AV RIVIERA TERMS AND CONDITIONS 2012
AV Riviera will undertake the provision of and the maintenance and repair of the equipment, servicing and any additional emergency services that may be required as set out in and previous quote, specification or proposal, at 'THE CUSTOMER LOCATION' and will provide services upon payment of the fees and charges as set out in the Fees Schedule attached which will be in accordance with the terms and conditions.
Acceptance of these terms and conditions will constitute deemed acceptance of AV Rivieras terms and conditions including any contained in the initial quote and proposal for the current job delivered to the customer and those on the AV Riviera website which are incorporated into this agreement.
IT IS AGREED AS FOLLOWS:
The following words and phrases shall have the following meanings:
Additional Services - means those additional services to be agreed between the partie that may become necessary or are incidental to the items listed i the schedule attached to this agreement for which an extra fee will become chargeable to the customer (for example, an additional Skybox to be installed).
Call Out - means a call to AV Riviera requesting assistance with the System and falls under the Agreement and is within normal business hours as per the Schedule. In this case, the Call Out rates fall within the yearly maintenance fee where the faults lies with AV Rivera. In the event that AV Riviera is called to the location as a result of the Customer's negligence or misuse of the System or because of faulty equipment provided by the Customer or another party, AV Riviera will charge the Customer an additional call out fee with the addition of travel expenses. Where a call out is outside business hours an additional charge will be levied to be agreed by the parties if not already contained in the Schedule. Time starts on arrival at the Location.
AV Riviera online terms and conditions - means the terms and conditions found at www.avriviera.com
Commencement date - means the date as inscribed at the top of the Services Agreement
Consultancy Services - means those services and/or time(s) of attendance of AV Riviera personnel at the Location set out in the Schedule
The Customer ‐ the person, firm or company as described in this Agreement above
Emergency Services ‐ means an additional service which is available to the Customer outside of business hours which will attract an additional charge to be determined at the time of the emergency event and agreed with the Customer in advance of attending the Location. This will be when AV Riviera is requested to attend the Location by the customer or any person acting on the customer's behalf in circumstances where there is a genuine emergency whereby the fault in the System has occasioned a situation that could put people or property at risk and could not be defined as a mere "call out". When the emergency work requires Equipment not immediately available and it is outside working hours, AV Riviera will take reasonable steps to leave the system safe and arrange to return and fix the fault the following day. The return visit will be charged at the appropriate rate according to the fee schedule and will be exclusive of travel expenses.
Equipment ‐ means the hardware specified in the Schedule as amended by such additions to and deletions there from as the parties may here after agree in writing.
Intellectual property rights ‐ means all copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered, including (without limitation) patents, trademarks, service marks, trade names, registered design and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world
Location ‐ the premises in which the Equipment/System is installed described in the Schedule as the Location or such other premises in or to which the Equipment/System is installed or moved with the prior consent of AV Riviera.
Maintenance Services ‐ means those support services specified in the Schedule attached to relevant Services Agreement
Normal Business Hours ‐ 0900 hours to 1700 hours Monday to Friday (inclusive) but excepting all Bank and Public Holidays and Christmas Eve and New Year's Eve where they do not fall on a Saturday or Sunday. The opening hours for logging service calls are between 0900 and 1700.
Term of Agreement ‐ means the initial 12 month term of the Agreement and any subsequent periods of AV Riviera's services under this Agreement as described in Clause 2
Response Time ‐ the number of hours (set out in the Schedule) falling within Normal Business Hours within which AV Riviera's engineer will attend the Location to deal with a fault in one or more items of the Equipment/System commencing from the time when AV Riviera shall have first responded to the Customer's report of fault.
Schedule - means the Schedule attached itemising equipment, maintenance services and fees and all continuation sheets annexed thereto.
Servants or Agents ‐ means a person/s who has received the power to act on behalf of a party, binding that party as if he or she were themselves making the decisions
Software ‐ means the software developed or customised by AV Riviera to the specification of the Customer as specified in the Schedule
Services ‐ means those services specified in the Schedule
Systems ‐ means hardware and/or software specified in the Schedule as amended by such additions to and deletions there from as the parties may hereafter agree in writing.
Travel Expenses ‐ means those expenses incidental to travelling to the Location for work that falls outside the scope of this Agreement, namely call outs, emergency services and any work outside of the M25 in the UK or abroad. These rates are listed in the fees Schedule but where the expense is exceptional it will be agreed with the Customer before it is incurred.
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2. Commencement and Term of Agreement
This Agreement shall be for the period commencing on the Start Date as specified in the Schedule and shall AV Riviera, Terms & Conditions 2
continue thereafter for successive periods of twelve months subject to agreement by both parties unless and until terminated by either party giving the other at least three months' prior written notice of termination expiring at the end of the initial term or (if not then determined) at the end of any subsequent period of twelve months thereafter.
3. Services to be provided
AV Riviera hereby agrees during the continuance of this Agreement and subject to the terms of this Agreement (and particularly Clause 9.1 below) and the Schedule attached to the Agreement, that it shall use all reasonable endeavours to provide the following and maintain the Equipment in good working order and in particular:
3.1 Supply the agreed Specified Equipment to the Customer
3.2 Provide the Audio Visual engineering / installation and maintenance services on the Specified Equipment as
itemised in the Schedule attached to this Agreement but at least once in every period of 12 months, or if agreed and stated, additional service visits, if deemed necessary by either party, to inspect, test and where necessary repair the System
3.3 Provide the relevant documentation
3.4 Provide Support Services and carry out any Additional Services where agreed by the parties
3.5 In the event of the Customer notifying AV Riviera of a fault in the Equipment/Systems which cannot be
remedied over the telephone or by remote support, whether this be a standard call out or in an emergency, AV Riviera shall within the Response Time attend the Location, for the purpose of carrying out remedial maintenance to the Equipment, including replacement of unserviceable parts.
3.6 Provide any Emergency Service as may be required when requested to attend the System(s) by the customer or any person acting on the customer's behalf, when such repairs are necessitated by any act or default of the Customer, his Servants or Agents, a charge will be incurred.
3.7 Preventative maintenance will be carried out on the Equipment/System at the discretion of AV Riviera or as AV Riviera may specify is within the Consultancy Services referred to in the Schedule.
4.1 AV Riviera shall take reasonable steps to ensure that all of its personnel engaged under this Agreement have the necessary insurances, skills, expertise and diligence to undertake such work and will conform to the professional standards generally observed in the industry for similar services;
4.2 Comply with the provisions in this Agreement relating to Confidential information.
5. Fees and Charge
5.1 The Customer shall pay to AV Riviera the fee referred to in the Fees Schedule in Sterling, together with Value Added Tax any other relevant duties or taxes upon the supply of goods or services at the rate prescribed by law and shall additionally pay such additional sum(s) within 30 days of receipt of a valid invoice as may become due to AV Riviera under any variation of charges accepted by the Customer during the period of this Agreement. Such fees shall not include the following (which shall be the subject of a separate Invoice together with Value Added Tax as aforesaid in each case payable thirty days after its date).
5.1.1 Visits occasioned by the Equipment/System having been reported faulty without adequate reason or where AV Riviera's Engineer has not been able to gain access to the Equipment at the Location during Normal Business Hours or where the defect is not covered by the Services Agreement
5.1.2 Visits made at the specific request of the Customer outside Normal Business Hours, for example for Emergency services
5.1.3 Repairs arising from accidental or abnormal use or misuse of the Equipment/System or set up errors caused by the Customer or third parties
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5.1.4 Any repairs necessitated by a breach of any of the conditions of this Agreement by the Customer.
5.2 For the sake of clarity clause 8.6 below will apply in every case.
5.3 No Equipment order which has been accepted by AV Riviera Limited may be cancelled by the Customer
except with the agreement in WRITING of AV Riviera Limited and on terms that the Customer shall indemnify AV Riviera Limited in full against all loss (including loss of profit), costs (including the cost of all labour and material used), damages, charges and expenses incurred by AV Riviera Limited as a result of cancellation.
5.4 Where there are sums due to AV Riviera from the Customer which have not been paid on the due date, AV Riviera will exercise its statutory rights to claim interest (currently at 8% over the current Bank of England base rate) on the gross amount outstanding and compensation for recovery costs including any legal or court costs under the late payment legislation if money owed is not received by the agreed date and under the terms of this Agreement which to avoid any doubt will be deemed to include any terms contained in the relevant invoice/s. Alternatively AV Riviera will be entitled under this Agreement to compound interest at the rate of 4% over the daily base rate of the Bank of England if this is more than the current statutory entitlement.
5.5 Where there are sums due and outstanding to AV Riviera Limited from the Customer and legal title has not yet passed accordingly to the Customer in any Equipment, configuration or the System, AV Riviera Limited reserve the right to disable or shut down the System remotely without notice to the Customer.
6. Variation of Fees and Charges and additional services
6.1 AV Riviera shall be entitled to increase and/or decrease the fees and charges under this Agreement having regard to its cost changes in labour and/or materials and/or Equipment at any time to take effect for the period starting 30 days after written notice of such change, which shall not be effective until the expiry of the initial 12 month term of the Agreement.
6.2 AV Riviera shall also be entitled to increase and/or decrease the fees and charges under this agreement having regard to additions to and deletions from the Equipment listed in the Schedule and/or maintenance Schedule from time to time. AV Riviera shall upon any addition or deletion prepare and submit to the Customer a revised schedule of Equipment and fees incorporating the addition or deletion and the change in charge which the Customer shall sign by way of acceptance and return to AV Riviera within 21 working days of receipt. A failure by the Customer to sign and return such amended Schedule (save for the reason of its incorrectness which will promptly be notified to AV Riviera) shall be a breach of this Agreement entitling AV Riviera to withhold its services until the amended Schedule of Equipment has been signed by the Customer and delivered to AV Riviera.
6.3 AV Riviera shall be entitled to additional fees for any emergency work, as defined above, required by the Customer on the same terms as in clause 5 and as agreed in advance of attendance at the Location by both parties.
7. Legal Title and risk
7.1 The risk in the Equipment shall pass to the Customer on completion of delivery.
7.2 Title to the Equipment shall not pass to the Customer until AV Riviera has received payment in full in
accordance with clause 5. (in cash or cleared funds) for:
7.2.1 the Equipment ; and
7.2.2 any other goods or services that AV Riviera has supplied to the Customer in respect of which
payment has become due.
7.3 Until title to the Equipment has passed to the Customer, the Customer shall:
7.3.1 hold the Equipment or any materials on a fiduciary basis as AV Riviera's bailee for any unpaid
balance the Customer may owe to AV Riviera Limited;
7.3.2 store the Equipment separately from all other goods held by the Customer so that they remain
readily identifiable as AV Riviera's property;
7.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment;
7.3.4 maintain the Equipment in satisfactory condition and keep them insured against all risks for their full
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price from the date of delivery;
7.3.5 notify AV Riviera immediately if it becomes subject to administration or insolvency; and
7.3.6 give AV Riviera such information relating to the Equipment as it may require from time to time,
7.3.7 If before title to the Equipment passes to the Customer the Customer becomes unable to pay its
debts to creditors, becomes subject to insolvency proceedings, bankruptcy, administration, receivership, any court proceedings in any jurisdiction whatsoever that may affect its ability to meet its debts, or the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Equipment has not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy AV Riviera may have, AV Riviera may at any time require the Customer to deliver up the Equipment and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Equipment is stored in order to recover them.
7.4 AV Riviera will be entitled to retain a general lien on the Customer's equipment or materials in its possession for any unpaid balance the Customer may owe to AV Riviera Limited. AV Riviera shall be entitled to see such equipment or materials in the event that payment is not made in full within 28 days of written notice given to the Customer of its intention to exercise the lien. The proceeds of sale may be taken by AV Riviera as reimbursement for expenses of exercise of the lien and the sale and to go towards payment of the said balance, and AV Riviera shall account for any surplus.
8. Customer Obligations, warranties and liabilities
8.1 Where the Equipment or any part thereof is not the subject of a supply by AV Riviera the Customer warrants to the best of the his/her knowledge and belief that upon becoming Equipment (or part thereof) under this Agreement the same is free of fault or defect and is working efficiently or that all known inherent or recurring faults and defects have been notified in writing to AV Riviera prior to the execution of this Agreement.
8.2 The Customer shall upon becoming aware of any fault in the Equipment immediately notify AV Riviera of that fault.
8.3 The Customer shall make available to AV Riviera all relevant documentation and systems data relating to the Equipment and shall ensure the co-operation of staff familiar with the Customer's programs and applications.
8.4 The Customer shall indemnify and keep indemnified on a full and unqualified basis AV Riviera against any and all actions, claims, demands, costs, charges and/or expenses arising out for any loss or damage incurred by the reason of any infringement or alleged infringement by the Customer of any Intellectual Property right in relation to the Services.
8.5 The Customer shall complete and return all manufacturers and supplier's warranty or guarantee registration documentation of which the customer is in receipt.
8.6 The Customer shall ensure it makes and retains regular verified backups of all data stored on the equipment. The Customer accepts that any loss of data through failure to back up the data stored on the equipment or through incorrect use of the equipment is its own responsibility and will not in any way effect the payment of fees owed to AV Riviera and the Customer acknowledges that it should take out such comprehensive data loss insurance protection as reasonably may be considered prudent in the best interests of the Customer.
8.7 The Customer shall ensure that no alterations, adjustments, interference, repairs, alterations to system software or maintenance shall be carried out in relation to the Equipment/System other than by persons employed or authorised by AV Riviera without the written consent of AV Riviera, such consent not to be unreasonably withheld.
8.8 No connection other than that specifically approved by the manufacturer of the Equipment shall be made or carried out to the Equipment without the written consent of AV Riviera, such consent not to be unreasonably withheld.
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8.9 The Customer shall have the same responsibility for the safety and well being of any agent or employee of AV Riviera upon the Customer's premises and at the Location as that of an employee of the Customer or any visitor invited onto the premises and the Customer will indemnify AV Riviera from and against all loss and liability of AV Riviera arising directly or indirectly from any act or incident thereon howsoever occasioned.
8.10 To arrange and maintain comprehensive insurance against all normal risks to the premises, and to all persons on the premises and shall maintain all policies of insurance with a reputable insurance company covering all the matters subject to the Customer's indemnities or compensation obligations under this Agreement and shall produce evidence of the policy document if so requested by AV Riviera.
8.11 All equipment is bound by manufacturers standard warranty unless otherwise specified and approved by AV Riviera and the Customer. For example, the Kaleidescape extended warranty enabling free replacement of parts under warranty.
9. Condition and use of the Equipment
9.1 The Customer warrants that the Equipment will be maintained in good working and serviceable order and that all faults and defects occurring will immediately be notified to AV Riviera.
9.2 The Customer shall ensure that environmental and power supply conditions suitable for the Equipment/System are maintained and the operation and care of the Equipment is performed in accordance with the manufacturer's recommendations by adequately trained personnel.
10. Change of Location
10.1 Should the Customer wish to move any related equipment or part thereof to a different place within the Location or away from the Location the Customer shall first obtain the written consent of AV Riviera. If AV Riviera shall reasonably consider that the movement may damage or adversely affect the performance of the Equipment or shall render the continuation of its services impracticable to perform within the terms of this Agreement AV Riviera shall immediately inform the Customer. If the parties shall then be unable to conclude an agreement to resolve AV Riviera's concerns to its satisfaction then upon written notice from AV Riviera to that effect the Customer shall be deemed to have served notice upon AV Riviera terminating this Agreement in accordance with clause 14 hereof and shall remain liable for the charges of AV Riviera hereunder until its expiration while AV Riviera shall not be bound to attend the Equipment at its new location but shall attempt to deal with any report of fault by telephone or remote response only.
11. Assistance & Access to Equipment
11.1 The Customer shall arrange full and safe access to the Equipment for AV Riviera (together with adequate lighting, heating and ventilation as well as suitable electrical current and points for testing) and shall provide suitable working facilities, telephone and other communications and secure storage as may be required by AV Riviera.
11.2 AV Riviera shall have the right to inspect the Equipment/System at any time during Normal Business Hours by appointment with the Customer; such appointment not to be unreasonably withheld or delayed.
12. Failure and Replacement of Equipment
12.1 If, in the reasonable opinion of AV Riviera, any item of Equipment can no longer be economically maintained by the provision of replacement spare parts AV Riviera may delete from the appended Schedule to this Agreement such item and any other items that are rendered inoperable as a result.
12.2 AV Riviera may, subject to the agreement of the Customer, replace the Equipment or any part thereof at an agreed cost to the Customer and/or an additional maintenance charge.
12.3 Replacement of any item of the Equipment not supplied by AV Riviera shall only become part of the Equipment under this Agreement with the prior written consent of AV Riviera and at an agreed additional charge.
12.4 AV Riviera shall be under no obligation to provide any loan Equipment during any downtime period of the Equipment or part thereof arising because of the performance of AV Riviera's maintenance or repairing obligations hereunder but if any shall be supplied it shall be at the risk of the Customer who shall maintain and deliver up the
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same in no less condition than when supplied, fair wear and tear excepted.
12.5 Unless otherwise stated in the Schedule, warranty terms shall be those provided by the Manufacturer's terms.
13. Spare Parts & Replacement
13.1 AV Riviera will use all reasonable endeavours to supply all necessary replacement spare parts but AV Riviera shall not be liable or in default for any delay in performing, or failure to perform, under this Agreement due to reasons beyond its direct or indirect control.
13.2 Any replacement parts provided by AV Riviera hereunder shall (following any payment that may
be due therefore) become the property of the Customer and the parts removed shall become the property of AV Riviera in accordance with clause 7 above.
14.1 Except as specifically identified below the maintenance service provided by AV Riviera hereunder shall not include maintenance or repair or replacement of any electrical or telephonic or other communications work or equipment or accessories connected to or external to the Equipment that AV Riviera did not install/take over as per the quote, nor:
14.1.1 Loss or damage caused to the Equipment or any of the Customer's data due to the use of incompatible, damaged, faulty or uncertified accessories or media or the failure of the proper supply of electricity thereto howsoever occasioned;
14.1.2 Service, which is impracticable or uneconomical for AV Riviera to render because of alterations to the Equipment or their connection by mechanical or electrical means to other equipment or devices;
14.1.3 The provision of supplies, accessories and software or maintenance to the casings of the Equipment or the addition or the removal of accessories or attachments;
14.1.4 The supply of consumables, such as but not limited to light elements, camera or monitor tubes, batteries either primary or standby, toner, drums, fuser units, print heads, printer ribbons, floppy compact and zip discs, tapes, magnetic media of any type, cables, paper and other items not specifically detailed herein whose use life is less than the permanent structure of the hardware and the software comprising the Equipment;
14.1.5 Any consequential loss, liability or loss of profit, whether resulting from the breakdown of the Equipment, delay in carrying out maintenance to the Equipment, loss of data or other information stored therein or otherwise howsoever caused;
14.1.6 Damage caused by acts or omissions of the Customer or its employees or agents or third parties who lawfully or unlawfully gain access to the Equipment or part thereof such excluded damage to include damage or loss caused by a computer virus and/or failure to follow the operating procedure.
14.1.7 Overloading, experiments and usage involving the imposing of abnormal conditions or in any respect not in accordance with the manufacturers recommended usage.
14.1.8 The costs of replacement loan Equipment or other expenses incurred as a result of the breakdown or failure of the Equipment unless within any maintenance or replacement obligation of AV Riviera herein.
14.1.9 The breach of any firewall howsoever occasioned.
15. Intellectual Property
15.1 Subject to any third party rights other than by virtue of the Agreement, to the extent that the provision of the Services results in the creation of any Foreground IPR such Foreground IPR shall vest in AV Riviera. AV Riviera shall grant to the Customer a non-exclusive license to use the Foreground IPR for the purposes of the Customer in the direct field of application for which the Services were carried out. The exact terms of any license will be agreed through good faith negotiations between AV Riviera and the Customer.
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15.2 Ownership or title to any Background IPR shall not be affected by these Terms and Conditions or by the Agreement.
15.3 All copyright, design right, trade mark rights, patent rights and rights in knowhow and other like rights including moral rights whether registered or unregistered which subsist now or in the future ("Intellectual Property Rights") in the Equipment, documents, drawings, specifications, designs, programmes or any other material prepared by AV Riviera whether readable by humans or by machines devised or created by AV Riviera or its employees shall vest in and shall belong to AV Riviera free of any interest of any third party.
15.4 The Customer shall not be entitled and agrees not to manufacture, reproduce, copy, simulate, emulate, modify, adapt, recreate, or use in original or translated from the Equipment/System and any part thereof for any purpose other than that for which they were furnished, or do any other act inconsistent with AV Riviera's ownership of Intellectual Property Rights in clause 15.3 above.
16.1 The Customer shall keep confidential any methodologies and technology used by AV Riviera. All papers and documents AV Riviera produce in the course of the Agreement will remain the property of AV Riviera apart from letters and reports provided to the Customer.
16.2 The results of the Services may be freely published by the Customer but the Customer will not make any reference to AV Riviera Limited without obtaining prior approval in writing of each reference in its context, which approval shall not be unreasonably withheld
16.3 AV Riviera undertake not to disclose any confidential information obtained from a Customer except as he/she may direct. Similarly AV Riviera is not bound to pass on or use for the benefit of the customer confidential information obtained from anyone else.
17.1 AV Riviera shall have no responsibility for the accuracy of drawings, tools, designs, layouts, patterns or specifications supplied by the Customer.
17.2 The Customer shall indemnify AV Riviera against all claims whatsoever for damages and costs and against all liability in respect of any infringement of patent or other intellectual property rights resulting from compliance with the Customers instructions express or implied and the Customer will indemnify AV Riviera against any liability in respect thereof and shall pay all costs and expenses which may be incurred by AV Riviera in reference to any such claim. The indemnity shall extend to any amount paid on a legal advice in respect of any such claim.
17.3 The Customer warrants that it has obtained all necessary rights, permissions and licenses for the use by AV Riviera and the Customer of all and any drawings, tools, designs, layouts, patterns or specifications supplied to AV Riviera and agrees to indemnify AV Riviera fully and defend at its own expense AV Riviera against all costs and losses whatsoever incurred by it, its employees, servants or agents as a result of any claim made against AV Riviera or any of them for infringement of any Intellectual Property rights belonging to a third party.
17.4 All personal data relating to the Customer collected by AV Riviera from which AV Riviera can identify the Customer may be recorded electronically and used in accordance with the Data Protection Act 1998. For purposes of identification, billing and marketing, AV Riviera will collect that data and will also hold onto it for its own use in the business of AV Riviera, processing orders, administration and future changes to improve and develop its services, as well as for marketing, advertising and promotional purposes. AV Riviera may also use the information or parts of it to occasionally broadcast it or notify the Customer about AV Riviera events, promotions or related occasionally broadcast it or notify the Customer about AV Riviera events, promotions or related activities that the Customer may find useful. In addition, AV Riviera may also pass on the information to third parties but only to the extent that it is permitted under applicable data protection legislation. By ordering any services or signing up to our mailing list the Customer agrees protection legislation. By ordering any services or signing up to our mailing list the Customer agrees to such use and processing of the Customer's information. If the Customer believe that AV Riviera is storing details relating to the Customer and that these are incorrect, please write to AV Riviera at it's business address:
38 Station Road, Fordingbridge, Hampshire SP6 1JW, UNITED KINGDOM
The information will be corrected as soon as possible or removed from our database as the Customer requests. 17.5 AV Riviera shall maintain records and documentation relating to the Agreement and Services for a period AV Riviera, Terms & Conditions 8
not exceeding 6 years from the date of completion. Such documents may be required to be reviewed by AV Riviera's auditors from time to time.
18.1 Notwithstanding anything else contained herein, this agreement may be terminated by either party forthwith by giving one month's notice in writing to the Customer if either party shall become subject to receivership, bankruptcy, administration, liquidation, or arrangement with its creditors or otherwise commits a breach of the Agreement which the party serving the notice reasonably considers is not capable of remedy; or that the other party has continued in any breach of the Agreement for more than 30 days after being warned in writing of such breach; or that the Customer does not make payments in accordance with clause 5 above AV Riviera reserves the right to terminate the Agreement with immediate effect by written notice to the Customer.
18.2 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
18.3 Upon termination of the Agreement, AV Riviera Limited may set off against any debt owed by the Customer to AV Riviera Limited, or the amount of any loss and/or damage AV Riviera reasonably assess as resulting from the termination of the Agreement, any sums otherwise due to the customer
19.1 This agreement may only be amended in writing and a duly authorised representative of AV Riviera and of the Customer must sign any such amendments. No agent, servant or subcontractor of the Customer has any authority to alter or vary these terms and conditions in any way.
20.1 Any obligation or liability of AV Riviera under this Agreement shall be suspended and unenforceable by the Customer whilst the Customer is in default of the terms of payment under this Agreement or any other of the Customer's obligations to AV Riviera whether arising under this Agreement or not and shall so remain until such default is remedied to the reasonable satisfaction of AV Riviera.
21.1 All notices under this agreement shall be in writing and shall be deemed to be duly given if delivered by hand in which case service will be deemed to be effected upon delivery at the Parties' principle place of business by 5pm on a business day or the day of delivery or by email in which case service will be deemed to be two days after the day on which it is transmitted.
21.2 Where legal proceedings are initiated any notices or court forms will be posted by pre-paid first class registered post to the other party at the principle place of business or any other address nominated by that party. If any such notice is sent by pre-paid first class registered post it shall be deemed properly served on the second normal working day following its posting. If delivered by hand it shall be deemed properly served if delivered in Normal Business Hours if before 5pm and acknowledged in writing upon service by a Director or the Secretary of the recipient party if a Company (or in the case of a sole trader by him and in the case of a partnership by a partner). Service by email shall only apply where both parties are legally represented and indicate a willingness to accept service in this way.
22.1 AV Riviera at its discretion may assign this Agreement and/or appoint subcontractors and any subcontractor so appointed shall act and fulfil the requirements of AV Riviera as if it were named as AV Riviera hereunder.
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22.2 The Customer shall not assign or sub-contract the Agreement or any part of it without the prior written consent of AV Riviera Limited in writing, such consent not to be unreasonably withheld.
23.1 No forbearance indulgence time or relaxation on the part of either party of the terms or conditions of the Agreement shall in any way effect the rights or powers of either party under this Agreement or be deemed to be a waiver by either party of any breach by the other of any term of this Agreement or any subsequent breach.
24. Force Majeure
24.1 Neither party shall be under any liability for failures or delays attributable to causes beyond its control or be deemed to be in breach of this Agreement which result from circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than one month, either party may terminate this Agreement by written notice to the other party. Such circumstances beyond a party's control will include but are not limited to the following: riots, terrorist attacks, flood, high winds, lightning strikes, static discharge, mains power interruption and telephone line.
25. Entire Agreement
25.1 This Agreement, together with the Schedule and any other schedules hereto and any subsequent duly signed agreed amendments hereto and the AV Riviera website terms and conditions constitute the entire agreement and understanding between the parties. Any and all previous discussions, representations, promises, quotes, proposals, understandings and agreements made in anticipation of the execution of this Agreement are merged into and superseded by this Agreement and shall be without further effect.
26. 1 If any term or provision of this Agreement or any part thereof shall be held to be illegal or unenforceable the same shall cease to be part of this Agreement so that the validity of the remainder of this Agreement other than that term or provision or part thereof shall not be affected.
27. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
(a) (b) (c)
Nothing in these Conditions shall limit or exclude the AV Riviera's liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or
fraud or fraudulent misrepresentation
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet
Subject to clause 27.1:
27.2.1 AV Riviera shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss or damage to property or any indirect or consequential loss arising under or in connection with the Agreement howsoever caused withstanding the failure of the System(s) to operate effectively or at all;
27.2.2 AV Riviera is not an insurer. AV Riviera's charges bear no relation to any claims that may result from faulty equipment;
27.2.3 Without prejudice to the above, AV Riviera's total liability to the Customer in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total amount payable under this Agreement by the Customer to AV Riviera or in the event of the Agreement being terminated before completion of the services an appropriate amount based on prorating the agreed fees.
27.2.4 AV Riviera's liability shall be calculated on the basis that its liability shall be limited to such proportion which it would be just and equitable to require it to pay having regard to its responsibility and on the basis that all other interested parties in the Agreement, including but not limited to other consultants, contractors, sub-contractors, shall be deemed to have provided contractual undertakings to the Customer in respect of the performance of their services in connection with the development and shall be deemed to have paid to the Customer such proportion which it would be just and equitable for them to pay having regard to the extent of their responsibility.
27.3 Except as set out in this Agreement, conditions, all warranties, conditions and other terms implied by statute AV Riviera, Terms & Conditions 10
or common law are, to the fullest extent permitted by law, excluded from the Agreement. 27.4 This clause 27 shall survive termination of the Agreement.
28. Third Party Rights
28.1 A person who is not party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms but this does not affect any right or remedy of a third party which exists or is otherwise available in law.
29.1 The Customer agrees that it shall not without AV Riviera's prior written consent directly or indirectly solicit or offer employment or engagement to any Key Employee who is at the time of such action or was during a period of 12 months immediately preceding such action involved in the provision of any of the Services.
29.2 The Customer agrees that if it employs or engages any Key employee contrary to the provision of clause 29.1, the customer shall be liable to pay to AV Riviera liquidated damages in an amount equal to one year's salary of that employee (as such salary applies at the date of leaving AV Riviera's employment) or £35,000, whichever is the greater and the Customer hereby acknowledges that such amount is a reasonable assessment of the costs which would be incurred in the loss of such a person.
30. Proactive Maintenance Site Visits
30.1 Proactive Maintenance Site Visits will be carried out at intervals as specified in the Schedule.
31. Governing Law
31.1 This Agreement and all matters arising from it and any dispute resolutions shall be governed by and construed in accordance with English Law and subject to the exclusive jurisdiction of the courts of England and Wales.
31.2 AV Riviera shall have the right to sue to recover its fees in any jurisdiction in which the Customer is operating or has assets, and shall have the right to sue for breach of any intellectual property rights or other proprietary information and trade secrets whether in connection with this Agreement or otherwise in any country where it believes that infringement or a breach of this Agreement is taking place relating to its aforesaid rights.
31.3 AV Riviera shall in good faith attempt to settle any dispute arising from this Agreement but if the dispute cannot be resolved the parties agree to use a jointly appointed, neutral mediator within 14 days to assist in facilitating resolution of the dispute and to agree a date for the mediator to start the process. This process shall be strictly confidential and without prejudice to the rights of either party in any future proceedings. Any agreement shall be considered binding in good faith.
Please contact the following personnel if you require assistance: Gemma Duhig (France) +33 6 03 45 32 49
Dan Palmer (UK) +44 77 17 79 84 55