For the purposes hereof “the Company” shall mean the firm of Birnam CD and “the Customer” shall mean each and every person with whom the Company contracts with in the ordinary course of its business. The singular shall include the plural and the masculine the feminine. Joint and several liability shall apply. Every contract concluded between the Company and the Customer shall incorporate these Terms and Conditions. All other conditions are hereby specifically excluded save as may be expressly agreed in writing between the Company and the customer. “Goods” shall mean any part of the constituents of CDs, CD-Rs, DVDs, cassettes and any other related product, materials or other items to be supplied pursuant to the Contract. Day shall mean a weekday.
The Company’s quotations do not constitute an offer.
All and any business undertaken by the Company is transacted solely upon and subject to these Terms and Conditions even though the Customer may purport to modify, negate or add further terms and conditions to the same in his order or modification of order or in any other manner whatsoever unless a partner of the Company shall specifically agree in writing to any such variation, modification, negation or addition. In the event of any conflict arising between these Conditions and the conditions so added, the former shall prevail. These Terms and Conditions override and replace any other Terms and Conditions of the Company.
All contracts are subject to the Company receiving any necessary license to purchase, process or use the required materials and / or to manufacture the products and to the Company being reasonably able to obtain the materials required to manufacture the products and that at normal cost.
Unless otherwise agreed in writing, payment is due forthwith on presentation of the invoice or on delivery of the Goods if earlier. If the Customer fails to pay the Company in accordance with the above or if any sum be due and remain unpaid in whole or in part by the Customer to the Company the Customer shall be liable to pay and hereby fully indemnifies the Company against all legal costs and other costs incident to and occasioned by such failure to make due payment including the cost of recovery of payment or other enforcement including pre-litigation costs and legal fees. In addition, interest will be payable by the Customer from the due date for payment until the date of actual payment (“the outstanding period”) of any such outstanding sums at a rate of eight per cent (8%) per annum above the base lending rate of the Bank of Scotland in force from time to time during the outstanding period (after as well as before judgement). Without limitation of the Company’s rights and remedies set out herein, the Company shall also be entitled to suspend all further deliveries of Goods until any outstanding payment is made in full, or cancel any order remaining to be fulfilled insofar as Goods remain to be delivered.
All invoice queries must be notified in writing to the Company within 14 days of the date of the invoice otherwise the invoice shall be deemed to be correct and the Customer shall be bound to pay such invoice in full.
Delivery & Transport
Where the Goods are delivered by the Company’s own transport or by a courier on behalf of the Company, the risk therein shall pass to the Customer upon delivery. Otherwise the Goods shall be deemed to have been delivered and the risk therein to have passed to the Customer upon their transfer to the courier named by the Customer or if the Customer is to collect the Goods from the Company upon the Company notifying the Customer that the Goods are available for collection.
The Customer shall be at liberty to sell the Goods at any time. If the Goods are sold before such time as title is transferred as above, the Customer shall sell as an agent and trustee of the Company. The proceeds of any such sale (together with any interest thereon) shall be held in trust for the Company and shall not be intermingled with any other monies (whether in a bank account or otherwise).
Masters & Packaging
The Customer shall supply copy master tapes of recordings and designs for printed parts in accordance with the Company’s directions promptly following execution of the Contract. The Company will then supply the Customer with proofs of printed parts and if the Customer specifically so requests upon delivery of the copy master tapes with test pressings of the recordings and proofs of the printed parts. If the Customer shall notify the Company that a test pressing or proof is not satisfactory the Company will obtain a new test pressing / proof at the cost of the Customer. If the Customer fails to notify any complaints in writing within five (5) days of delivery of any proofs, samples, lacquers or test pressings the Customer’s approval of such items shall be deemed to have been given and the Company shall be entitled to assume that the Customer is entirely satisfied and the Customer shall have no claim against the Company in respect of Goods which conform in quality to the proofs, samples, test pressings or lacquers provided. If the Customer has not required test pressings or proofs to be provided it shall have no claim against the Company for any fault which would have been revealed had the Customer made an examination of the test pressing or proofs.
If the Customer shall fail to supply copy master tapes, artwork designs or any other materials required to be supplied hereunder or to make payment in accordance with the Contract then any time or date agreed for delivery of the Goods shall be extended by three (3) days in addition to the period of the delay in supply or payment. Notwithstanding the foregoing or anything else to the contrary contained herein any delivery dates quoted or agreed are given in good faith and the Company will use all reasonable endeavours to make delivery within the stated period but such delivery dates and periods are not of the essence of this Contract or intended to be binding and the Company shall not be under any liability to the Customer in respect of any failure to deliver on any particular date or dates including any losses or damages suffered by the Customer by reason of or arising from any such failure or delay in delivery.
The Company will, at the Customer’s cost, carry out the written instructions of the Customer relating to the return or destruction of the Customer’s master tapes, metalwork, labels or sleeve designs, artwork or computer discs. If no such instructions are received by the Company within one month of the delivery of the applicable order (or in the case of metalwork within one year of delivery of the applicable order) the Company reserves the right to deal with such items as it thinks fit and shall have no liability to the Customer in relation thereto. The Company hereby specifically excludes all liability and responsibility for any loss, damage or destruction of the copy master tapes, metalwork, artwork, designs or discs and any other materials supplied by the Customer to the Company. The Customer hereby undertakes and agrees to insure and keep insured all such materials and items for full replacement cost in respect of such eventualities.
Shortages & Damages
If any Goods are faulty or damaged or, where carried by the Company or on behalf of the Company, are lost or damaged in transit, the Customer shall submit a detailed claim in writing to the Company within three (3) days of delivery (or in the case of non-delivery within three (3) days of receipt of the invoice in respect of such delivery or purported delivery) of the nature and extent of any loss or damage to enable the Company to make any necessary claim against the manufacturer or carrier within the relevant time limit. If the Customer shall fail to give such notice the Goods shall be deemed in all respects to be in accordance with the Contract and the Customer shall be bound to accept and pay for the same accordingly. The Customer will arrange inspection of the Goods in question and the Customer must provide appropriate inspection facilities. The Goods must not be removed from the original packaging nor dealt with nor disposed of in any way and they must be stored in a separate area of the Customer’s premises. Minor faults which do not affect the quality of sound production shall not be a cause of rejection or complaint hereunder and of records in particular (but without limitation) a tolerance of 2mm warping or dishing is deemed to be acceptable. If the Company accepts liability in respect of such Goods the Customer shall return the faulty or damaged Goods to the Company and if the Company so elects the Customer shall be obliged to accept replacement Goods of an acceptable quality in accordance with the foregoing, manufactured within a reasonable period after such return, and dispatched to the Customer promptly following completion of manufacture. Notwithstanding the foregoing the Company hereby expressly excludes any liability which it might otherwise have for loss or damage suffered by the Customer (including liability for consequential loss or damage including loss of profit) by reason of shortage of delivery in or the quality in or the quality or condition of the Goods or their loss or damage save insofar as and in the amount recovered by the Company in respect thereof from the manufacturer or carrier. No aggregate liability of the Company to the Customer for negligence, breach of contract misrepresentation or otherwise shall in any event exceed the net price invoiced by the Company to the Customer in respect of the defective damaged or undelivered Goods.
The Company reserves the right to deliver within ten per cent (10%) finished product over or under the order specified in the Contract.
The Company reserves the right to deliver up to twenty per cent (20%) printed parts over the order specified in the Contract (to allow for wastage).
Where the Company is holding a balance surplus to the Contract of records, tapes, CDs, printed parts or other Goods the Company will at the Customer’s expense carry out the Customer’s reasonable written instructions relating to such items. If the Customer’s instructions are not received within one month of the final delivery of the order pursuant to the Contract relating to the Goods in question, the Company will not accept any liability whatsoever for any loss or damage or otherwise occurring to such items and reserves the right to deal with them as it sees fit. If the Customer wishes the Company to store such material, the Company has the right to charge storage as it sees fit.
Copyright & Retention Of Title
The Customer hereby warrants and represents that:
1. it owns the copyright or is the owner or licensee of all rights relating to the recordings supplied to the Company hereunder by virtue of valid and binding contracts and is not infringing the rights of any third party in relation thereto and that all artist, producer, musician, studio costs and royalties (including V.A.T. and any similar taxes thereon) and any other charges of whatsoever nature payable to any third party in respect of such recordings or any of the Goods shall be the sole responsibility of the Customer (which responsibility the Customer shall fully and promptly discharge when due) and the Company shall have no liability in respect thereof.
2. it has and will have the right to use all names, likenesses and photographs of any artists and any others and all other names, trademarks or logos included in any artwork or related materials supplied to the Company or otherwise to be used hereunder in relation to the Goods.
3. the reproduction or manufacture of any product hereunder will not contravene the Trade Description Act, or any other Act of Parliament, statute or instrument, regulation or by-law and the Company shall have no liability in respect thereof.
4. is under no disability, restriction or prohibition in respect of its right to enter into this Contract and perform its obligations hereunder.
5. it has the right to mechanically reproduce the recordings and musical works embodied in the master tapes supplied hereunder and with particular reference to the Copyright, Designs and Patents Act 1988 and shall assume all liability for any violation or contravention of copyright in relation to the Goods. The Company hereby reserves the right to ask for and the Customer shall provide upon the Company’s request documentary evidence of such right to mechanically reproduce.
The Customer hereby indemnifies the Company for itself and on behalf of the manufacturer against any loss, damages, costs, claims and expenses that either of them may occur as a result of any proceedings brought against them, or either of them, based on infringement of copyright or other third party rights.
The Customer shall fully indemnify the Company and keep it indemnified against all actions, claims, demands, liabilities, costs, charges and expenses whatsoever (including consequential loss and reasonable legal fees and expenses) which may be brought against the Company or which the Company may suffer as a result of any breach or alleged breach or non-observance of any provisions of this Contract or any guarantee, agreement, warranty, representation or undertaking given by the Customer hereunder being untrue, inaccurate or unfulfilled.
The Company shall not bear any financial or other liability to the Customer or any third party in the event that any of the Goods or items or materials supplied by the Customer are seized on or off the Company’s premises as a result of obscene, blasphemous, libelous, defamatory or other offensive or illegal material being contained in or on such items or Goods or the packaging thereof. Notwithstanding any inability of the Company to deliver Goods as a result of such seizure the Customer shall be liable to make payment to the Company for the Goods at the full price set out in the invoice.
The Company shall be entitled to terminate the Contract by notice in writing to the Customer and may stop any Goods in transit and / or suspend further deliveries of Goods in the event that the Customer shall have committed or permitted any material breach of its obligations hereunder or if an order is made or any proceeds or action taken in relation to bankruptcy or if (being a company) an order is made or a resolution passed for the winding up of th Customer (other than for the express purpose of amalgamation or reconstruction) or if a receiver is appointed of any of the Customer’s assets or undertakings or if circumstances arise which entitle the Court or a creditor to appoint a receiver or manager of any of its assets or undertakings or if circumstances arise which entitle the Court to make a winding-up order or if the Customer takes or suffers any similar action in consequence of debt. The Customer shall not be entitled to terminate or cancel the Contract without prior written consent of the Company and it shall be an implied condition of any such consent that the Customer shall indemnify the Company against all expenses and loss (including loss of profit) incurred by the Company as a result of or arising from such termination or cancellation.
Neither party hereto shall be responsible or liable for any loss or damage or for failure to fulfill any term or condition of the Contract by reason of force majeure which shall mean strikes, lockouts and any event or circumstances beyond the control of either party, including (without prejudice in the generality of the foregoing) riots, civil commotions or national or international emergency, destruction or damage due to natural forces, fires, floods and explosions.
No amendment to the Contract shall be effective unless made in writing and signed by the Company. The Contract shall be governed by and construed in accordance with Scots Law and the parties hereto shall submit to the exclusive jurisdiction of the Scottish Courts. Jurisdiction is prorogated to Perth Sheriff Court or to the Court of Session in circumstances where the nature of the dispute excludes Sheriff court jurisdiction.