| 1.
Orders |
| 1.1 |
Each
order is deemed to incorporate these Conditions and constitutes an
offer by the Buyer to purchase the Goods referred to in the order
subject to these conditions. |
| 1.2 |
Orders
will be accepted only by (1) written confirmation from an authorised
representative of Technicolor or (2) shipment of goods in accordance
with the terms set forth in these conditions. |
| 1.3 |
Any
order made by the Buyer which contains any term at variance with or
in addition to these conditions will be deemed to be an invitation
to Technicolor to make an offer based upon the order. |
| 1.4 |
Buyer
hereby waives any and all objections to these Conditions. |
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| 2.
Specifications |
| 2.1 |
All
materials supplied by the Buyer to Technicolor to manufacture the
Goods must comply with the specifications published by Technicolor
from time to time and in force at the time of order placement, unless
otherwise agreed in writing between Technicolor and the Buyer. |
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| 3.
Price Of The Goods |
| 3.1 |
The
price of the Goods is either as set out in the Order or as confirmed
by Technicolor following receipt of the Order. |
| 3.2 |
All
prices are exclusive of any applicable tax (including Goods &
Services Tax), which the Buyer is additionally liable to pay to Technicolor
to make an offer based upon the Order. |
| 3.3 |
If
the Buyer wishes to claim an exemption from Goods & Services Tax,
appropriate evidence of exemption must be provided to Technicolor
at the time the Order was made. |
| 3.4 |
If
Orders are canceled after the time Technicolor has begun processing
or manufacturing, Buyer shall be responsible for payment and disposition
of all completed work in progress and all materials purchased by Technicolor
to fulfill said Orders. |
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| 4.
Payment |
| 4.1 |
Technicolor
will issue invoices upon shipment of products, unless Buyer delays
shipment, in which case invoices will be issued upon completion of
manufacturing. Charges for services performed by Technicolor shall
be invoiced upon completion of those services. Unless otherwise noted,
should Buyer have trading account with Technicolor, payment is due
within thirty (30) calendar days of the invoice date. In the event
that the Buyer fails to make payment in full by the payment due date,
then interest on the unpaid amount shall commence to accrue in an
amount equal to the lesser of; |
|
(i)
|
the
highest rate permitted by law; or |
|
(ii)
|
a
rate of one and one-half percent (1 1/2%) per month (18% annually)
until the date that the amount is paid in full. |
|
Claims
for adjustments in amounts due Technicolor must be presented to Technicolor
in writing within five (5) business days prior to the due date of
the invoice. Any credit on the Buyer's account must be claimed or
used within twelve (12) months from the shipping date of the goods
to which the credit relates. In addition to all other rights Technicolor
has under these Conditions or applicable law, Buyer hereby grants
Technicolor a lien, dependent on possession, on all materials as collateral
for payment of all amounts due to Technicolor from Buyer. Technicolor
reserves the right to delay or withhold shipment of any order if payment
in full has not been received on any prior order. In the event any
dispute concerning the obligations of the parties hereunder results
in the commencement of legal action, the prevailing party in any such
legal action shall be entitled to recover the reasonable attorney's
fees and costs incurred by it in such legal action. |
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| 5.
Delivery |
| 5.1 |
The
price for the Goods is either: |
|
(a)
|
if
the Order specifies a single delivery address is Sydney or Melbourne,
on a delivered basis; |
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(b)
|
if
the Order specifies a delivery address elsewhere in Australia, on
an ex-works basis; or |
|
(c)
|
if
the Order specifies a delivery address outside Australia, on an FOB
basis. |
| 5.2 |
If
the Buyer fails to take delivery of the Goods within 30 (thirty) days
of invoices, then without prejudice to any right or remedy available
to Technicolor, Technicolor may store the goods until actual delivery
and charge the Buyer for the reasonable costs (including insurance)
of storage. |
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| 6.
Risk & Property |
| 6.1 |
Risk
& damage to or loss of the Goods passes to the Buyer: |
|
(a)
|
in
the case of Goods to be delivered to the Buyer's address at the time
of delivery, or, if the Buyer wrongfully fails to take delivery of
the Goods, the time Technicolor has tendered delivery of the Goods; |
|
(b)
|
in
the case of Goods to be delivered to a carrier for export, at the
time of delivery to the carrier. |
| 6.2 |
Technicolor
shall retain title to all tooling, including masters, stampers and
other tooling produced by Technicolor. Technicolor shall also retain
all rights to computer programs, specifications or data developed
by Technicolor in or for the performance of any Order, notwithstanding
whether such computer programs, specifications or data were developed
by Technicolor for Buyer or otherwise. |
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| 7.
License |
| 7.1 |
Buyer
grants Technicolor a royalty-free, non-transferable license to reproduce
and distribute copies of Materials (as hereinafter defined) to the
extent necessary for Technicolor to perform its obligations under
the Order. |
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| 8.
Warranty, Disclaimer And Limitation Of Liability |
| 8.1 |
Technicolor
warrants that Goods manufactured under these Conditions will be free
from manufacturing defects in accordance with general industry standards
for a period of one year from the date of shipment by Technicolor.
As Buyer's sole remedy, and as Technicolor's sole liability for breach
of this warrant, Technicolor will, as its option, replace or refund
the amount paid by Buyer to Technicolor for any Goods that are returned
to and found defective by Technicolor. |
|
Except
as otherwise expressly provided in this paragraph, Technicolor disclaims
all warranties, whether express or implied, including without limitation
any warranty as to performance, mechantability or fitness for a particular
purpose. (Technicolor does not warrant any content preparation services
and the product thereof unless such services have been contracted
by Technicolor. Technicolor makes no representations or warranties
with respect to the effectiveness of any copyright protection processes
and shall not be responsible or liable for any effect they might have
on the performance of the Buyer's content or the optical disc goods).
In no event shall Technicolor be liable for, and Buyer expressly waives
any claim for, indirect, incidental, punitive, exemplary, special
or consequential damages, including but not limited to lost data,
programs or other information or lost profits. Notwithstanding any
other provision of these Conditions to the contrary, and in no event
and under no circumstances, including but not limited to, the incurrence
by the Buyer of damages due to loss of data, programs or other information,
damages due to business, interruption or damages due to a delay or
the failure of deliver, shall Technicolor's liability to Buyer under
any theory exceed the amount paid by Buyer to Technicolor's pursuant
to Technicolor invoice(s) for the related services or materials. No
action regardless of, or arising out of any claimed breach of these
Conditions or transactions may be brought about by either party more
than one (1) year after the cause of action has occurred. |
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| 9.
Force Majeure |
| 9.1 |
Technicolor
will not be liable to the Buyer or be deemed to be in breach of the
Contract by reason or any delay in performing, or failure to perform,
any of Technicolor's obligations in relation to the Goods, if the
delay or failure was due to any cause beyond Technicolor's reasonable
control including but without limitation act of God, explosion, flood,
tempest, fire or accident, war or threat of war, sabotage, insurrection,
civil disturbance or acquisition, acts restrictions, regulation, by-laws,
prohibitions or measure of any kind of the part of the governmental
or local authority, strikes, lockouts or other industrial actions
or trade disputes (whether involving employees of Technicolor or of
a third party), difficulties in obtaining raw materials, labour, fuel,
parts or machinery. |
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| 10.
Interpretation |
|
In
these conditions 'Buyer' means the person or corporation whose order
for the purchase of the Goods is accepted by Technicolor. |
|
'Conditions'
means the standard terms and conditions of sale set out in this document
and, (unless the context otherwise requires), includes any special
terms and conditions agreed in writing between the Buyer and Technicolor. |
|
'Goods'
means goods, which Technicolor is to supply in accordance with the
Order. |
|
'Technicolor'
means Technicolor Pty Ltd (ACN 23 000 978 343) or it's successor or
assign. |
|
'Order'
means the order of the Buyer to which these conditions apply. |
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| 11.
Confidentiality |
|
|
If
Buyer discloses confidential information to Technicolor and clearly
identifies such information in writing as "confidential",
Technicolor shall use all reasonable care to ensure such information
is disclosed only to Technicolor employees requiring access to such
information to render the services or manufacture product requested
by Buyer. Nothing herein shall limit Technicolor's right to use or
disclose information that; |
|
(a)
|
becomes
available to the public without fault of Technicolor; |
|
(b)
|
is
lawfully acquired by Technicolor from a third party; |
|
(c)
|
is
in the possession of Technicolor at the time of disclosure by Buyer;
or |
|
(d)
|
is
developed by or on behalf of Technicolor by persons who have not received
Buyer's confidential information |
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| 12.
Claims |
|
Returns
of stock will not be accepted without prior authorisation of all claims
from your individual Account Manager. Statements of short supply will
only be considered by Technicolor if received in writing seven (7)
days from the date of the invoice. |
|
(a)
|
Return
of first quality stock (incorrect goods): Stock must be in original
packaging, in good order and condition and be accompanied by documentation
showing: |
|
(i)
|
Buyer's
names, address and customer codes. |
|
(ii)
|
Invoice
number. |
|
(iii)
|
Reason
for return and authorisation. |
|
(b)
|
Reason
for faulty stock: |
|
(i)
|
Any
claims for faulty stock must be fully documented. |
|
(ii)
|
All
items will be subject to inspection before credit can be considered
and accordingly acceptance of the goods by Technicolor shall not constitute
acceptance of credits. |
|
(c)
|
Price
discrepancies: In the case where a Buyer feels that an incorrect quantity
or charges has been levied for goods, the Buyer will submit payment
on the due date of the amount the Buyer feels should have been charged. |
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| 13.
Materials Provided By Buyer |
|
|
For
purposes of this Section 13 "Materials" means all items
delivered to Technicolor in whatever form by or for Buyer to use in
connection with production, printing and/or packaging of videocassettes
and/or optical discs hereunder, including, without limitation, master
media, artwork and packaging materials. |
|
(a)
|
Buyer
shall retain title to all Materials, including the content of such
Materials. Buyer warrants that it owns all Materials and has the right
to deliver all Materials to Technicolor. Buyer also warrants that
it owns all copyrights in the contents of Material (including without
limitation any computer code embedded therein) or has the unrestricted
right to permit Technicolor to perform the services requested hereunder.
Notwithstanding anything to the contrary contained herein, Technicolor
shall not be obliged to provide services for any titles containing
obscene matter (i.e. lewd, lascivious, sexually explicit or excessively
violent content) or matter which would be rated by the Office of Film
& Literature Classification (if unrated, Technicolor shall determine
in its sole discretion such rating). Buyer agrees to indemnify, defend
and hold Technicolor harmless from and against any and all actions,
suits, claims, liabilities, damages, losses and expenses (including
reasonable attorney's fees) arising directly or indirectly out of
or in connection with any claim that the services rendered or product
manufactured for Buyer by Technicolor violate any local, state or
federal law, rule or regulation or violate rights (including copyrights)
of third parties, including without limitation, any liability for
slander, defamation, invasion of privacy or infringement of any patent,
copyright, trademark or other proprietary right of third party. |
|
(b)
|
If
Buyer is to provide artwork to Technicolor in connection with the
production of videocassettes and/or disc label printing or packaging
of videocassettes and/or optical discs hereunder, Technicolor must
receive such artwork prior to the commencement of work by Technicolor.
If Buyer is to provide Materials for label printing or the final packaging
of optical discs produced hereunder, unless otherwise noted, such
Materials must be received by Technicolor not more than one (1) week
after the delivery of the applicable master media to Technicolor. |
|
(c)
|
Buyer
is solely responsible for delivering Materials to and receiving Materials
from Technicolor hereunder, at Buyer's request and sole risk, Technicolor
will store Materials as long as Technicolor is providing services
hereunder, at any place that Technicolor deems appropriate. Each month,
Technicolor shall calculate, on a rolling six (6) month basis, that
quantities of each of the Materials used to fulfill Buyer's orders
("Usage Level"). If, in any month (or portion thereof),
the actual inventory level for any of the Materials exceeds the corresponding
Usage Level for said Materials ("Excess Inventory"), unless
otherwise noted, Buyer shall be charged $10.00 per pallet (or portion
thereof) for the Excess Inventory ("Storage Charges"). |
|
|
Technicolor
shall separately invoice Buyer for the Storage Charges at the end
of each month. If required, Buyer will receive monthly inventory reports
to monitor and adjust levels prior to invoicing. Buyer agrees to pay
all such invoices within thirty (30) days after the date of the invoice.
Technicolor may require Buyer to retake possession of any or all the
Excess Inventory and, upon failure of Buyer to remove said Excess
Inventory after thirty (30) days written notice by Technicolor to
Buyer, Technicolor may, in its sole discretion, either; |
|
(i)
|
send
such Excess Inventory to a public warehouse or to a storage company
to be held in the name of, for the account of, and at risk of, Buyer
at a rate obtained in good faith by Technicolor; or |
|
(ii)
|
destroy
such Excess Inventory. Buyer agrees that because of the impracticability
of Technicolor storing Materials for all of its Buyers and because
Buyer has the ultimate responsibility for its Materials, these procedures
for disposition of Materials are responsible and fair. |
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