OPTIC VERVE LIMITED

Standard Terms and Conditions

In these Conditions the following words shall have the following meanings:-

"Assignments"   means all animation graphics digital effects film video multi-media and any other services provided by the Company to the Client
"the Company"   means Optic Verve Limited
"the Client"   means the purchasing entity
"the Conditions"   means these Terms and Conditions
"Goods"   means any and all of the goods products or services supplied by the Company to the Client under an Assignment in accordance with an Order in any format including but not limited to written electronic film video DVD CD-ROM or digital

1.  Conditions applicable

• 1.1   The Conditions shall apply to all commercial dealings between the Company and the Client and all quotations given orders accepted and contracts made for the Assignments to the exclusion of all other terms and conditions including any terms or conditions which the Client may purport to apply under any purchase order confirmation of order or similar document
• 1.2   All orders for Assignments shall be deemed to be an offer by the Client to purchase those services pursuant to these Conditions
• 1.3   Continuing instructions from the Client to the Company confirmation of any specifications for the Assignments and/or acceptance of delivery or transmission of the Goods shall be deemed conclusive evidence of the Client's acceptance of these Conditions
• 1.4   Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in advance in writing by a director of the Company
• 1.5   The Conditions comprise the entire agreement between the Company and the Client and the Company's liability under any warranties contained in the Conditions (or otherwise implied by law) shall not be affected by any statements made to the Client unless the same has been reduced to writing and agreed with the Client

2.  Orders and approval

• 2.1   An "Order" is any request or instruction by the Client for the Company to undertake an Assignment
• 2.2   The Client is wholly responsible for providing the specifications for the Order in sufficient detail to enable the Company to successfully undertake the Assignment and for highlighting any specific purpose or any critical deadlines to be met. The Company shall not be liable for any loss whatsoever resulting from inaccurate defective or inadequate instructions from the Client.
• 2.3   All Orders shall be recorded in writing and shall be signed by the Client as confirmation that the Order is correct. Following such signature the Company will commence work on the Assignment and will submit such material for approval during the course of that work as is necessary in the Company's absolute discretion in the circumstances. Any resulting amendments are to be recorded in writing
• 2.4   On completion of the Assignment the Company will provide a sample of the Goods on VHS tape (or such other appropriate material or format as is applicable) for approval by the Client. Upon receiving written approval from the Client the Company will then produce the final version of the Goods (to broadcast quality where relevant) in the format required by the Order
• 2.5   In all respects the Client shall determine the suitability of the Goods for the Client's intended purpose and shall be deemed to be satisfied that they meet the Client's particular requirements
• 2.6   If the Client does not approve or amend any Assignment submitted for that purpose whether completed in whole or in part within a reasonable period then the Company may raise an invoice for the fees and expenses incurred to that date which shall be payable in accordance with clause 3
• 2.7   if the Client or anyone acting on behalf of the Client alters or amends the Order (as specified in clause 2.3) in any way then the Company may adjust its quoted fees or charge rate accordingly
• 2.8   the Client undertakes to notify the Company without delay of any circumstances which may materially affect an Assignment such as changes to the Order or delay and costs or expenses arising from such circumstances shall be payable by the Client
• 2.9   The Company reserves the right to restrict Assignments when there is a conflict of interest. Any such conflict will be highlighted at the proposal stage of an Assignment where ever possible

3.  Price and payment

• 3.1   Unless otherwise agreed, the Company's fees shall be the sum quoted in writing by the Company following receipt of an Order (as specified in clause 2.3) plus any of the following as applicable:-
  • 3.1.1   any additional fees or sums payable resulting from variations to the Order requested by the Client after the quotation was given
  • 3.1.2   any additional fees or sums incurred as a result of delay caused by the Client for whatever reason
  • 3.1.3   any fluctuations caused by but not restricted to increases in costs incurred by the Company as a consequence of any increase inthe cost of raw materials manufacture packaging transport or other direct or indirect costs
  • 3.1.4   any travel and/or accommodation expenses incurred as part of the Assignment any such fees or sums shall be added to the fees quoted (together referred to as "the Price") and the adjusted amount shall be invoiced to the Client
• 3.2   The Price is exclusive of value added tax which shall be due at the rate ruling on the date of the Company's invoice and shall be added to the Price together with any other statutory tax
• 3.3   Payment of the Price and value added tax shall be due within 21 days of the date of the Company's invoice and shall be made by the Client without any deduction whatsoever. Time for payment shall be of the essence.
• 3.4   Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 4% above National Westminster Bank Plc's base rate from time to time in force or 15% per annum whichever is the higher and shall accrue at such a rate after as well as before any judgment
• 3.5   On Orders exceeding £10,000.00 or where there is delay not caused by the Company the Client shall at the Company's request either make a part payment or payments of the Price in advance of completion/delivery of the Assignment or pay the value of the work completed at that time

4.  Delivery

• 4.1   The Goods shall be collected by the Client or delivered to the Client at the Client's address. The risk in the Goods shall pass to the Client upon leaving the Company's premises.
• 4.2   The Company will at the Client's request arrange for carriage of the Goods to the Client's address the costs of such carriage and any insurance which the Client reasonably directs the Company to incur shall be reimbursed by the Client without any set off or other withholding whatever and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Client's agent
• 4.3   The Company may deliver the Goods by separate instalments
• 4.4   Failure of the Company to deliver or the failure of the Client to pay for any one or more of the said instalments of the Goods on the due dates shall not entitle either party to treat this contract as repudiated
• 4.5   The Company shall not be liable for any loss or damage whatever due to failure by the Company to deliver the Goods (or any of them) promptly or at all
• 4.6   Notwithstanding that the Company may have delayed or failed to deliver the Goods (or any of them) promptly the Client shall be bound to accept delivery and to pay for the Goods in full

5.  Property in Goods pending payment

• 5.1   In spite of delivery having been made property in the Goods shall not pass from the Company until:-
  • 5.1.1   the Client shall have paid the Price plus value added tax in full; and
  • 5.1.2   no other sums whatever shall be due from the Client to the Company
• 5.2   Until property in the Goods passes to the Client in accordance with clause 5.1 the Client shall hold the Goods and each of them on a fiduciary bases as bailee for the Company. The Client shall store the Goods (at no cost to the Company) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Company's property
• 5.3   Notwithstanding that the Goods (or any of them) remain the property of the Company the Client may sell or use the Goods in the ordinary course of the Client's business at full market value for the account of the Company. Any such sale or dealing shall be a sale or use of the Company's property by the Client on the Client's own behalf and the Client shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Company the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Company and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Company's money
• 5.4   The Company shall be entitled to recover the Price (plus value added tax) notwithstanding that property in any of the Goods has not passed from the Company
• 5.5   Until such time as property in the Goods passes from the Company the Client shall upon request deliver up such of the Goods as have not ceased to be in existence or re-sold to the Company. If the Client fails to do so the Company may enter upon any premises owned occupied or controlled by the Client where the Goods are situated and repossess the Goods. On the making of such request the rights of the Client under clause 5.3 shall cease
• 5.6   The Client shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Company. Without prejudice to the other rights of the Company, if the Client does so all sums whatever owing by the Client to the Company shall forthwith become due and payable
• 5.7   The Client shall insure and keep insured the Goods to the full price against "all risks" to the reasonable satisfaction of the Company until the date that property in the Goods passes from the Company and shall whenever requested by the Company produce a copy of the policy of insurance. Without prejudice to the other rights of the Company, if the Client fails to do so all sums whatever owing by the Client to the Company shall forthwith become due and payable
• 5.8   The Client shall promptly deliver the prescribed particulars of this contract to the Registrar in accordance with the Companies Act 1985 part XII as amended. Without prejudice to the other rights of the Company, if the Client fails to do so all sums whatever owing by the Client to the Company shall forthwith become due and payable

6.  Interpretation and liability

• 6.1   The Goods shall be supplied in accordance with the description and specification agreed between the Company and the Client the final details of which shall have been confirmed in writing by the Client
• 6.2   The Company may from time to time make changes in the specification of the Goods which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the Goods
• 6.3   The Client shall inspect the Goods on delivery and shall within 3 days of delivery notify the Company of any alleged defect shortage in quantity damage or failure to comply with description. The Client shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery and before any use is made of them. If the Client shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the contract and free from any defect or damage which would be apparent on a reasonable examination of the Goods and the Client shall be deemed to have accepted the Goods
• 6.4   The Client shall notify the Company of any non-delivery within 14 days of the date of despatch (as stated on the invoice). Notwithstanding the receipt by the Company of any such notice a clear signature on a carrier's delivery advice sheet shall be deemed to signify the receipt of the quantity indicated on the advice sheet
• 6.5   If the Goods are not in accordance with the contract for any reason the Client's sole remedy shall be limited to the Company making good any shortage by replacing such Goods or if the Company shall elect by refunding a proportionate part of the Price
• 6.6   The Company shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) howsoever arising suffered by the Client arising out of a breach by the Company of this contract
• 6.7   In the event of any breach of any contract by the Company the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Company exceed the Price of the Goods
• 6.8   All warranties and conditions whether implied by statute or otherwise are excluded from this contract provided that nothing in this contract shall restrict or exclude liability for death or personal injury caused by the negligence of the Company or affect the statutory rights of the Client dealing as consumer
• 6.9   The Company shall not be liable for any loss damage cost detriment or expense whatsoever however arising if manufacture or delivery of the Goods is delayed or hindered by act of God governmental intervention or restriction hostilities civil commotion fire flood accident machinery breakdowns strike lock out non-delivery of goods by the Company's suppliers or any other cause or circumstance whatsoever beyond the reasonable control of the Company and on the occurrence of any of the above events the Company reserves the right to cancel this agreement or suspend delivery of the Goods to the Client

7.  Intellectual Property

• 7.1   "Intellectual Property" means all industrial and intellectual property rights including without limitation patents trade marks and/or service marks (whether registered or un-registered) registered designs unregistered designs and copyrights and any applications for any of the foregoing in any part of the world and the copyright in all drawings plus specifications designs and computer software and all know how (that is all information (including that comprised in or derived from data disks tapes manuals source codes flow charts catalogues and instructions) relating to services provided and/or products manufactured by the parties) and confidential information owned and used by the parties
• 7.2   Subject to clause 7.4 the Components contained in and the specifications and designs of the Goods including the Intellectual Property in them shall as between the parties be the property of the Company.
• 7.3   Where any designs or specifications have been supplied by the Client for manufacture by or to the order of the Company then the Client warrants that the use of those designs or specifications for the manufacture processing assembly or supply of the Goods shall not infringe the rights of any third party
• 7.4   Where any specifications and designs of the Goods or any of the Goods have been provided by the Client the Intellectual Property in them shall remain the property of the Client. Not withstanding the foregoing the Intellectual Property in any components created by or incorporated within the Goods shall at all times be the property of the Company
• 7.5   No right or licence is granted under this contract to the Client under any Intellectual Property right except the right to use or re-sell the Goods
• 7.6   All Goods sold in retail packaging may be resold by the Client only in the packaging supplied by the Company and in no case may any trademark other than those applied by the Company be marked on or applied in relation to the Goods
• 7.7   The Client undertakes to respect and keep confidential all confidential information whether relating to Intellectual Property rights or otherwise supplied to it during as well as after an Assignment

8.  Assignment

9.  Insolvency

• 9.1   suspend all future deliveries of Goods to the Client and/or terminate the contract without liability upon its part; and/or
• 9.2   exercise any of its rights pursuant to clause 5

10.  Cancellation

11.  Termination

12.  Third party rights

13.  General

• 13.1   If any term or provision of this agreement shall be found to be unenforceable for any reason whatsoever then this agreement shall be constructed as if such term or provision was specifically excluded from it
• 13.2   The waiver by the Company of any breach of any of the terms of this agreement shall not prevent the subsequent enforcement of that term and shall not be deemed to be a waiver of a subsequent breach
• 13.3   This agreement shall be governed by and construed in accordance with English law and the Company and the Client shall submit in all matters or disputes arising out of this agreement to the exclusive jurisdiction of the courts of law of England
• 13.4   Unless the context otherwise requires the singular includes the plural and vice versa references to persons include references to firms companies or corporations and vice versa and references in the masculine gender include references to the feminine or neuter genders and vice versa
• 13.5   The clause headings do not form part of this agreement and shall not be taken into account in its construction or interpretation
• 13.6   Where the Client is two or more persons then the liability of those persons shall be joint and several