be thirty (30) days from the date of invoice. The Buyer shall make all payments due under the Contract in full without any deduction whether by set-off, counterclaim, discount, abatement or otherwise. All payments payable to BDR under the Contract shall become due immediately upon its termination despite any other provision.
- The time of payment of the price shall be of the essence of the Contract.
- If Buyer shall default in payment of the purchase price on the due date, the Buyer shall pay interest to BDR at 4% above the base lending rate from time to time of the Bank of England on a day-to-day basis on the price or any part thereof outstanding in respect of the period from the date when payment is due to the date when BDR receives payment of the price in cleared funds.
5. Risk and Title
- Non-digital Goods
- Upon delivery Goods shall be at the Buyer’s risk.
- Notwithstanding risk in the Goods passing in accordance with condition 5. title in the Goods (including title to any intellectual property rights arising in such Goods) shall not pass to the Buyer until whichever shall be the first to occur of the following:
- payment being received by BDR for the Goods and no other amounts then being outstanding from the Buyer to BDR in respect of other Goods supplied by BDR.
- BDR waiving its rights under this condition 5 in respect of specified Goods whereupon title to such Goods shall forthwith vest in Buyer.
- Until title to the Goods passes, the Buyer shall:
- hold the Goods as fiduciary agent and bailee for BDR.
- keep the Goods separate and distinct from all other property of the Buyer and of third parties and in good condition and be stored in such a way as to be clearly identifiable as belonging to BDR.
- not destroy, deface or obscure and identifying mark or packaging on or relating to the Goods; and
- maintain the Goods in satisfactory condition and keep them insured on BDR’s behalf for their full price against all risks to the reasonable satisfaction of BDR.
- The Buyer’s right to possession of the Goods shall terminate immediately if it enters into or has entered against it any form of insolvency or (being an individual) bankruptcy proceedings (as the case may be), or suffers or allows any execution to be levied on its property or is unable to pay its debts as they fall due within the meaning of s.123 Insolvency Act 1986 or if the Buyer ceases to trade or if the Buyer encumbers or in any way charges any of the Goods.
- BDR shall at any time be entitled to appropriate any payment made by the Buyer in respect of any Goods or Services in settlement of such invoices or accounts in respect of any Goods or Services delivered by BDR as BDR may in its absolute discretion think fit notwithstanding any purported appropriation to the contrary by the Buyer
- Digital Goods
- Upon delivery, approval and launch of digital Goods, further risks against the product will be taken on by the Buyer
- Title to any intellectual property rights arising in such Goods shall remain the property of BDR for the lifetime of the product unless one of the following occur:
- The buyer and BDR agree, prior to the commissioning of the product, the ownership of the IP after launch
- BDR waives its rights under this condition 5 in respect of specified Goods whereupon title to such Goods shall forthwith vest in Buyer.
- The Buyer and BDR agree a fee to transfer IP rights from the latter to the former party.
- The licensing of any Goods by BDR to the Buyer does not grant the Buyer any right to copy or sell the IP of said Goods, only to use it for the purpose agreed between the parties at the time of purchase
- BDR reserve the right to revoke permission to use licensed products should the Buyer break any agreed terms and conditions of its use or fail to make an agreed payment schedule for said license.
- BDR warrants that the Goods when supplied will be of satisfactory quality, and reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to BDR in writing and BDR has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of BDR. Any other condition or warranty as to the quality of the Goods under statute or otherwise is hereby excluded.
- If any of the Goods do not conform with the warranties in condition 6.1 BDR shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if BDR so requests, the Buyer shall return the Goods or the part of such Goods which is defective to BDR. BDR shall have no further liability for a breach of the warranties in condition 6.2 in respect of such Goods.
7. Limitation of Liability
- Subject to condition 3,and condition 6, the following provisions set out the entire financial liability of BDR (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
- any breach of these conditions;
- any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
- any representation (except fraudulent misrepresentation), statement or tortious act or omission including negligence (except in the case of death or personal injury) arising under or in connection with the Contract.
- All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract. Specifically, although BDR will take all reasonable care to ensure that any Goods and Services supplier to the Buyer do not infringe any pre-existing intellectual property rights belonging to a third party., BDR does not warrant (either expressly or by implication) that any Goods prepared by BDR for the Buyer do not infringe any such intellectual property rights.
- BDR’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract price.
- BDR shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss) costs, damages, charges or expenses whatsoever (and howsoever caused) which arise out of or in connection with this Contract.
- BDR shall not be liable in any way for any loss or damage whatsoever and howsoever caused as a result of any act or omission of any third party publishing company, media owner or other third party supplier, nor shall BDR be held responsible for any costs incurred or any loss or damage suffered by the Buyer as a result of such act or omission.
- BDR undertake to treat as confidential all information received from the Buyer and BDR shall not disclose without the Buyer’s prior written consent any such information to a third party or use such information for any purpose other than as required to perform the Contract in the usual course of business.
- BDR shall be relieved of all liabilities to the Buyer in the event that the performance by BDR of this Contract or part thereof or any obligation herein contained is delayed and/or prevented and/or otherwise not complied with by reason of or in consequence of any matter not entirely within the control of BDR.
- This Contract is not transferable or assignable by the Buyer.
- Failure of either party to exercise any of their rights under this Contract upon any occasion shall not waive either party’s right to exercise the same on another occasion.
- The parties do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
- This Contract shall be subject to and interpreted in accordance with the laws of England.