In these Conditions:
“Client” means the buyer of Goods and/or Services from Eureka Entertainment Ltd;
“Contract” means the agreement between the Client and Eureka Entertainment Ltd for the supply of Goods and/or Services;
“Force Majeure Event” shall have the meaning given in paragraph 3.2 of Part B & paragraph 1.4 of Part C;
“Goods” means the goods agreed to be supplied to the Client by Eureka Entertainment Ltd;
“Liability in relation to” shall mean “liabilities, losses, damages, costs (including without limitation legal costs on a full indemnity basis and value added tax and other applicable taxation), expenses, actions, claims, proceedings and demands whatsoever arising directly or indirectly out of or in connection with”;
“Materials” means the content and/or materials provided by or on behalf of the Client to Eureka Entertainment Ltd for the performance of the Services and/or the provision of the Goods;
“Order” means the order form, including any applicable specification, submitted by the Client to Eureka Entertainment Ltd for Goods and/or Services;
“Products” shall mean all recorded material and any other goods and materials (including but not limited to DVDs and Blu Rays) together with their packaging;
“Services” means the services agreed to be provided to the Client by Eureka Entertainment Ltd;
“Supplies” means the Goods and/or Services to be supplied under the Contract; and
“Working Day” means a day which is not a Saturday, Sunday or public holiday in England and “Working Hour” means an hour between 9am and 5pm during a Working Day
PART B PHYSICAL MEDIA DISTRIBUTION SERVICES TERMS FOR RETAIL CLIENTS
1.1 The Conditions set out below shall apply without variation to every contract entered into by Eureka Entertainment Ltd for the supply of Products to the Client unless a variation thereto is expressly agreed in writing by a director of Eureka Entertainment Ltd. These Conditions shall apply notwithstanding any inconsistency between them and the terms and conditions of any form of contract sent by a Client of Eureka Entertainment Ltd.
2.1 A quotation for the Goods given by Eureka Entertainment Ltd shall not constitute an offer. A quotation shall only be valid for a period of twenty (20) Business Days from its date of issue (Or as agreed in writing via quarterly full catalogue pricing notifications).
2.2 The Client’s order for Products constitutes an offer by the Client to purchase the Products in accordance with these Conditions. The Client is responsible for ensuring that the terms of the order and any applicable specification submitted by the Client are complete and accurate.
2.3 Eureka Entertainment Ltd shall not be obliged to accept any order from the Client. The Client’s order shall only be deemed to be accepted when Eureka Entertainment Ltd issues a written acceptance of the order, or, if earlier, when Eureka Entertainment Ltd commences work on or appropriates Products to the Contract, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties and the Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Eureka Entertainment Ltd which is not set out in the Contract.
3.1.Where an order is accepted, Eureka Entertainment Ltd will endeavour to adhere to any delivery dates agreed but does not guarantee that any Products will be delivered by such dates and Eureka Entertainment Ltd shall not be liable for any loss or damage of any kind howsoever arising by reason of any failure on the part of Eureka Entertainment Ltd to deliver at such stated dates.
3.2.Delivery of the Products shall be completed on the Products’ arrival at the location set out in the relevant order or such other location as the parties may agree. Eureka Entertainment Ltd shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Client’s failure to provide Eureka Entertainment Ltd with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
3.3.Products delivered will be deemed accepted by the Client and as fully in accordance with the accompanying advice notes unless Eureka Entertainment Ltd is given notice in writing of the Client’s rejection of the Products within seven days of the date of invoice.
3.4. Eureka Entertainment Ltd may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Client to cancel any other instalment.
3.5. Eureka Entertainment Ltd may consolidate orders and parts of orders for the purposes of delivering Products and may deliver the Products which are the subject of such consolidated orders in one or more parcels as it sees fit.
3.6. Eureka Entertainment Ltd will not be responsible for any loss or damage of Products after delivery, and risk, as distinct from title in them, shall pass to the Client on delivery.
4. TITLE AND RISK
4.1.The risk in the Products supplied shall pass to the Client on delivery. Without limiting the foregoing, the Client shall maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the time of delivery and the Client shall promptly provide written evidence of such insurance to Eureka Entertainment Ltd if requested.
4.2.Legal and beneficial title to the Products supplied by Eureka Entertainment Ltd to the Client shall not pass to the Client until the date when the Client has paid Eureka Entertainment Ltd for:
4.2.1.the Products; and
4.2.2.any other goods or services that Eureka Entertainment Ltd has supplied to the Client.
4.3.Until title passes to the Client, the Client shall:
4.3.1.hold the Products on a fiduciary basis as Eureka Entertainment Ltd’s bailee;
4.3.2.be entitled, unless and until any of the events listed in paragraphs 11.1.1 to 11.1.12 inclusive of this Part B has occurred, to dispose of the Products by way of bona fide sale at full market value to third parties in the ordinary course of its business; and
4.3.3.not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
4.3.4.notify Eureka Entertainment Ltd immediately in writing if it becomes subject to any of the events listed in paragraphs 11.1.3 to 11.1.12 inclusive of this Part B;
4.3.5.segregate and store all Products delivered hereunder in such a way as to ensure that they can be readily identified as the property of Eureka Entertainment Ltd and allow Eureka Entertainment Ltd on reasonable request to access the Products and the storage area to verify the fact that this has been undertaken.
4.4.At any time after any of the events listed in paragraphs 11.1.1 to 11.1.12 inclusive of this Part B has occurred before title to the Products passes to the Client, and without limiting any other right or remedy Eureka Entertainment Ltd may have, Eureka Entertainment Ltd may require the Client to deliver up the Products and, if the Client fails to do so promptly, Eureka Entertainment Ltd may enter any premises of the Client or of any third party where the Products are stored in order to recover them.
5.1. Eureka Entertainment Ltd may invoice the Client for the Products on or at any time after the completion of delivery.
5.2.An invoice shall be deemed conclusively correct and binding on the Client in respect of the Products to which the invoice relates if the Client has not in good faith queried the invoice by notice in writing to Eureka Entertainment Ltd within the applicable credit period as defined in paragraph 6.1 of this Part C, such notice specifying the reason claimed for non-payment together with reasonable evidence to authenticate that claim.
5.3.Invoices shall be subject to correction or amendment by Eureka Entertainment Ltd at any time.
6.1.Subject to paragraph 6.2 of this Part B, the Client shall pay all invoices in pounds sterling to such bank account as Eureka Entertainment Ltd from time to time specifies, in full and cleared funds within the terms stated on the face of the invoice and, if not so stated, within twenty Business Days of the date of the invoice (“the Credit Period”).
6.2.If the Client has a bona fide reason to dispute any invoice:
6.2.1.the Client shall notify Eureka Entertainment Ltd in writing within the credit period stated on the face of the invoice, such notice specifying in reasonable detail the reason for the dispute; and
6.2.2.each of Eureka Entertainment Ltd and the Client shall use its reasonable endeavours in good faith promptly to resolve a dispute concerning any invoice; and
6.2.3.the Client shall pay the undisputed amount of such invoice in accordance with paragraph 6.1 of this Part B.
6.3.Without limiting Eureka Entertainment Ltd‘s remedies if payment is overdue, the Client shall indemnify Eureka Entertainment Ltd against any legal fees and other costs of collection and (as well after as before judgment) shall pay to it a sum equal to any loss suffered by Eureka Entertainment Ltd arising from exchange rate fluctuations and interest on such sum and on the amount overdue at the then current statutory rate, calculated from the date payment fell due until the date of actual payment and Eureka Entertainment Ltd may cancel the Contract and any other contracts with, and suspend deliveries to, the Client.
6.4. Eureka Entertainment Ltd shall be entitled at its discretion to charge interest on any overdue amount at a rate equal to 4% above the base rate of Barclays Bank plc from time to time in force. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
6.5.If the Agreement is a Consumer Transaction within paragraph 2(i) Consumer Transactions (Restrictions on Statements) Order 1976 (as amended) nothing in this clause 9 or otherwise in the Contract affects or will affect the statutory rights of the Client.
6.6.No statutory or other warranty, condition or representation of any kind whatsoever (including without limitation any relating to satisfactory quality, suitability or fitness for any purpose of the Client) is given or to be implied. The only warranties, conditions or representations made are those expressly stated to be such and contained within the Contract documents.
7.1.The price of Products sold and purchased hereunder shall be fixed from time to time by Eureka Entertainment Ltd as quoted to the Client or, if no price is quoted, the price shall be the price set out in Eureka Entertainment Ltd’s published price list in force as at the date of delivery. Eureka Entertainment Ltd may, by giving notice to the Client at any time before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
7.1.1.any request by the Client to change the delivery date(s), quantities or types of Products ordered; or
7.1.2.any delay caused by any instructions of the Client or failure of the Client to give Eureka Entertainment Ltd adequate or accurate information or instructions or otherwise to comply with its obligations.
7.2.Prices are shown on invoice net of all discounts given and are exclusive of VAT and all other tax and duty which, if applicable, will be charged at the applicable rate. The price of the Products is exclusive of the costs and charges of transport of the Products, which shall be invoiced to the Client. All invoices must be paid in full without deduction, withholding, counter-claim, credit or set off.
9.1.Subject to the other provisions of this paragraph 9, if:
9.1.1.the Client gives notice in writing to Eureka Entertainment Ltd, accompanied by the applicable “faulty” report form properly completed, within three months of delivery and within a reasonable time of discovery that some or all of the Products are defective in design, material and/or workmanship;
9.1.2. Eureka Entertainment Ltd is promptly given a reasonable opportunity of examining such Products; and
9.1.3.the Client (if asked to do so by Eureka Entertainment Ltd) promptly returns such Products to Eureka Entertainment Ltd‘s place of business, then Eureka Entertainment Ltd shall, at its option, refund the price of the defective Products in full or, if and to the extent that Eureka Entertainment Ltd has the benefit of any warranties from its supplier of the Products, co-operate with and assist the Client to a reasonable extent in enforcing such warranties.
9.2. Eureka Entertainment Ltd reserves the right to recover the costs incurred in cases where any returned Products prove not to be materially defective. Without prejudice to paragraph 9.1 of this Part B, Eureka Entertainment Ltd will not accept any liability for damage arising as a result of alteration of the Products without the written consent of Eureka Entertainment Ltd, wear and tear, misuse, wilful damage, unsuitable storage conditions or the negligence or wilful default of the Client or any third party.
9.3.The Client acknowledges that Walker Logistics Ltd is not the manufacturer of the Products and that the design, specification, material and workmanship of the Products is outside Walker Logistics Ltd control: accordingly Walker Logistics Ltd gives no warranty that the Products shall be free from defects in design, material and workmanship.
9.4 The client will be responsible for any costs involved in the transportation & collection of non-faulty or excess stock returned to Walker Logistics Ltd.
10.COPYRIGHT AND TRADEMARKS
10.1.The Client shall exercise all due diligence in protecting the intellectual property rights in and to the Products, so far as it lies in its power, and without limitation the Client shall promptly report to Eureka Entertainment Ltd in writing any illegal copying of Products or contravention of the copyright restriction notices appearing on the Products that comes to its notice.
10.2.The Client shall not alter, edit or add to the sight and sound recordings on or relating to and supplied with any Products (including but not limited to advertisements or promotional material in relation to the marketing of any Products).
11.1.If the Client becomes subject to any of the following events, or Eureka Entertainment Ltd reasonably believes that the Client is about to become subject to any of them and notifies the Client accordingly, then, without limiting any other right or remedy available to Eureka Entertainment Ltd, Eureka Entertainment Ltd may cancel or suspend all further deliveries under any contract between the Client and Eureka Entertainment Ltd without incurring any liability to the Client, and all outstanding sums in respect of Products delivered to the Client shall become immediately due:
11.1.1.the Client fails to pay any invoice on or before the due date for such invoice;
11.1.2.the Client is in material breach of any of these Conditions;
11.1.3.the Client suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
11.1.4.the Client commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
11.1.5.(being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Client, other than for the sole purpose of a scheme for a solvent amalgamation of the Client with one or more other companies or the solvent reconstruction of the Client;
11.1.6.a creditor or encumbrancer of the Client attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
11.1.7.an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Client;
11.1.8.a floating charge holder over the Client‘s assets has become entitled to appoint or has appointed an administrative receiver;
11.1.9.a person becomes entitled to appoint a receiver over the Client‘s assets or a receiver is appointed over the Client‘s assets;
11.1.10. any event occurs, or proceeding is taken, with respect to the Client in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in paragraph 11.1.3 to clause 11.1.10 (inclusive) of this Part B;
11.1.11.the Client suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
11.1.12. the Client‘s financial position deteriorates to such an extent that in Eureka Entertainment Ltd ‘s opinion the Client‘s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
11.1.13. any act or conduct of the Client and/or its employees, agents or sub-contractors, in the reasonable opinion of Eureka Entertainment Ltd, interferes with or threatens any of Eureka Entertainment Ltd’s and/or its suppliers’ rights, or is in breach of any applicable law, or materially and/or adversely affect the interests and/or reputation of Eureka Entertainment Ltd and/or its suppliers.
LIMITATIONS OF LIABILITY
1. LIMITATION OF LIABILITY, WARRANTIES AND INDEMNITY
1.1.Nothing in these Conditions shall limit or exclude Eureka Entertainment Ltd‘s liability for:
1.1.1.death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
1.1.2.fraud or fraudulent misrepresentation;
1.1.3.breach of the terms implied by section 12 of the Sale of Goods Act 1979;
1.1.4.defective products under the Consumer Protection Act 1987; or
1.1.5.any matter in respect of which it would be unlawful for Eureka Entertainment Ltd to exclude or restrict liability.
1.2.Subject to paragraph 1.1 of this Part C, Eureka Entertainment Ltd’s liability to the Client for breach of any Contract, these Conditions or otherwise in connection with the supply of Products (arising for whatever reason including without limitation by way of negligence or any other tort, breach of contract, misrepresentation, breach of statutory duty, indemnity or otherwise) shall be limited to the price paid by the Client for the Products to which such liability relates or (as applicable) shall be limited to their repair or, replacement or if this is not possible. Without limiting the foregoing Eureka Entertainment Ltd shall not be liable for any lost or anticipated profits or savings or any special incidental or consequential losses or damages (including without limitation loss of value of any Goods packaged by Eureka Entertainment Ltd on behalf of the Client, loss of data, loss of use of any asset, loss of revenue, profit or goodwill, business interruption, management costs or third party liability).
1.3.Subject to paragraph 1.1 of this Part C, Eureka Entertainment Ltd shall not be liable for any loss of general profit, loss of anticipated benefit, loss of revenue, damage to reputation, loss of goodwill, business interruption, management time, third party liability, loss of use of any asset or for any consequential, special, punitive or indirect loss.
1.4.Subject to paragraph 1.1 of this Part C, neither party shall be liable for any failure or delay in performing its obligations under any Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party‘s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes, failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors caused by an event described in this paragraph 1.4 of this Part C.
1.5.The Client warrants that it shall not in respect of Products which are videograms:
1.5.1.sell, authorise, knowingly permit or allow the sale of any Products to consumers prior to the first videogram release in the relevant territory for such Products as notified to the Client; or
1.5.2.alter the Products (including their content and/or packaging) in any way.
1.6.The Client shall indemnify Eureka Entertainment Ltd and its suppliers on demand from and against any and all liability in relation to any breach of paragraph 1.5 of this Part C.
1. GENERAL PROVISIONS
1.1. Eureka Entertainment Ltd shall not be liable for any failure to perform any or all of its obligations under a Contract by reason of any fire, flood or other Act of God, armed conflict, civil unrest, industrial action, equipment or supply difficulties or failure, order of public authority, or any cause whatsoever beyond its reasonable control. In such circumstances Eureka Entertainment Ltd may terminate the Contract whereupon the Client shall pay a sum equal to the costs to Eureka Entertainment Ltd to date of performing the Contract and Eureka Entertainment Ltd’s liability shall be limited to repayment of any sums paid for undelivered Goods, Products or unperformed Services, less such costs.
1.2. Eureka Entertainment Ltd’s rights shall not be prejudiced by any indulgence, forbearance or previous waiver extended to the Client. The Client shall not assign, charge, or otherwise dispose of any Contract or any of its rights thereunder without Eureka Entertainment Ltd ’s prior written consent.
1.3.All notices or other communications under a Contract shall be in writing in English addressed to the addressee’s registered office or address stated in the Order (or other address notified to the other party) and shall be sent by hand (and thereby be deemed served when properly left at such address) or by first class pre-paid post (and thereby be deemed served 48 hours after posting).
1.4.No person who is not a party to the Contract shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy which is available apart from that Act.
1.5.Whenever the due date for payment of any amount under this Agreement is not a Working Day that payment shall instead be due on the next following day which is a Working Day.
1.6.Not more frequently than once in any calendar year Eureka Entertainment Ltd by written notice to the Client may change any provisions of these Conditions; any such change will have effect in respect of all Orders issued more than thirty (30) days after the date upon which such notice is given by Eureka Entertainment Ltd to the Client.
1.7.The obligations of the Client and the rights of Eureka Entertainment Ltd under these Conditions are independent of and shall not be affected by any other rights or securities from time to time held by Eureka Entertainment Ltd or any affiliate of Eureka Entertainment Ltd from the Client or any other person.
1.8.The Contract shall be governed and construed in all respects in accordance with the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the courts of England provided that (and without prejudice thereto) Eureka Entertainment Ltd shall be entitled to apply for any provision of conservatory measures or interim relief in any other court having jurisdiction.