Trading Terms and Conditions
In this document the following words shall have the following meanings:
1.1 "Agreement" means these Terms and Conditions together with the terms of any applicable Specification Document;
1.2 "Customer" means the organization or person who purchases goods and services from the Supplier;
1.3 "Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property;
1.4 "Specification Document" means a statement of work, quotation or other similar document either in hard copy or electronic form describing the goods and services to be provided by the Supplier;
1.5 "Supplier" means FUNDEO LTD
2.1 These Terms and Conditions shall apply to all contracts for the supply of goods and services by the Supplier to the Customer.
2.2 No variation to these Conditions shall be binding unless agreed in writing by a director of the Customer.
2.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Customer.
2.4 Before the commencement of providing the goods and services the Supplier shall provide to the Customer a list of the goods and services to be supplied and the price payable. The Customer will have the option to not proceed with the purchase or to notify the Supplier immediately if the Customer does not agree with the contents of the list of services and goods or prices.
2.5 The Supplier shall use all reasonable endeavors to complete the production of the goods and services within estimated time frames but time shall not be of the essence in the performance of any services.
3. Price and Payment
3.1 All prices provided in the Specification Document are subject to immediate acceptance at the time of the electronic order or in exceptional circumstances any period otherwise specified and are then subject to any increase which may occur as a result of factors falling outside the control of the Supplier.
3.2 Invoiced amounts shall be due and payable upon order of the goods, or exceptionally and when stated in writing by us, within 30 days of receipt of invoice for Customers where credit has been pre-arranged. The Supplier shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 10.00% per annum above the base rate of the Bank of England. In the event that the Customer's procedures require that an invoice be submitted against a purchase order to payment, the Customer shall be responsible for issuing such purchase order before the goods and services are supplied.
3.3 VAT and any other duties or taxes where applicable will be included within the prices at the rate ruling at the date of dispatch and will not be surcharged.
3.4 The Customer may be required to pay refundable deposit(s) in advance for any hirable item, said deposits are refundable by the Supplier within 10 days of receipt of the goods by the Supplier provided that the hirable is returned timely (see Item 7.5 under Customer Obligations).
3.5 Deposits are refunded to the credit cards with which they were paid or in exceptional cases and in the UK only are refunded by cheque.
4. Specification of the goods
All goods shall be required only to conform to the specification in the Specification Document. For the avoidance of doubt no description, specification or illustration contained in any product pamphlet or other sales or marketing literature of the Supplier and no representation written or oral, correspondence or statement shall form part of the contract.
5.1 The date of delivery specified by the Supplier is an estimate only. Time for delivery shall not be the essence of the contract and the Supplier shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods.
6.1. The Suppliers film shows remain the property of the Supplier and title does not pass to the Customer. Any hired equipment or supplies must be returned to the Supplier after use or the Customer will either forfeit a prepaid deposit for their return if applicable or will be charged a weekly Late Return Penalty Fee together with an additional fee to purchase the races after 13 weeks. Standard Race Night film shows may be used for just one Race Night event before the USE BY period stamped on the video unless express permission for an additional event date is granted by us in writing. Customers of Multi-Event packs may use the film-show for numerous events before the (extended) USE BY date stamped on the video and/or paperwork.
6.2. The risk in the goods shall pass to the Customer on dispatch of the Goods. At that moment, the Customer shall become responsible for the care and protection of the goods and shall take out at its own expense adequate and comprehensive all risks cover on the goods (with a note of the Supplier's interest endorsed therein until the Supplier has received payment of the price in full).
7. Customer's obligations
7.1 To enable the Supplier to perform its obligations under this Agreement the Customer shall:
7.1.1 Co-operate with the Supplier;
7.1.2 Provide the Supplier with any information reasonably required by the Supplier;
7.1.3 Obtain all necessary permissions and consents which may be required before the commencement of the services; and
7.1.4 Comply with such other requirements as may be set out in the Specification Document or otherwise agreed between the parties.
7.2 The Customer shall be liable to compensate the Supplier for any expenses incurred by the Supplier as a result of the Customer's failure to comply with Clause 7.1.
7.3 Without prejudice to any other rights to which the Supplier may be entitled, in the event that the Customer unlawfully terminates or cancels the goods and services agreed to in the Specification Document, the Customer shall be required to pay to the Supplier as agreed damages and not as a penalty the full amount of any third party costs to which the Supplier has committed and the full amount of the goods and services contracted for as set out in the Specification Document, and the Customer agrees this is a genuine pre-estimate of the Supplier's losses in such a case. For the avoidance of doubt, the Customer's failure to comply with any obligations under Clause 7.1 shall be deemed to be a cancellation of the goods and services and subject to the payment of the damages set out in this Clause.
7.3.1 No order which has been accepted by the Supplier may be re-scheduled by the Customer except with the agreement in writing of the Supplier.
7.4 In the event that the Customer or any third party, not being a sub-contractor of the Supplier, shall omit or commit anything which prevents or delays the Supplier from undertaking or complying with any of its obligations under this Agreement, then the Supplier shall notify the Customer as soon as possible and:
7.4.1 the Supplier shall have no liability in respect of any delay to the completion of any project;
7.4.2 if applicable, the timetable for the production of the goods and services will be modified accordingly;
7.4.3 the Supplier shall notify the Customer at the same time if it intends to make any claim for additional costs.
7.5 The Customer is required to return any supplied hirable to the Supplier such that they be received by the Supplier within a period of 7 days following the date of the event for which it was supplied (14 days for Customers outside of the UK). If hirables are received outside of this timeframe then the Customer will either forfeit a prepaid deposit for their return if applicable or will be charged a weekly Late Return Penalty Fee together with an additional fee to purchase the races after 13 weeks. Customers are advised for their own peace of mind to obtain suitable proof of dispatch and check insurance provisions for valuable items.
When returning goods from outside the United Kingdom the Customer must clearly mark the box as 'returned goods'.
8. Alterations to the specification document
8.1 The parties may at any time mutually agree upon and execute new Specification Documents. Any alterations in the scope of goods and/or services to be provided under this Agreement shall be set out in the Specification Document, which shall reflect the changed goods and/or services and price and any other terms agreed between the parties.
8.2 The Customer may at any time request alterations to the Specification Document by notice in writing to the Supplier. On receipt of the request for alterations the Supplier shall, within 5 working days or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if any, on the price and any other terms already agreed between the parties.
8.3 Where the Supplier gives written notice to the Customer agreeing to perform any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise the Supplier by notice in writing whether or not it wishes the alterations to proceed.
8.4 Where the Supplier gives written notice to the Customer agreeing to perform alterations on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes the alterations to proceed on those terms, the Specification Document shall be amended to reflect such alterations and thereafter the Supplier shall perform this Agreement upon the basis of such amended terms.
9.1 The Customer must inform the Supplier of any inadequacy in the goods supplied within 2 working days of receipt of the goods in writing at the address provided below or by email. Customized goods are exempt from all refunds unless not fitting the ordered specification - wrong pack, wrong format etc. In such rare examples we reserve the right to re-supply the corrected goods.
9.2 Orders for DVD media will be accompanied by a Test DVD in the same format to allow testing of the DVD player before the event. The Supplier produces DVD's in DVD+R format and they will play in the majority of players. If the test DVD does not play satisfactorily then another DVD player must be used.
9.3 DVD's are particularly susceptible to knocks, fingerprints / dirt, the quality of the players and the competence of the operator with the remote control. The Customer will receive a brand new, clean and tested DVD from the Supplier in a protective case. The Customer must take great care of their DVD's and any other media supplied to ensure that their event is not jeopardized. In the event of faulty DVD play, the Customer is asked to wipe clean the DVD, examine it for scratches and marks and to try it in another DVD player before lodging a complaint and returning it. The media will be thoroughly tested upon its return and the customer may be charged by the Supplier for time wastage in the event that no fault is found. In the extremely unlikely event that there is a genuine fault then a refund shall be provided by the Supplier to such amount as at the sole discretion of the Supplier reflects the portion of the event which was lost plus an amount for goodwill and less, at the sole discretion of the Supplier, the sum of any funds raised at the event. Under no circumstances shall the refund exceed the total value of the goods supplied.
9.4 For the Customers peace of mind we strongly recommend obtaining suitable proof of dispatch and check insurance provisions for valuable items.
When returning goods from outside the United Kingdom the Customer must clearly mark the box as 'returned goods'.
10.1 The Suppliers products are made to order and for this reason the Supplier will not accept cancellation of orders once the goods are produced and/or dispatched. Cancellations received before dispatch will only be refunded in part at the sole discretion of the Supplier depending on the stage of the production process and late cancellations will be subject to a minimum of 50% of value of goods ordered as a cancellation fee.
This does not affect your statutory rights as a consumer.
11. Customised Products
11.1 The Supplier produces packs customized to the specification of the Customer. It is the Customers sole responsibility to ensure that the nature of the product does not cause offence to the intended audience of the event. The Supplier accepts no responsibility for any unfavorable response or reaction of the audience or viewers.
11.2 The Supplier reserves the right to modify or censor customized content of the media at their sole discretion.
12.1 Except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the goods and services to be provided by the Supplier.
The Customer shall indemnify the Supplier against all claims, costs and expenses which the Supplier may incur and which arise, directly or indirectly, from the Customer's breach of any of its obligations under this Agreement, including any claims brought against the Supplier alleging that any goods and/or services provided by the Supplier in accordance with the Specification Document infringes a patent, copyright or trade secret or other similar right of a third party.
14. Limitation of liability
14.1 Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of the Supplier to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the price paid by the Customer to which the claim relates.
14.2 In no event shall the Supplier be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Supplier had been made aware of the possibility of the Customer incurring such a loss.
14.3 Nothing in these Terms and Conditions shall exclude or limit the Supplier's liability for death or personal injury resulting from the Supplier's negligence or that of its employees, agents or sub-contractors.
Either party may terminate this Agreement forthwith by notice in writing to the other if:
15.1 the other party fails to make any payment when due or commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
15.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
15.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
15.4 the other party ceases to carry on its business or substantially the whole of its business; or
15.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
16. Intellectual Property Rights
16.1 The Video Film
The video as VHS or DVD contains multimedia and carries the Supplier's copyright. It also contains copyrighted material of the Microsoft Corporation which the Supplier, as a Licensee has a duty to protect. Copying, editing, dubbing, extracting images from, or transposing the video film to different media formats etc is strictly forbidden.
16.2 Care of the Film Media
The Supplier's film shows are recorded on high quality toughened VHS videotape or on a DVD disc. All videos are recorded new and tested before dispatch. The Customer accepts full responsibility for the video whilst it is within their care. This aside any damage caused to the DVD or videotape whilst within the Customers care will not jeopardize any refundable deposit due for the Customer for its return provided it is returned within the stipulated return period.
16.3. The Snail Racing 'Betting' Tickets
The betting tickets are an important part of the Supplier's Race Night packs MUST be used with the Supplier's packs with public audiences except in exceptional circumstances where permission may be requested by the Customer and granted by the Supplier in writing. The Customer agrees not to use any form of substitute for the Supplier's tickets, nor imitations of their tickets, nor make copies of the tickets.
16.4. Other documentation (excluding 'betting tickets')
The Customer may use their own Race Cards, Guidance Notes, Tabulator forms and other 'help' sheets if desired but MUST then footnote all reference to Fundeo Snail Racing with the words "Copyright 2000-2009, Fundeo Ltd. All rights reserved". Likewise the Customer MUST footnote all reference to "Peedy" the talking Parrot with the words: "Copyright 1996-1998 Microsoft Corporation. All rights reserved". The Customer also has permission to make copies of the other printed documents provided (this STRICTLY excludes the betting tickets).
16.5 There are additional special conditions for Customer's of our Multi-Event Packs which conditions will be supplied with said packs.
16.6 The Supplier will search out and taking legal proceedings against perpetrators of Copyright Infringement and dishonest conduct. Such perpetrators will also be blacklisted and barred from further supplies. The Customer agrees to report suspected cases of piracy, plagiarism or copyright infringement by writing to the address below or by emailing the Supplier at 'abuse @fundeo.com'. Reportings will be treated confidentially.
16.7 All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Supplier, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Supplier by the execution of appropriate instruments or the making of agreements with third parties.
17. Force Majeure
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, untimely deliveries, delivery failures, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, delivery or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
18. Independant Contractors
The Supplier and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Supplier may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve the Supplier of its obligations under this Agreement or any applicable Specification Document.
The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Supplier.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Specification Document or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved, be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
23. Entire Agreement
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
24. No third Parties
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
25. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the law of Scotland and the parties hereby submit to the exclusive jurisdiction of the Scottish courts.
Elgin, Moray IV30 4DL
SCOTLAND - UK