Signature Digital Menus Terms & Conditions
1. Interpretation
1.1. In these Conditions
1.1.1 'Buyer' means the person who accepts a quotation of the Seller for the sale of the Goods and or Services or whose order for the Goods or Services is accepted by the Seller.
1.1.2 'Goods or Services' means the goods (including any instalment of the goods or any part of them or any other service which enables them to operate) which the Seller is to supply in accordance with these Conditions.
1.1.3 'Seller' means Signature Digital Menus Ltd (registered in England under number 6686732).
1.2 By engaging in buying from the Seller, it is accepted by all parties that the Buyer has accepted the terms & conditions of this contract without necessarily actually signing a recognised order form.
2. Basis of the Sale
2.1. The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2. No variation to these Conditions shall be binding unless agreed in Writing between the authorised representative of the Buyer and the Seller.
2.3. The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
2.4. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
3. Orders and specifications
3.1. No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller's authorised representative and the Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order.
3.2. The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller).
4. Price of the goods
4.1. The price of the Goods shall be Seller?s quoted price or, where no price has been quoted (or a quoted price is no longer valid) the price listed in the Seller's standard catalogue/published price lists current at the date of acceptance of the order. All prices quoted are valid for 28 days (or such other period specifically confirmed in writing by the Seller) after which time they may be altered by the Seller without notice.
4.2. The Seller reserves the right at any time before delivery, to increase the price of the Goods to reflect any increase in cost to the Seller which is due to any factor beyond the control of the Seller.
4.3. All price are quoted EX-WORKS the Seller's premises, whether these be specified in the UK, Europe of the Rest of the World, and are exclusive of any applicable value added tax, any local charges and delivery (unless otherwise specified in Writing by the Seller's authorised representative. The Buyer acknowledges that The Seller requires appropriate VAT invoices in respect of all payments made by it to the Buyer under this Agreement and hereby authorises the Seller to issue such VAT invoices to itself on behalf of the Operator in respect of all payments made by The Buyer to the Seller under this Agreement.
4.4 Any goods or services ordered but not called down may be invoiced upon completion awaiting delivery and installation.
4.5 The Seller retains the right to deduct from the deposit or make further charges for any cost it has sustained by delay to call down or cancelation.
4.6 Goods that are not called down within 28 days of agreed delivery date, may be re-appropriated by the Seller.
5. Terms of payment
Goods
5.1. The Buyer shall pay for all goods against Pro-forma Invoice prior to delivery, unless credit terms have been agreed in advance in writing with the Seller's authorised representative.
The Buyer will make payment for Goods in the following manner:
5.1.1 50 % deposit to be paid in advance by cash, building society cheque, bankers draft, BACS transfer or personal cheque.
5.1.2 Balance due on completion of order before delivery or installation (Note: payment will deemed to have been received once the Seller receives cleared funds)
5.2. Where credit terms have been agreed, the Buyer shall pay the price of the Goods without any other deduction (including, but not limited to, any Bank charges applicable) within 30 days from the date of Completion of order as noted on the Commercial Sales Invoice. The Seller shall be entitled to recover the price notwithstanding that the property in the Goods has not passed to the Buyer. The time of payment of the price shall be the essence of the Contract. Receipts for payment issued only on request.
5.3. If the Buyer fails to make any payment on the due date then, the Seller shall be entitled to cancel the contract or suspend any further deliveries to the Buyer, withdraw credit facilities and/or to charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of three per cent above bank base rate per month.
5.4 The Buyer may not withhold or set off payment for goods and services delivered against accounts on other contracts.
5.5 The Seller may supply goods or services by more than one consignment and invoice each separately, in which case each such consignment shall be deemed to be a separate contract subject to these Conditions and the Buyer shall pay to the Seller the amount payable under the invoice for each consignment notwithstanding any rights which the Buyer claim against the Seller in respect of any other consignment.
Ongoing Services
5.6 For connected Goods (i.e. those that need to be connected through the internet for purposes of remotely updating content) the Seller's software is supplied as an ASP Service; for which the Buyer will pay an ongoing fee for all media players connected to the main Seller's server system for the contracted period. This fee covers all software licensing costs, upgrades, support, hosting, server infrastructure, security & Proactive Monitoring. There are two options for Network Services payment terms:
5.6.1 Per estate connected yearly in advance or
5.6.2 Per player connected, every three months in advance by direct debit
5.6.3 The Buyer agrees to complete any bank documents or other documents as required by the Seller to enable the Service Fee to be paid. No payment shall be deemed to have been received until the Seller has received cleared funds.
5.6.4 The Seller shall be entitled to vary the Service Fee annually on the anniversary of Commencement Date of this Agreement and shall provide the Buyer with at least 30 days? prior written notice of any such change.
5.6.5 Content updates additional to agreed levels will be billed by Pro Forma invoice
5.6.6 Running Costs for bandwidth traffic & other variable services such as RSS feeds and on-line media storage costs will be billed monthly in arrears on an ongoing basis.
Additional Outlets
5.7 The terms of this Agreement shall apply to each Additional Outlet on and from the New Installation Date of the relevant Additional Outlet.
6. Delivery of Goods
6.1. Delivery of the Goods shall be made by the Seller, delivering them to such place as has been agreed with the Buyer.
6.2. The Seller will use a Courier/Forwarder of their choice and charge any costs incurred directly to the Buyer. An alternative shipping method will only be used if specified by the Buyer and agreed in Writing by the Seller in advance of the date of shipping.
6.3. Any dates quoted for the delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. The Seller does not accept liability for late delivery or installation and does not accept that a late delivery or installation may constitute a guarantee or a reason for cancellation of this contract.
6.4. Products are sold Ex-Works. The Buyer is therefore responsible for all delivery charges, local taxes and Insurance regarding the delivery of the products (unless otherwise agreed in Writing with the Seller's authorised representative at time of order).
7. Installation
7.1 It is the responsibility of the Buyer to ensure that application to erect signs is obtained from Property of Owners, Local Authorities, and any other required Authority. The Seller will not accept any liability for non compliance.
7.2 It is the responsibility of the Buyer to provide a suitable power supply at the location of any signage requiring power. It is also the responsibility of the Buyer to provide a stable broadband connection for the connection of the digital signs.
7.3 The Seller will not affect repairs to base fascias for Goods. It is the responsibility of the Buyer to supply a suitable fascia background capable to support the sign.
7.4 Whilst working with any materials supplied by the Buyer, the Seller will execute utmost care, but will not be liable for any breakage or damage.
7.5 It is the responsibility of the Buyer to ensure that adequate public risk insurance is obtained. The Seller will not accept, or be liable for any claims that may be incurred which may be subject to such policy. The Seller will not guarantee the sign or other work provided against damage by act of God, war, civil unrest, and any other situations that may be covered by an insurance policy.
7.6 Repairs or installations by any other company or individual other than by the Seller and any damage from such work will not leave the Seller responsible for it.
7.7 Any tampering with the Goods will invalidate the warranty.
7.8 The Seller will use reasonable endeavours to procure that third party service providers enter into agreements directly with the Buyer to perform services for the relevant Outlets to supply and install any Other Equipment, circuits and Dedicated Devices (such as ADSL lines) and such third parties will provide those services directly to the Operator on separate terms and conditions.
7.9 Disposal of replaced signs, fascias, fixtures and any other part of the shopfit that is replaced during the installation of new Goods will be agreed in writing by the Buyer so that ownership can pass to the Seller for disposal purposes.
7.10 A party may not assign or transfer or purport to assign or transfer a right or obligation under this Agreement without having first obtained the other party's written consent, provided that The Seller shall be entitled to assign and transfer all of its rights and obligations under this Agreement to any of its associated companies without requiring any further consent from the Buyer and The Seller may subcontract the performance of any of its obligations under this Agreement.
8. Risk and Title
8.1. Risk of damage to or loss of the Goods shall pass to the Buyer on their collection from the Seller's premises (whether by the Buyer or by a courier), or once installed
8.2. The property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.
8.3. Until such time of the property in the Goods passes to the Buyer, the Seller shall be entitled at any time beyond the standard payment conditions to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored, or have been resold to, and to repossess the Goods.
8.4 Exception to property Transfer: Title in the Goods shall not pass to the Customer until the Supplier has been paid in full for the Goods, with the following exceptions for code-based projects. Any custom programming/source code or programming for source code utilised in or developed for the production of deliverables for the Customer shall remain the property of the Supplier and may be used for other projects or sold to other parties at the Supplier's discretion. Once the satisfaction letter has been signed and full payment has been received and cleared through the Supplier's bank account the front-end project deliverables as provided in the Supplier's Specification document will become the property of the Customer. The Customer shall have a non-exclusive non-transferable licence to use custom programming/source code or programming for source code utilised in or for such deliverables but only in respect of operation/modification or development of the web-site or other deliverables and not for any other purpose including without limitation assignment of such licence or sub-licensing. If the project is Internet based then it will be transferred to the Customer's domain name and web space. If the project is of some other type then it will be handed over to the Customer.
9. Buyer Obligations
The Buyer shall:
9.1 Keep the Equipment at all times under its sole possession and control at each Outlet
9.2 Allow the seller (and any person authorised by the Seller) to enter the premises of each Outlet to survey the Outlet and to install, maintain and inspect the Equipment and to carry out consumer research
9.3 Indemnify and keep the Seller indemnified against any and all loss, damages, costs and expenses incurred or suffered by the Seller by reason of any loss, injury or damage suffered by any person or thing arising out of the state, condition or use of the Goods at the Outlets
9.4 Not use or permit the use of the Goods to broadcast or send any message or communication which is, or could be, offensive, defamatory, in breach of any copyright or obligation of confidence or competition law, or is otherwise unlawful
9.5 Make all endeavours to ensure that the Goods remain fully operational
10. Support Services
10.1 With effect from the Certification Date in respect of each Outlet the Seller will provide the Buyer with the Support Services in respect of the Equipment (but not Other Equipment or Dedicated Devices) in accordance with these Terms & Conditions (See Support Services schedule)
11. Copyright
11.1 Interpretation:
11.1.1 'Images, animations and Designs': anything that appears on a screen supplied by The Seller
11.1.2 'Location' a menu display formed by one or more modular units located above one serving counter
11.2 The Seller owns the copyright on all images, animations and designs produced whether complete or a derivative of. The use of this material by the Buyer does not imply a change of ownership. This is applicable unless, as part of the service, the Buyer, specifically commissions a custom film shoot and design process that includes payment for copyright.
11.3 The Buyer 'rents' the right to use the Seller's image, animation or design on their display. The Buyer is entitled as the license owner to use the image, animation or design that they have paid for and for the length of the specified contract. Each license is applicable to one single user. If the Buyer wishes to use the image, animation or design for more than one Location, then the Buyer must purchase a license for each location.
11.5 The Buyer may NOT:
11.5.1 Re-license, lease, sub-license or sell any image, animation or design licensed, from Seller
11.5.2 Transfer or assign rights to an image, animation or design licensed from the Seller
11.5.3 Claim ownership of any Derivative Work
11.5.4 Make any copy of image, animation or design (by whatever means)
11.6 The use or reproduction by whatever means, of the whole, or any part of any image, animation or design is strictly forbidden
11.7 In the event that one of the seller's images animations or designs is used without prior written permission, The Seller will have the right to sue the Buyer from which the image, animation or design was taken for copyright infringement and damage.
11.8 The Buyer must satisfy themselves that all necessary rights, model releases or consents which may be required are obtained and that the use of any image, animation or design is not obscene, indecent, libellous or unlawful. The Seller makes no claim or warranty with regard to your use of content, names, text, people, trademarks or copyright material depicted in any image, and the Buyer must indemnify the Seller in respect of any claims, damages, costs or expenses the Seller may incur arising from the use of any image supplied to the Buyer
11.9 The Seller will take care in the performance of this agreement; however the seller shall not be liable for any loss or damage suffered by the buyer or by any third party arising from the use of an image, animation or design.
11.10 Any licence granted terminates immediately if the Buyer: a) enters into voluntary or compulsory liquidation b) have a receiver appointed, or (c) fails to adhere to these Terms and Conditions within 28 days of the Seller giving the Buyer notice to comply. In the event of termination, all rights granted will immediately revert to the Seller and any further exploitation of any image shall constitute an infringement of copyright.
11.11 Failure by the Seller to exercise or enforce any of the Seller's rights will not be deemed to be a waiver of such rights nor bar their exercise or enforcement in future.
11.12 The Buyer shall indemnify the Seller, its subsidiaries, its affiliates and licensors against any losses, expenses, costs or damages incurred by any or all of them as a result of the Buyer's breach of the terms of this Agreement or your unauthorized use of the Content and related rights.
11.13 The Seller accepts no responsibility for loss or damage resultant from use of images, animations & designs licensed, including, without limitation, lost profits, direct, indirect, compensatory, consequential, exemplary, special, incidental, or punitive damages.
11.14 The Seller has the exclusive right to make or reproduce any article shown on a design proof until that design has been bought along with the Copyright by the named Buyer (patent act 1988: design Copyright) .
11.15 Following the termination of the Agreement, the Buyer shall cease to use or play any of the images, animations or designs supplied by the Seller.
12. General
12.1. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same of any other provision.
12.2. If any provision of these Conditions is held by the competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
12.3. This contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English Courts.
12.4 This contract is not subject to cancellation. However, if a situation arises beyond the control of the Buyer and an agreement between both parties in writing is obtained, this contract may be cancelled.
12.6 No provision of this Agreement creates a partnership between the parties or makes a party the agent of the other party for any purpose. A party has no authority or power to bind, to contract in the name of, or to create a liability for the other party in any way or for any purpose.
12.7 The Seller reserves the right to change its information, prices, Terms and Conditions of use without notice.
12.8 The Seller will not be held responsible for any associated loss of business through non operation of the Goods
12.9 The Buyer will not, except with the Seller's prior written consent, during the continuance of the Agreement (and for a period of three years following the termination or expiry of the Agreement), be involved directly or indirectly in the development, sale or marketing of any goods or services which compete with the equipment and the services supplied by the Seller.
13. Force Majeure
13.1 Neither party will be liable to the other for any failure to fulfil obligations caused by circumstances outside its reasonable control. If such circumstances continue for more than 30 days from the date of their commencement, either party may terminate this Agreement by giving to the other party not less than 30 days written notice.
Signature Digital Menus Support Services
1. Helpdesk
The Seller shall provide a Helpdesk service to the Buyer and to each Outlet. The Buyer and each Outlet will be able to contact The Seller by means of the following telephone number, fax number, (the "Helpdesk"):
Telephone: 01920 483 249
Fax 01920 483 233
Between the hours of 09.00 and 17.30 on business days (or as advised from time to time), the above telephone number will be staffed by a person(s) designated by The Seller to provide advice and assistance to the Buyer and the Outlets in respect of defects in or problems with the Goods or Services. Outside of these hours and on non-business days, the Buyer and Outlets can report any problems with or defects in the Goods by leaving a voicemail message. The Seller will use all reasonable endeavours to respond to all voicemail messages as soon as may be reasonably practicable on the next business day. The Helpdesk service shall consist of the following:
Call logging - the Helpdesk shall log all calls received and assign a reference number;
First line analysis - the Helpdesk shall perform first line analysis to determine who is responsible for resolving reported incidents and requests;
Incident management - where The Seller is responsible for supporting the failing component, the Helpdesk shall manage all incidents relating to the provision of the Services to resolution to agreed timescales and keep the Outlet informed of progress to an agreed schedule.
Call closure - the Helpdesk shall agree that incidents have been resolved satisfactorily with the Outlet and/or Operator before closing a call.
2. On-site support
The Seller agrees to fix or replace (at its option) any "of its" Equipment (excluding screens) found to be defective and reported by The Buyer within the relevant warranty period (one year from the date of delivery). In the event that any defect to or problem with the Equipment cannot be resolved remotely, The Seller will attend the premises of the relevant Outlet and endeavour to rectify the defect or problem as soon as practicable in the circumstances UNLESS where such defect or problem is the result of fair wear and tear arising out of the normal and prudent use of the Equipment by the Outlet and/or identified by the Outlet.
The Seller reserves the right to charge the Buyer for all reasonable expenses incurred by The Seller in attending such premises (including, without limitation, any reasonable travelling costs) if the Seller is not responsible for rectifying such defect or problem or if such defect or problem could reasonably have been rectified by the Buyer or the relevant Outlet following The Seller's telephonic advice and assistance.
3. Obligations applicable to the support services
3.1 The Buyer shall (or shall procure that each Outlet shall):
(a) Not tamper with, move or switch off Equipment without the prior written consent of The Seller;
(b) co-operate fully with The Seller's staff in diagnosing any error or defect in the Equipment;
(c) inform the Helpdesk of all problems with or defects in: (i) the Goods or any component part of the Goods; and (ii) the Other Equipment which affect of may affect a Dedicated Device, within four hours of becoming aware of such problems or defects or within one hour after the relevant Outlet closes to the public on the relevant day (whichever is the earlier);
(d) ensure that the Other Equipment and Dedicated Devices are maintained and supported to ensure that the Dedicated Devices are playing the Media Services content at least 90% of the time during the opening Hours of the outlet;
(e) visually inspect the Goods regularly to identify evident problems with the Goods operation and shall be responsible for arranging such tests as are necessary to ensure that the Goods, when used in conjunction with the Buyer's Other Equipment and in the Outlet environment and otherwise, complies with current Health and Safety legislation as amended from time to time;
(f) carry out routine maintenance of the Goods, which shall be limited to dusting and cleaning following spillage or a build up of debris, subject to any further instruction issued by the Seller under paragraph (e) above;
(h) accept a Repair (including a temporary loan replacement) of any Equipment defect as satisfaction of the provision of Support Services under this Agreement;
(i) ensure availability of an adequate supply of electricity for the correct and safe operation of the Equipment; and
(j) make available to the Seller, free of charge, all information, facilities and services and access to the Equipment and the premises of each Outlet as reasonably required by the Seller to enable it to perform the Support Services.
3.2 The Seller shall not be liable to provide any Support Services to the extent that such Support Services are required as a result of any of the following:
(a) any unauthorised use (e.g. any error, accident, negligence or operation in a manner contrary to the manufacturer's operating instructions or contemplated or approved use of the Equipment) by the Buyer (or the relevant Outlet) of the Equipment or any component part of the Equipment;
(b) a breach by the Buyer (or the relevant Outlet) of the provisions of any term of this Agreement which has or may have an adverse effect on the Equipment;
(c) any use of the Equipment or any component parts of the Equipment in connection with any hardware, software or other material not provided to the Operator;
(d) any Repair of any Equipment defect which is not the result of fair wear and tear arising out of the normal and prudent use of the Equipment; or would render the Equipment of a higher specification than the original manufacturer specification;
(e) any Repair or service to the Equipment which is: to correct cosmetic damage to the appearance of the Equipment such as replacement of any plastic part of the Equipment which has become cracked or damaged; or to overhaul or refurbish the Equipment at the Operator's request;
(f) any unauthorised modification, repair or service to the Equipment;
(g) unnecessary on-site support where the Equipment is operating to the manufacturer's operating specifications
3.3 The Buyer agrees that The Seller may, at its sole discretion upon reasonable notice to the Buyer, make preventative or remedial Repairs to the Goods (or part) at each Outlet from time to time to avoid or minimise the risk of problems and the Buyer agrees to provide all reasonable assistance to The Seller.
3.4 The Operator will accept all upgrades and/or updates of any part of the Equipment made available by The Seller from time to time as part of the Support Services
3.5 The Buyer accepts that any Equipment part(s) or other good(s) required to perform the Support Services are at its risk following delivery.
3.6 The Operator shall not connect Other Equipment to the Goods without written authorisation from The Buyer