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ERLANGER, KY, August 6, 2015 - tvONE, long-time developer and supplier of high performance video processing equipment, has announced a friendly management buyout of the company from previous owner Nortek, Inc. The acquisition was completed July 31, 2015, with a new board of directors comprised of the tvONE management team; David Van Horn, David Reynaga and Andy Fliss, with continued active involvement of Frithjof Becker and Richard Mallett.
TERMS AND CONDITIONS OF PURCHASE BY TV ONE BROADCAST SALES CORPORATION
1. Applicability. The purchase order (“Purchase Order”) together with these terms and conditions, which are hyperlinked from the Purchase Order or otherwise provided to Seller, collectively constitute an offer by the Buyer for the purchase of the goods (“Goods”) or services (“Services” and together with the Goods, the “Ordered Items”) specified from the Seller in accordance with these terms and conditions and the Purchase Order. Upon acceptance of this offer by Seller, these terms and conditions and the Purchase Order shall constitute a binding agreement (the “Agreement”) between the Buyer and the Seller, and apply to all purchases of the Ordered Goods by Buyer from Seller, as such Ordered Items may be described on the face of the Purchase Order. This offer will be deemed accepted by the Seller upon the first of the following to occur: (a) Seller making, signing or delivering to Buyer any letter, for or other writing or instrument acknowledging acceptance, (b) any performance by Seller under the offer, or (c) the passage of three (3) days after Seller’s receipt of a Purchase Order without written notice to Buyer that Seller does not accept such Purchase Order. In the event of any conflict between the Agreement and any other document or instrument submitted by Seller, the Agreement will prevail. The Agreement, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Ordered Items and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both oral and written, with respect to the Ordered Goods unless a separate overriding written contract has been entered into and signed by both parties. Buyer expressly limits acceptance of the Agreement to the terms stated herein and in the Purchase Order. Such terms expressly exclude any of Seller’s terms and conditions of sale or any other document issued by Seller in connection with the Ordered Goods. Any additional, different, or inconsistent terms or conditions contained in any form, acknowledgement, acceptance, or confirmation used by Seller in connection with the implementation of the Purchase Order are hereby objected to and rejected by Buyer, however such proposal does not operate as a rejection of the Agreement (unless such variances are in the terms of the description, quantity, price or delivery schedule of the Ordered Items), but will be deemed a material alteration thereof, and the Agreement shall be deemed accepted by the Seller without any additional, different or inconsistent terms.
2. Shipment and Delivery; Alternate Source.
(a) All Goods must be (i) suitably packed or otherwise prepared by Seller for shipment to prevent damage, to obtain the lowest transportation and insurance rates, and to meet the carrier’s requirements, and (ii) shipped in accordance with the instructions on the Purchase Order. Expenses incurred due to failure to comply with these terms are the responsibility of Seller. Seller’s name, complete ship to address and Purchase Order number must appear on all invoices, bills of lading, packing slips, cartons and correspondence. Bills of lading must be attached to invoices submitted, showing carrier, number of cartons and weight and date of shipment. Packing slips must accompany all shipments listing contents of shipment in detail. Title to and all risk of loss or damage to Goods remains with Seller until receipt by Buyer of conforming Goods at the required destination. Terms of shipping are F.O.B. the Buyer’s delivery location unless otherwise noted on the Purchase Order. Time is of the essence. Deliveries are to be made only in the quantities and at the times specified in the Purchase Order. Until delivery takes place, Seller must keep the Goods separately stored and identified as Buyer's property. Seller's right to possession shall terminate immediately in the event an Agreement is terminated by the Buyer pursuant to an event of insolvency as set out in Section 7. Seller grants and shall procure an irrevocable right to Buyer or its agents to enter any premises where the Goods are kept or may be stored in order to inspect them, or where Seller's right to possession has terminated, to recover them.
(b) If delivery is not expected to be made on time, Seller must immediately notify Buyer and take reasonable steps, at its cost, to expedite delivery. The Seller shall not deliver an order more than five business days in advance of an agreed delivery date without the prior written consent of the Buyer. Buyer may cancel any order if delivery is not made on time or if notice is given that a delivery is expected to be late.
(c) Buyer may reject any delivery or cancel all or any part of any Purchase Order if Seller fails to make delivery in conformity with the terms and conditions of the Agreement including, without limitation, any failure of Goods to conform to the specifications (“Specifications”) and performance criteria published by Seller for Goods. Buyer’s acceptance of any non-conforming delivery shall not constitute a waiver of its right to reject future deliveries. If Seller (i) fails to supply Goods, (ii) fails to supply Goods meeting Specifications, or (iii) fails to meet Buyer’s delivery schedules and delivery requirements, and Seller does not provide a comparable quality substitute (for which substitution Seller must assume any expense and price differential), then Buyer may, in its sole discretion, purchase Goods from another supplier as an alternate source as Seller, in its sole discretion, deems necessary. In such event, Seller shall reimburse Buyer for any additional costs and expenses incurred by Buyer in purchasing Goods from such other supplier as an alternate source. Upon identification and notification of defective Goods or nonconforming shipments, Buyer shall receive full credit either for scrap or return, which credit will include full costs paid to Seller, together with shipping, processing and related costs, if applicable. Within 5 business days of notification of the defective Goods, Seller shall submit to Buyer a written explanation of the root cause and corrective actions implemented to prevent reoccurrence. This Section 2 shall apply equally to any repaired or replacement Goods.
(d) Buyer may, without liability, at least 14 days prior to the scheduled delivery date defer delivery on any or every Ordered Item by giving oral notice to Seller of any necessary rescheduling (which oral notice is to be confirmed in writing within 10 days of the oral notice)
3. Prices; Payment. Prices for all Ordered Items will be as stated in the Purchase Order, and include all applicable taxes; provided, however, that in no event will the price charged by Seller under the Agreement be less favourable than the lowest price charged by Seller to other customers purchasing similar or lesser quantities of the Ordered Items. Payment terms for all Ordered Items will be as stated in the Purchase Order. Buyer shall be entitled to set off any amounts owing at any time from Seller to Buyer or any of its affiliated companies against any amount payable at any time by Buyer or such affiliates in connection with the Agreement.
4. Inspection/Testing. Payment for the Ordered Items does not constitute acceptance thereof. Buyer has the right to inspect all Ordered Items and to reject any or all Ordered Items that are in Buyer's judgment defective or nonconforming. The Buyer shall not be deemed to have accepted any Goods until it has had a reasonable time to inspect them following delivery, or, in the case of a latent defect in the Goods, until a reasonable time after the latent defect has become apparent Buyer may request, at its option, repair or replacement of rejected Ordered Items or a refund of the purchase price. Ordered Items supplied in excess of the quantities specified in the Purchase Order may be returned to Seller at Seller's expense. Buyer reserves the right to use rejected materials, as it believes advisable or necessary to meet its contractual obligations to customers, without waiving any rights against Seller. Nothing contained in the Agreement relieves Seller from the obligation of testing, inspection and quality control.
5. Confidentiality and Proprietary Rights. Each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than as expressly permitted under this Agreement. For these purposes “Confidential Information” means information (whether in oral, written or electronic form) belonging or relating to that party, its business affairs or activities which is not in the public domain
and which: (i) either party has marked as confidential or proprietary, (ii) either party, orally or in writing, has advised the other party is of a confidential nature, or (iii) due to its character or nature, a reasonable person in a like position and under like circumstances would treat as confidential; but shall not include information that (i) is or becomes publicly known through no act or omission of the receiving party (ii) was in the other party's lawful possession prior to the disclosure (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure (iv) is independently developed by the receiving party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body or by the rules of a recognised stock exchange or listing authority. Each party shall agree to take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
6. Warranties. Seller represents and warrants that: (a) all Ordered Items and Seller's performance under the Agreement will (i) conform to all applicable drawings, specifications, descriptions, and samples furnished to or supplied by the Seller, (ii) be of satisfactory quality and free from defects in design, material, and workmanship, (iii) be in compliance with all then applicable laws (whether foreign or domestic), including without limitation laws related to the health and safety of consumers and the protection of the environment and child labour laws; (iv) will be fit for the purpose for which such Goods are commonly supplied; and (v) will be fit for any purpose held out by the Seller or made known to the Seller by the Buyer; (b) the Ordered Items do not infringe upon or violate any intellectual property, right of privacy or other proprietary or property right of any third party; (c) it has the right to grant, and hereby grants, Buyer a licence to use any software embedded or incorporated into any Ordered Items; (d) all Services will be performed with reasonable skill and care and in accordance with good industry practice; and (e) it has complied and shall comply with all laws applicable to its performance under the Agreement.
7. Termination. Buyer may terminate the Agreement in whole or in part (i) upon 15 days’ written notice to Seller at any time for convenience (ii) immediately upon written notice if Seller defaults in the performance of its obligations under the Agreement and is unable to cure the default within 10 days following notice of the default, (iii) immediately upon written notice in the event the Seller suffers an event of insolvency including suspending, or threatening to suspend, payment of its debts or being deemed unable to pay its debts in the ordinary course as determined by Buyer in its reasonable determination or 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 Seller; 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 Seller. Upon the termination of the Agreement, in whole or in part, by Buyer for any reason, Seller shall immediately (a) stop all work under the terminated Agreement, (b) cause any of its suppliers or subcontractors to cease work, and (c) preserve and protect work in progress and materials on hand purchased for or committed to under the Agreement in its own and in its suppliers' or subcontractors' plants pending Buyer's instructions. Buyer shall not owe Seller any lost profit or payment for any materials or Goods that Seller may consume or sell to others in its ordinary course of business.
8. Indemnity. Seller shall defend, indemnify and hold harmless Buyer, its affiliates, officers, employees and agents against all claims, damages, liability, losses, fines, or judgments, including costs, legal fees, and other expenses (whether direct or indirect), relating to or arising out of (a) Seller’s breach of the Agreement; (b) death or injuries to persons or property due to Seller’s breach of the Agreement; (c) the failure of the Goods or Seller's performance of the Services to comply with the requirements of the Agreement, or (d) infringement of a third party’s intellectual property rights in any Goods or Services.
9. Catastrophic Defects. Seller shall, within 30 days of Buyer's demand, indemnify Buyer or its designated third party service provider for all costs and expenses of parts, labour, administrative costs, shipping costs, replacement Goods costs and other expenses (including reasonable attorneys’ fees and expenses) related to or arising from a Catastrophic Defect, Goods recall or Goods field fix. “Catastrophic Defect” will be deemed to occur when: (a) the representations and warranties set forth in Section 6 are breached with respect to (i) 3% or more of the Goods shipped within any three-month period, or (ii) 1% of the Goods shipped within the first six months of the initial agreement between Seller and Buyer; (b) the return and exchange rate of the Goods sold by Seller to Buyer is in excess of the category average for the Goods, as determined by Buyer’s records; (c) a single or single group of defects in Goods (any manufacturing defect that affects the Goods cosmetically or functionally) is determined by Buyer to impact more than 10% of such Goods; (d) Goods (including any service parts, replacement parts, spare parts, assemblies and tools required for servicing Goods) recall is necessary in the reasonable opinion of Buyer or Seller; or (e) the Goods should be pulled from the marketplace to comply with applicable law as determined by Buyer in its sole discretion (including but not limited to, cases of a voluntary or mandatory consumer Goods safety recall).
10. Insurance. Seller shall, and shall require that its subcontractors shall, obtain and at all times maintain, from reputable insurance companies, adequate levels of insurance (including products liability and public liability adequate) to cover its obligation under this Agreement and under applicable law. At Buyer's request, Seller shall have Buyer added as an additional insured on the commercial general liability insurance policy and shall furnish Buyer with a certificate of insurance and applicable insurance policy endorsements evidencing such insurance. The Seller shall do nothing to invalidate any insurance policy or to prejudice the Buyer's entitlement under it and notify the Buyer if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change. If any part of the Agreement involves Seller’s performance on the Buyer’s premises or at any place where the Buyer conducts operations, or with material or equipment furnished to Seller by Buyer, Seller shall take all necessary precautions to prevent injury to person or property during the progress of Seller’s work.
11. Limitation of Liability. In no event shall Buyer's aggregate liability for any loss or damage arising out of or in connection with or resulting from the Agreement exceed the price allocable to the Goods or Services or unit thereof which gives rise to the claim, except that the Seller may charge the Buyer interest on any payment received later than 60 days after its due date in accordance with Section 3 at a rate of 2% per annum.
12. Governing Law/Jurisdiction. The Agreement, its interpretation and any disputes arising out of or in connection with it (including non-contractual disputes) shall be governed by, and construed in accordance with, the laws of the State of Kentucky (including but not limited to the Uniform Commercial Code as in effect in the State of Kentucky), without regard to Kentucky’s conflict of law principles. Buyer and Seller expressly acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) does not apply to the Agreement and such parties have voluntarily elected to opt out of the application of CISG to the Agreement. Buyer's rights under the Agreement are cumulative and in addition to any other legal or equitable remedies it may have against Seller. Buyer and Seller irrevocably agree and submit to the exclusive jurisdiction of any state or federal court located in Kenton County, Kentucky to bring an action or otherwise exercise a right or remedy, and Buyer and Seller irrevocably waive any objection based on forum non conveniens and any objection to venue of any such action or proceeding.
13. Compliance Matters. Seller must comply with all Buyer policies applicable to, and notified to, Seller. Seller must strictly comply with all applicable statutes, laws and regulations (“Laws”), including without limitation, all applicable environmental, health and safety, trade, and import/export Laws. Seller agrees to notify Buyer on any inherent hazard related to the Goods being purchased under the Agreement that would expose the hazard during the handling, transportation, storage, use, resale, disposal or scrapping of the Goods. Said notice shall be sent to Buyer’s Global Supply Chain Manager and shall specify the product name, the nature of the hazard, property precautions that must be taken by Buyer or others, all applicable Safety Data Sheets, and any other additional information that Buyer should reasonably expect to know to protect its interest, property and/or personnel.
14. Seller As An Independent Contractor. Seller shall perform the obligations of the Agreement as an independent contractor and under no circumstances shall be considered to be an agent or employee of Buyer. The Agreement shall not in any way be construed as creating a partnership or any other kind of joint undertaking between Buyer and Seller. Seller is solely responsible for all federal, state and local taxes, contributions and other liabilities with regard to payments by Buyer to Seller.
15. Anti-Corruption. Seller shall at all times conduct its activities in accordance with all applicable laws, rules, regulations, sanctions and orders related to anti-bribery or anti-corruption legislation including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977 (“Relevant Requirements"). The Seller shall (i) comply with all policies of the Buyer regarding anti-corruption as may be notified to it from time to time, and any relevant industry code, in each case as the Buyer or the relevant industry body may update them from time to time (“Relevant Policies”) and (ii) have and maintain in place throughout the term of this Agreement its own policies and procedures to ensure compliance with the Relevant Requirements and the Relevant Policies and will enforce them where appropriate (iii) promptly report to the Buyer any request or demand for any undue financial or other advantage of any kind received by the Seller in connection with the performance of this Agreement; (iv) immediately notify the Buyer if a foreign public official becomes an officer or employee of the Seller or acquires a direct or indirect interest in the Seller (and the Seller warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this Agreement); (v) within six months of the date of this Agreement, and annually thereafter, certify to the Buyer in writing signed by an officer of the Seller, compliance with this section 15 by the Seller and all other persons for whom the Seller is responsible pursuant to this Section 15. The Seller shall provide such supporting evidence of compliance as the Supplier may reasonably request. The Seller shall ensure that any person associated with the Seller who is performing services or providing goods in connection with this Agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Seller in this section 15 (“Relevant Terms”). The Seller shall in all circumstances be responsible for the observance and performance by such persons of the Relevant Terms, and shall in all circumstances be directly liable to the Buyer for any breach by such persons of any of the Relevant Terms howsoever arising. Breach of this section 15 shall be deemed a irremediable, material breach of this Agreement by the Seller.
16. Cooperation. The Seller shall provide all such evidence as the Buyer may reasonably request in order to verify any invoices submitted by the Seller or any discount statement or other cost reductions achieved by the Seller (including the dates on which cost reductions were achieved). In addition, the Supplier shall, on request, allow the Buyer to inspect and take copies of (or extracts from) all relevant records and materials of the Seller relating to the supply of the Goods as may be reasonably required in order to verify such matters.
17. General. The invalidity of any provision contained in the Agreement will not affect the validity of any other provision. This Agreement, together with any previous confidentiality agreement entered into between the parties, constitutes the entire agreement and understanding of the parties relating to the subject matter hereof. This Agreement supersedes all prior written and oral agreements and all other communications between the parties. Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. Buyer's failure to insist on performance of any term or condition or to exercise any right or privilege shall not waive any such term, condition, right or privilege unless such waiver is set out in writing and signed by both parties. The Agreement may be amended or modified only by a written instrument separately signed by Buyer or Seller. Seller shall not subcontract, encumber or assign its rights and obligations under the Agreement, in whole or in part, without Buyer's prior written consent. The provisions of Sections 5-9, 11, 12 and 17 survive termination of the Agreement. Nothing in the Agreement confers upon any person other than Seller and Buyer any right or remedy under or by reason of this Agreement. The Seller shall, at the request and cost of the Buyer, do or procure the doing of all such further acts, and execute or procure the valid execution of all such document, as may from time to time be necessary in the Buyer’s reasonable opinion to give full effect to this Agreement. All notices, requests, consents and other communications required or permitted to be delivered hereunder must be made in writing and delivered by facsimile or by hand, via overnight delivery service or by registered or certified mail, postage prepaid, to the address or facsimile number of the other party in the Purchase Order (or such other address or facsimile number as may be notified in writing by that party for these purposes). Notices shall be deemed to be received at the time at which it would have been delivered in the normal course of post, or in the case of facsimile, on the date on which the facsimile is transmitted by the sender according to the facsimile confirmation report.
TERMS AND CONDITIONS OF PURCHASE BY TV ONE LIMITED
1. Applicability.
The purchase order (“Purchase Order”) together with these terms and conditions, which are hyperlinked from the Purchase Order or otherwise provided to Seller, collectively constitute an offer by the Buyer for the purchase of the goods (“Goods”) or services (“Services” and together with the Goods, the “Ordered Items”) specified from the Seller in accordance with these terms and conditions and the Purchase Order. Upon acceptance of this offer by Seller, these terms and conditions and the Purchase Order shall constitute a binding agreement (the “Agreement”) between the Buyer and the Seller, and apply to all purchases of the Ordered Items by Buyer from Seller, as such Ordered Items may be described on the face of the Purchase Order. This offer will be deemed accepted by the Seller upon the first of the following to occur: (a) Seller making, signing or delivering to Buyer any letter, form or other writing or instrument acknowledging acceptance, (b) any performance by Seller under the offer, or (c) the passage of three (3) days after Seller’s receipt of a Purchase Order without written notice to Buyer that Seller does not accept such Purchase Order. In the event of any conflict between the Agreement and any other document or instrument submitted by Seller, the Agreement will prevail. The Agreement, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Ordered Items and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both oral and written, with respect to the Ordered Items unless a separate overriding written contract has been entered into and signed by both parties. Buyer expressly limits acceptance of the Agreement to the terms stated herein and in the Purchase Order. Such terms expressly exclude any of Seller’s terms and conditions of sale or any other document issued by Seller in connection with the Ordered Items. Any additional, different, or inconsistent terms or conditions contained in any form, acknowledgement, acceptance, or confirmation used by Seller in connection with the implementation of the Purchase Order are hereby objected to and rejected by Buyer, however such proposal does not operate as a rejection of the Agreement (unless such variances are in the terms of the description, quantity, price or delivery schedule of the Ordered Items), but will be deemed a material alteration thereof, and the Agreement shall be deemed accepted by the Seller without any additional, different or inconsistent terms.
2. Shipment and Delivery; Alternate Source.
(a) All Goods must be (i) suitably packed or otherwise prepared by Seller for shipment to prevent damage, to obtain the lowest transportation and insurance rates, and to meet the carrier’s requirements, and (ii) shipped in accordance with the instructions on the Purchase Order. Expenses incurred due to failure to comply with these terms are the responsibility of Seller. Seller’s name, complete ship to address and Purchase Order number must appear on all invoices, bills of lading, packing slips, cartons and correspondence. Bills of lading must be attached to invoices submitted, showing carrier, number of cartons and weight and date of shipment. Packing slips must accompany all shipments listing contents of shipment in detail. Title to and all risk of loss or damage to Goods remains with Seller until written receipt by Buyer of conforming Goods at the required destination. Terms of shipping are F.O.B. the Buyer’s delivery location unless otherwise noted on the Purchase Order. Time is of the essence. Deliveries are to be made only in the quantities and at the times specified in the Purchase Order. Until delivery takes place, Seller must keep the Goods separately stored and identified as Buyer's property. Seller's right to possession shall terminate immediately in the event an Agreement is terminated by the Buyer pursuant to an event of insolvency as set out in Section 8. Seller grants and shall procure an irrevocable right to Buyer or its agents to enter any premises where the Goods are kept or may be stored in order to inspect them, or where Seller's right to possession has terminated, to recover them.
(a) If delivery is not expected to be made on time, Seller must immediately notify Buyer and take reasonable steps, at its cost, to expedite delivery. The Seller shall not deliver an order more than five business days in advance of an agreed delivery date without the prior written consent of the Buyer. Buyer may cancel any order if delivery is not made on time or if notice is given that a delivery is expected to be late.
(b) Buyer may reject any delivery or cancel all or any part of any Purchase Order if Seller fails to make delivery in conformity with the terms and conditions of the Agreement including, without limitation, any failure of Goods to conform to the specifications (“Specifications”) and performance criteria published by Seller for Goods. All Goods shall be free from material defects in design, material and workmanship and shall be of satisfactory quality (within the meaning of the Sales of Goods Act 1979). Buyer’s acceptance of any non-conforming delivery shall not constitute a waiver of its right to reject future deliveries. If Seller (i) fails to supply Goods, (ii) fails to supply Goods meeting Specifications, or (iii) fails to meet Buyer’s delivery schedules and delivery requirements, and Seller does not provide a comparable quality substitute (for which substitution Seller must assume any expense and price differential), then Buyer may, in its sole discretion, purchase Goods from another supplier as an alternate source as Seller, in its sole discretion, deems necessary. In such event, Seller shall reimburse Buyer for any additional costs and expenses incurred by Buyer in purchasing Goods from such other supplier as an alternate source. Upon identification and notification of defective Goods or nonconforming shipments, Buyer shall receive full credit either for scrap or return, which credit will include full costs paid to Seller, together with shipping, processing and related costs, if applicable. Within 5 business days of notification of the defective Goods, Seller shall submit to Buyer a written explanation of the root cause and corrective actions implemented to prevent reoccurrence. This Section 2 shall apply equally to any repaired or replacement Goods.
(c) Buyer may, without liability, at least 14 days prior to the scheduled delivery date defer delivery on any or every Ordered Item by giving oral notice to Seller of any necessary rescheduling (which oral notice is to be confirmed in writing within 10 days of the oral notice). In addition, where Ordered Items are delivered by Seller in instalments, Buyer may, without liability, cancel any order (or part order) for the Ordered Items not yet delivered upon giving 15 days’ written notice to Seller.
(d) Buyer may, without liability, at least 14 days prior to the scheduled delivery date defer delivery on any or every Ordered Item by giving oral notice to Seller of any necessary rescheduling (which oral notice is to be confirmed in writing within 10 days of the oral notice). In addition, where Ordered Items are delivered by Seller in instalments, Buyer may, without liability, cancel any order (or part order) for the Ordered Items not yet delivered upon giving 15 days’ written notice to Seller.
3. Supply of Services
(a) Seller shall supply the Services to Buyer in accordance with the terms of this Agreement including, without limitation all specification and performance criteria set out in the Purchase Order (“Service Specification”) and the Seller’s published criteria. Seller shall meet all performance dates for Services. Time is of the essence. In providing the Services, Seller shall: (i) co-operate with Buyer in all matters relating to the Services and comply with all Buyer’s instructions; (ii) perform all Services with the best care, skill and diligence in accordance with best practice in the Seller’s industry, profession or trade; (iii) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure Seller’s obligations are fulfilled in accordance with the Agreement; and (iv) ensure that the Services (and any deliverables) conform with all descriptions and specifications set out in the Service Specification.
(b) If Seller fails to perform the Services by the applicable date, Buyer shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights: (i) to terminate the Agreement with immediate effect by giving written notice; (ii) refuse to accept any subsequent performance of the Services; (iii) recover from Seller any costs incurred in obtaining substitute services from a third-party; (iv) to require a refund from Seller of sums paid in advance for Services that Seller has not provided; and (v) claim damages for any additional costs, loss or expenses incurred by Buyer which are in any way attributable to Seller’s failure to meet such dates.
4. Prices; Payment.
Prices for all Ordered Items will be as stated in the Purchase Order, and include all applicable taxes; provided, however, that in no event will the price charged by Seller under the Agreement be less favourable than the lowest price charged by Seller to other customers purchasing similar or lesser quantities of the Ordered Items. Payment terms for all Ordered Items will be as stated in the Purchase Order. Buyer shall be entitled to set off any amounts owing at any time from Seller to Buyer or any of its affiliated companies against any amount payable at any time by Buyer or such affiliates in connection with the Agreement.
5. Inspection/Testing.
Payment for the Ordered Items does not constitute acceptance thereof. Buyer has the right to inspect all Ordered Items and to reject any or all Ordered Items that are in Buyer's judgment defective or nonconforming. The Buyer shall not be deemed to have accepted any Goods or Services until it has had a reasonable time to inspect them following delivery or performance (as the case may be), or, in the case of a latent defect in the Goods, until a reasonable time after the latent defect has become apparent Buyer may request, at its option, repair or replacement of rejected Ordered Items or a refund of the purchase price. Ordered Items supplied in excess of the quantities specified in the Purchase Order may be returned to Seller at Seller's expense. Buyer reserves the right to use rejected materials, as it believes advisable or necessary to meet its contractual obligations to customers, without waiving any rights against Seller. Nothing contained in the Agreement relieves Seller from the obligation of testing, inspection and quality control.
6. Confidentiality and Proprietary Rights.
Each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than as expressly permitted under this Agreement. For these purposes “Confidential Information” means information (whether in oral, written or electronic form) belonging or relating to that party, its business affairs or activities which is not in the public domain and which: (i) either party has marked as confidential or proprietary, (ii) either party, orally or in writing, has advised the other party is of a confidential nature, or (iii) due to its character or nature, a reasonable person in a like position and under like circumstances would treat as confidential; but shall not include information that (i) is or becomes publicly known through no act or omission of the receiving party (ii) was in the other party's lawful possession prior to the disclosure (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure (iv) is independently developed by the receiving party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body or by the rules of a recognised stock exchange or listing authority. Each party shall agree to take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
Seller represents and warrants that: (a) all Ordered Items and Seller's performance under the Agreement will (i) conform to all applicable drawings, specifications, descriptions, and samples furnished to or supplied by the Seller, (ii) be of satisfactory quality and free from defects in design, material, and workmanship, (iii) be in compliance with all then applicable laws (whether foreign or domestic), including without limitation laws related to the health and safety of consumers and the protection of the environment and child labour laws; (iv) will be fit for the purpose for which such Goods and Services are commonly supplied; and (v) will be fit for any purpose held out by the Seller or made known to the Seller by the Buyer; (b) the Ordered Items do not infringe upon or violate any intellectual property, right of privacy or other proprietary or property right of any third party; (c) it has the right to grant, and hereby grants, Buyer a licence to use any software embedded or incorporated into any Ordered Items; (d) all Services will be performed with best care, skill and diligence and in accordance with good industry practice; and (e) it has complied and shall comply with all laws applicable to its performance under the Agreement.
Buyer may terminate the Agreement in whole or in part (i) upon 15 days’ written notice to Seller at any time for convenience (ii) immediately upon written notice if Seller defaults in the performance of its obligations under the Agreement and is unable to cure the default within 10 days following notice of the default, (iii) immediately upon written notice in the event the Seller suffers an event of insolvency including suspending, or threatening to suspend, payment of its debts or being deemed unable to pay its debts in the ordinary course as determined by Buyer in its reasonable determination or 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 Seller; 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 Seller. Upon the termination of the Agreement, in whole or in part, by Buyer for any reason, Seller shall immediately (a) stop all work under the terminated Agreement, (b) cause any of its suppliers or subcontractors to cease work, and (c) preserve and protect work in progress and materials on hand purchased for or committed to under the Agreement in its own and in its suppliers' or subcontractors' plants pending Buyer's instructions. Buyer shall not owe Seller any lost profit or payment for any materials or Goods that Seller may consume or sell to others in its ordinary course of business.
9. Indemnity.
Seller shall defend, indemnify and hold harmless Buyer, its affiliates, officers, employees and agents against all claims, damages, liability, losses, fines, or judgments, including costs, legal fees, and other expenses (whether direct or indirect), relating to or arising out of (a) Seller’s breach of the Agreement; (b) death or injuries to persons or property due to Seller’s breach of the Agreement; (c) the failure of the Goods or Seller's performance of the Services to comply with the requirements of the Agreement; (d) infringement of a third party’s intellectual property rights in any Goods or Services; or (e) fraud or fraudulent misrepresentation.
10. Catastrophic Defects.
Seller shall, within 30 days of Buyer's demand, indemnify Buyer or its designated third party service provider for all costs and expenses of parts, labour, administrative costs, shipping costs, replacement Goods costs and other expenses (including reasonable attorneys’ fees and expenses) related to or arising from a Catastrophic Defect, Goods recall or Goods field fix. “Catastrophic Defect” will be deemed to occur when: (a) the representations and warranties set forth in Section 7 are breached with respect to (i) 3% or more of the Goods shipped within any three-month period, or (ii) 1% of the Goods shipped within the first six months of the initial agreement between Seller and Buyer; (b) the return and exchange rate of the Goods sold by Seller to Buyer is in excess of the category average for the Goods, as determined by Buyer’s records; (c) a single or single group of defects in Goods (any manufacturing defect that affects the Goods cosmetically or functionally) is determined by Buyer to impact more than 10% of such Goods; (d) Goods (including any service parts, replacement parts, spare parts, assemblies and tools required for servicing Goods) recall is necessary in the reasonable opinion of Buyer or Seller; or (e) the Goods should be pulled from the marketplace to comply with applicable law as determined by Buyer in its sole discretion (including but not limited to, cases of a voluntary or mandatory consumer Goods safety recall).
11. Insurance.
Seller shall, and shall require that its subcontractors shall, obtain and at all times maintain, from reputable insurance companies, adequate levels of insurance (including, but not limited to, product liability and public liability) to cover its obligations under this Agreement and under applicable law. At Buyer's request, Seller shall have Buyer added as an additional insured on the commercial general liability insurance policy and shall furnish Buyer with a certificate of insurance and applicable insurance policy endorsements evidencing such insurance. The Seller shall do nothing to invalidate any insurance policy or to prejudice the Buyer's entitlement under it and notify the Buyer if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change. If any part of the Agreement involves Seller’s performance on the Buyer’s premises or at any place where the Buyer conducts operations, or with material or equipment furnished to Seller by Buyer, Seller shall take all necessary precautions to prevent injury to person or property during the progress of Seller’s work.
To the extent that Seller is required to process any personal data (within the meaning of the Data Protection Act 1998 (as amended and updated) “DPA”) on behalf of Buyer during the provision of Ordered Items, Seller shall only process such personal data as instructed by Buyer and in such a manner as is necessary. Seller shall ensure that: it complies, at all times, with the terms of the DPA; and takes all appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data and against any accidental loss, destruction or damage to such personal data. Seller shall promptly comply with any request from Buyer requiring Seller to amend, transfer or delete the personal data, and shall immediately notify Buyer if it receives any complaint, notice or communication which relates directly or indirectly to the processing of the personal data, and shall provide all necessary co-operation and assistance in relation to any such compliant, notice or communication. Seller agrees to defend, indemnify and hold harmless Buyer, its affiliates, officers, employees and agents against all claims, damages, liability, losses, fines, or judgments, including costs, legal fees, and other expenses (whether direct or indirect), relating to or arising out of any breach by the Seller of this section 12.
13. Limitation of Liability.
In no event shall Buyer's aggregate liability for any loss or damage arising out of or in connection with or resulting from the Agreement exceed the price allocable to the Goods or Services or unit thereof which gives rise to the claim, except that the Seller may charge the Buyer interest on any payment received later than 60 days after its due date in accordance with Section 3 at a rate of 2% per annum. Nothing in this section 12 shall limit or exclude liability for: (i) death or personal injury caused by negligence (ii) or fraud or fraudulent misrepresentation.
14. Governing Law/Jurisdiction.
The Agreement, its interpretation and any disputes arising out of or in connection with it (including non-contractual disputes) shall be governed by, and construed in accordance with, the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales. Buyer and Seller expressly acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) does not apply to the Agreement and such parties have voluntarily elected to opt out of the application of CISG to the Agreement. Buyer's rights under the Agreement are cumulative and in addition to any other legal or equitable remedies it may have against Seller.
15. Compliance Matters.
Seller must comply with all Buyer policies applicable to, and notified to, Seller. Seller must strictly comply with all applicable statutes, laws and regulations (“Laws”), including without limitation, all applicable environmental, health and safety, trade, and import/export Laws. Seller agrees to notify Buyer on any inherent hazard related to the Goods being purchased under the Agreement that would expose the hazard during the handling, transportation, storage, use, resale, disposal or scrapping of the Goods. Said notice shall be sent to Buyer’s Global Supply Chain Manager and shall specify the product name, the nature of the hazard, property precautions that must be taken by Buyer or others, all applicable Safety Data Sheets, and any other additional information that Buyer should reasonably expect to know to protect its interest, property and/or personnel.
16. Seller As An Independent Contractor.
Seller shall perform the obligations of the Agreement as an independent contractor and under no circumstances shall be considered to be an agent or employee of Buyer. The Agreement shall not in any way be construed as creating a partnership or any other kind of joint undertaking between Buyer and Seller. Seller is solely responsible for all federal, state and local taxes, contributions and other liabilities with regard to payments by Buyer to Seller.
Seller shall at all times conduct its activities in accordance with all applicable laws, rules, regulations, sanctions and orders related to anti-bribery or anti-corruption legislation including, but not limited to, the Bribery Act 2010 (“Relevant Requirements"). The Seller shall (i) comply with all policies of the Buyer regarding anti-bribery and anti-corruption as may be notified to it from time to time, and any relevant industry code, in each case as the Buyer or the relevant industry body may update them from time to time (“Relevant Policies”) and (ii) have and maintain in place throughout the term of this Agreement its own policies and procedures to ensure compliance with the Relevant Requirements and the Relevant Policies and will enforce them where appropriate (iii) promptly report to the Buyer any request or demand for any undue financial or other advantage of any kind received by the Seller in connection with the performance of this Agreement; (iv) immediately notify the Buyer if a foreign public official becomes an officer or employee of the Seller or acquires a direct or indirect interest in the Seller (and the Seller warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this Agreement); (v) within six months of the date of this Agreement, and annually thereafter, certify to the Buyer in writing signed by an officer of the Seller, compliance with this section 17 by the Seller and all other persons for whom the Seller is responsible pursuant to this Section 17. Seller shall provide such supporting evidence of compliance as the Supplier may reasonably request. Seller shall ensure that any person associated with the Seller who is performing services or providing goods in connection with this Agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Seller in this section 17 (“Relevant Terms”). The Seller shall in all circumstances be responsible for the observance and performance by such persons of the Relevant Terms, and shall in all circumstances be directly liable to the Buyer for any breach by such persons of any of the Relevant Terms howsoever arising. Breach of this section 17 shall be deemed a irremediable, material breach of this Agreement by the Seller.
18. Cooperation.
Seller shall provide all such evidence as the Buyer may reasonably request in order to verify any invoices submitted by the Seller or any discount statement or other cost reductions achieved by the Seller (including the dates on which cost reductions were achieved). In addition, the Supplier shall, on request, allow the Buyer to inspect and take copies of (or extracts from) all relevant records and materials of the Seller relating to the supply of the Goods as may be reasonably required in order to verify such matters.
The invalidity of any provision contained in the Agreement will not affect the validity of any other provision. This Agreement, together with any previous confidentiality agreement entered into between the parties, constitutes the entire agreement and understanding of the parties relating to the subject matter hereof. This Agreement supersedes all prior written and oral agreements and all other communications between the parties. Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. Buyer's failure to insist on performance of any term or condition or to exercise any right or privilege shall not waive any such term, condition, right or privilege unless such waiver is set out in writing and signed by both parties. The Agreement may be amended or modified only by a written instrument separately signed by Buyer or Seller. Seller shall not subcontract, encumber or assign its rights and obligations under the Agreement, in whole or in part, without Buyer's prior written consent. The provisions of Sections 6-10, 12, 14 and 19 survive termination of the Agreement. Nothing in the Agreement confers upon any person other than Seller and Buyer any right or remedy under or by reason of this Agreement. The Seller shall, at the request and cost of the Buyer, do or procure the doing of all such further acts, and execute or procure the valid execution of all such document, as may from time to time be necessary in the Buyer’s reasonable opinion to give full effect to this Agreement. All notices, requests, consents and other communications required or permitted to be delivered hereunder must be made in writing and delivered by facsimile or by hand, via overnight delivery service or by registered or certified mail, postage prepaid, to the address or facsimile number of the other party in the Purchase Order (or such other address or facsimile number as may be notified in writing by that party for these purposes). Notices shall be deemed to be received at the time at which it would have been delivered in the normal course of post, or in the case of facsimile, on the date on which the facsimile is transmitted by the sender according to the facsimile confirmation report.
TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale, along with any attached term sheet (“Term Sheet”) (collectively, the “Agreement”) govern in all respects all sales and prospective sales of any products (“Products”) and services (the “Services”) from the TV One Limited legal entity that is named on the Term Sheet, or if not so named, which is actually selling the Products or Services (“Seller”) to the purchaser named on the Term Sheet, or if not so named, which is actually purchasing the Products or Services (“Buyer”) to the exclusion of all other terms and conditions (including any terms and conditions that the Buyer purports to apply under any purchase order, confirmation of order, specification or other document). Buyer acknowledges that Seller, through its affiliates (i.e., parents, subsidiaries and other affiliates) offers expanded manufacturing capability, and Seller may in its sole discretion manufacture, supply or deliver from any location or source, including any of its affiliates, any Products or Services and such manufacture, supply or delivery from such affiliates shall also be subject to these Terms and Conditions.
1. Prices and Taxes. Prices are those in effect when Seller accepts a purchase order, or a Term Sheet is signed or accepted. Where no price is stated, any Services will be provided on a time and materials basis. Seller may accept or reject purchase orders in its sole discretion. No order shall be accepted (and accordingly the Seller shall not be placed under any obligations or liability under any Agreement) until the Seller issues a written acknowledgement to the Buyer, the Term Sheet is signed or accepted by both parties, or the Seller delivers Products or Services to the Buyer (whichever occurs earlier). Unless otherwise stated in writing, each order when accepted constitutes a separate Agreement. Unless stated otherwise in the Term Sheet, all prices are expressed exclusive of VAT (or other sales tax) and all costs or charges in relation to loading, unloading, carriage and insurance. All prices, models and material specifications are subject to change or withdrawal by Seller at any time prior to an order being accepted or in accordance with Section 3. Prices may only be varied after this time (and prior to delivery or performance) on written notice to the Buyer, by reason of an increase in the cost of raw materials or labour or by reason of fluctuation in exchange rates, and the Buyer shall be entitled to cancel the order without incurring liability, provided such cancellation is received by the Seller in writing at least twenty-eight days prior to the notified delivery or performance date (or, if earlier) within fourteen days of the Seller’s notice.
2. Payment. Terms of payment are 30 days from date of invoice, unless stated otherwise on the Term Sheet. Buyer must pay all amounts by bank transfer to the account designated by Seller, without any deduction by way of set-off, counterclaim, discount, abatement or otherwise. All prices are quoted, and must be paid, in Pounds Sterling, or as otherwise specified in the Term Sheet. If Buyer fails to make any payment or pay any invoice according to its terms, or upon such credit terms as expressly agreed to in writing by Seller, then, in addition to all other rights and remedies available to Seller: (a) Buyer is responsible for any and all commercially reasonable charges, expenses or commissions incurred by Seller in stopping delivery, transportation and storage of Products, and in connection with the return or resale of Products; (b) Seller has the right to terminate the Agreement or suspend further performance under the Agreement and other agreements with Buyer; (c) Buyer shall be liable to Seller for all reasonable costs of recovering the monies owed, including reasonable attorneys’ fees; and (d) the Seller shall be under no obligation to make any future deliveries. The Seller may, at its option, charge the Buyer interest (calculated on a daily basis) on any overdue payment from the date when such payment was due to the date of actual payment.
3. Changes. Seller may revise prices, dates of delivery, and warranties upon acceptance of requests by Buyer for modifications to Products or Services. If Buyer rejects proposed changes to made-to-order Products deemed necessary by Seller to conform to the applicable specification, Seller is relieved of its obligation to conform to such specification to the extent that conformance may be affected by such objection in the reasonable opinion of Seller.
4. Shipment and Delivery. Delivery of Products and risk of loss pass to Buyer EXW per INCOTERMS 2010 (Seller’s premises) unless stated otherwise in the Term Sheet. The Buyer shall provide at its expense at the point of delivery adequate and appropriate equipment and manual labour for loading the Products. Buyer is responsible for all demurrage or detention charges. Any claims for shortages or damages must be notified to the Seller within three days of delivery and any shortages or damages suffered in transit must also be submitted directly to the carrier and will be subject to the relevant conditions of carriage. All shipping dates are approximate and not guaranteed and time of delivery shall not be of the essence. Seller reserves the right to make partial shipments or deliver in instalments and to invoice the Buyer for each instalment dispatched. Seller is not bound to tender delivery of any Products for which Buyer has provided incomplete or inaccurate shipping instructions. If the Buyer fails to accept or take delivery of the Products within five business days of the Seller notifying the Buyer that the Products are ready, or if shipment of Products is postponed or delayed by Buyer for any reason, including a Force Majeure Event (defined in Section 9), Seller may move Products to storage for the account of and at the risk of Buyer and the Products will be deemed delivered. Products may not be returned except with the prior written consent of Seller, which may include additional terms. The Seller shall not be liable for any non-delivery of Products (even if caused by the Seller’s negligence) unless written notice is given by the Buyer to the Seller within ten days of the date when the Products would in the ordinary course of events have been received. A signed acceptance document of the Buyer’s carriage shall be proof of proper delivery. Any liability for non-delivery shall be limited to, at the Seller’s discretion: (i) replacing the Products within a reasonable time (ii) issuing a credit note at the pro-rata purchase price against any invoice raised for such Products; or (iii) a refund of the purchase price paid.
5. Inspection. Unless agreed otherwise in the Term Sheet, Buyer shall inspect Products upon receipt at the destination. Buyer’s failure to inspect Products and give written notice to Seller of any alleged defects or non-conformity within ten days after receipt at destination shall constitute Buyer’s irrevocable acceptance of Products delivered, except that in the case of latent defects not apparent on a reasonable inspection, Buyer shall have ten days from being reasonably aware of such latent defect.
6. Limited Warranty.
6.1 The Seller warrants to the Buyer that the following products shall be sold with a full repair or replacement warranty, only for the periods specified below from the date of purchase (specified on the Term Sheet):
PRODUCT CATEGORIES WARRANTY PERIOD (years, from date of purchase)
(A) TvONE™ branded products based on tvONE™ ’s CORIO™ technology, including products with model number prefixes CM2, C2, 1T-C2, C3, CX, A2, or S2 (5 years)
(B) ONErack™ branded products (1 year)
(C) All other TvONE™ products including all other products with model number prefixes 1T (other than those listed under categories A-B) (1 year)
(D) Magenta™ branded products (5 years)
6.2 Where the Buyer wishes to exercise its rights under the relevant warranty, the Buyer must obtain a Return Authorization Number from the Seller and return the product to a location designated by the Seller (delivery prepaid). After repairs are complete, the product will be returned (at the Seller’s cost).
6.3 The Products are sold “as is”. The Seller makes no warranties or representations that the Products will satisfy any particular purpose of the Seller.
6.4 The above limited warranties set out the full warranties for the Products, to the exclusion of any other warranties (expressed or implied), and is strictly limited to the applicable stated number of years from the date of purchase.
7. Limitation of Remedy and Liability. THE BUYER’S ATTENTION IS PARTICULAR DRAWN TO THE PROVISIONS OF THIS CONDITION 7. (a) Seller’s total liability under or in connection with this Agreement, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, or other otherwise (each an “Action”), shall not exceed 100% of the price paid by Buyer under the Agreement for the Product or Services giving rise to the Action. (b) Under no circumstances shall Seller be liable for: (i) any special, incidental, indirect, punitive or consequential damages for any reason; (ii) loss of profit (iii) loss of business (iv) loss of revenue (v) depletion of goodwill (vi) loss of reputation or data; or (vii) costs incurred for capital, fuel, power or environmental cleanup (whether the loss or damage set out in (ii)-(vii) is considered to be direct or indirect). (c) Nothing in this Agreement excludes or limits the liability of the Seller for (i) death or personal injury caused by the Seller’s negligence (ii) fraud or fraudulent misrepresentation; or (iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or section 12 of the Sale of Goods Act 1979 (title and quiet possession) or (iv) any other type of loss that cannot be excluded or limited under applicable law. Any Action must be commenced with one year after the date of shipment or the Products or completion of the Services (except for any Actions arising out of latent defects, which must be commenced within one year of the latent defect becoming reasonably apparent upon inspection). Seller assumes no obligation or liability for technical advice given or not given, or results obtained. The Buyer acknowledges and accepts that the limits and exclusions set out in this Agreement are reasonable having regard to the circumstances and that the Seller has set its prices and entered into the Agreement in reliance upon such terms.
8. Excuse of Performance. Neither party shall be considered in default of its performance of any obligation under the Agreement (other than an obligation to make any payment due under the Agreement) to the extent that performance of such obligation is prevented or delayed by acts of God; war (declared or undeclared); terrorism or other criminal conduct; fire; flood; weather; sabotage; strikes, or labour or civil disturbances; governmental requests, restrictions, laws, regulations, orders, omissions or actions; unavailability of, or delays in, utilities or transportation; default of suppliers or other inability to obtain necessary materials; embargoes or any other events or causes beyond that party’s reasonable control, (each, a “Force Majeure Event”). In the event of a Force Majeure Event, the date of delivery will be extended by a period equal to the delay plus a reasonable time to train and resume production, and the price will be equitably adjusted to compensate Seller for such delay and related costs and expenses.
9. Laws and Regulations. Compliance with any applicable laws (including the Health and Safety at Work etc Act 1974), regulations and codes of practice relating to the installation, operation or use of Products or Services is the sole responsibility of Buyer. This Agreement, its interpretation and any disputes arising out of or in connection with it (including non-contractual disputes) shall be governed by the laws of England and Wales and both parties hereby agree to submit to the exclusive jurisdiction of the Court of England and Wales. The application of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
10. Drawings and Intellectual Property. Any designs, manufacturing drawings or other information or descriptive matter issued by the Seller or appearing on its website or brochures are issued or published for the sole purpose of giving an approximate idea of the Products described therein. They will not form part of the Agreement. Any such material made available to Buyer (and all intellectual property rights therein) shall remain the exclusive property of Seller. Buyer shall not, without Seller’s prior written consent, copy such information or disclose such information to a third party. All intellectual property rights in or arising out of or in connection with the Services shall be owned by the Seller. The Buyer shall indemnify and keep indemnified the Seller against all direct or indirect liabilities, claims, costs, damages and expenses (including legal costs) (“Costs”) incurred or sustained by the Seller, to the extent that such Costs arise as a result of any Products being made to any design or specification supplied by the Buyer.
11. Cancellation. Buyer may cancel orders only upon reasonable advance written notice and upon payment to Seller of cancellation charges which include: (a) all costs and expenses incurred by Seller, and (b) a fixed sum of 10% of the total price of Products to compensate for disruption in scheduling, planned production and other indirect and administrative costs. The Seller shall have the right to terminate or suspend any Agreement on written notice to the Buyer if (i) the Buyer commits a material breach of any of the terms of this Agreement and fails to remedy the same (if remediable) within 30 days of being notified of the breach; or (ii) the Buyer suffers an event of insolvency including: suspending, or threatening to suspend, payment of its debts or being deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or 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 Buyer (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 Buyer (being a company). Upon termination or during any period of suspension, the Seller shall not be obliged to supply (and shall be entitled to recover from the Buyer’s premises) any Products or Services ordered by the Buyer unless already paid for in full, and all payments payable to the Seller under the Agreement shall become immediately due and payable.
12. Buyer’s Obligations. The Buyer shall (i) ensure that the terms of any purchase order and any product specification (if issued by Buyer) are complete and accurate; (ii) co-operate the Seller in all matters relating to the Services; and (iii) provide the Seller and its employees or agents with access to the Seller’s premises and other facilities, and provide all information and materials, as reasonably required in order to provide any Services, and ensure that such information is accurate in all material respects. Any failure to do so shall be considered a Force Majeure Event for the Seller pursuant to Condition 8. Certain Products may be subject to export controls under applicable law. Buyer warrants that it shall comply with all such laws and not export, re-export or transfer, directly or indirectly, any such Product except in compliance with such laws and it shall obtain any necessary licence, permit or authority that may be required in connection with the supply of Products or Services to be carried under the Agreement.
13. Retention of Title. Title to any software provided with Products remains with Seller or its supplier and is licensed, not sold, to the Buyer. Title to Products shall not pass to Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of the Products and all other sums which are or which become due to the Seller from the Buyer on any account. Until such time, the Buyer must (i) hold the Products on a fiduciary basis as the Seller’s bailee; (ii) where physically possible (but not so as to prevent or restrict use of the Products by the Buyer) keep the Products separately stored and identified as Seller’s property; (iii) not destroy, deface or obscure any identifying mark on or relating to the Products; (iv) maintain the Products in satisfactory condition and keep them insured on the Seller’s behalf for their full price against risks to the reasonable satisfaction of the Seller; and (ii) hold the proceeds of sales of such insurance on trust for the Seller and not mix them with any other money nor pay the proceeds into an overdrawn bank account. The Buyer’s right to possession shall terminate immediately in the event an Agreement is cancelled by the Buyer pursuant to an event of insolvency as set out in Section 11. The Buyer grants and shall procure an irrevocable right to the Seller or its agents to enter any premises where the Products are kept or may be stored in order to inspect them, or where the Buyer’s right to possession has terminated, to recover them.
14. General Lien. The Seller shall have a general lien over any goods of the Buyer in its possession for any monies whatsoever due from the Buyer to the Seller. If any lien is not satisfied within 14 days of such monies becoming due, the Seller may in its absolute discretion sell the goods as agents for the Buyer and apply to proceeds towards the monies due and the expenses of the sale and shall upon accounting to the Buyer for the balance (if any) remaining be discharged from all liability whatsoever in respect of the goods.
15. Confidentiality. The confidentiality agreement entered into between the parties [and referred to in the Term Sheet] (the “Confidentiality Agreement”), will govern the exchange of any “Confidential Information” (as such term is defined in the Confidentiality Agreement) for purposes of carrying out the intent of this Agreement and shall be considered a part of this Agreement as if set forth herein.
15. Data Protection. In this clause 12 “Act” refers to the UK Data Protection Act 1998 (as amended and superseded by the UK Data Protection Act 2018) and “GDPR” refers to the EU General Data Protection Regulation (2016/679). Data Protection Laws refers, collectively, to the Act, the GDPR and any UK implementing laws, regulations and secondary legislation under the GDPR (from time to time). Terms used in this clause 16 relating to data privacy/protection (but not otherwise defined) such as personal data, data processor and data subject, shall have the meaning(s) given to them in the Act or the GDPR (as applicable).
The Buyer expressly acknowledges that the Seller will process limited amounts of personal data solely to the extent necessary to sell the Products to the Buyer, and provide any services under any applicable warranty. The categories of personal data required to be processed shall be limited to those categories stated in the Seller’s privacy policy (available on its website) and as contained in the relevant purchase orders (or related correspondence) issued under this Agreement.
Personal data shall be processed solely in connection with the sale of the Products and thereafter only retained to the extent it is reasonably required for internal record keeping purposes or under any Product warranty. The Seller shall not retain personal data indefinitely and will comply with the GDPR in relation to the secure destruction of personal data at the appropriate time.
The Seller warrants to the Buyer that it has in place appropriate technical and organizational measures to protect against the unauthorized or unlawful processing of, or accidental loss, destruction or damage to, personal data (appropriate to the harm that might result, given the nature and sensitivity of the data being processed).
The Seller formally notifies, and the Buyer expressly acknowledges, that personal data it processes under or in connection with this Agreement will be stored within the Seller’s enterprise resource planning software, hosted by NetSuite™ (in conjunction with Oracle on the terms of Oracle’s privacy policy available at https://www.oracle.com/legal/privacy/index.html) from servers located in the United States. Further details are available in the Seller’s privacy policy.
The Seller shall restrict disclosures of, and access to, personal data to those personnel who need to know (for the purposes of this Agreement and the fulfilment of Product orders and warranties) and who are aware of their obligations to protect personal data under the GDPR.
The Seller shall, additionally:
(i) notify the Buyer as soon as reasonably practicable on becoming aware of a personal data breach, including, without limitation, if any personal data is lost, destroyed or becomes damaged, corrupted or unusable, and where requested or required to assist, to notify the data subject of such breach;
(ii) the written direction of the Buyer, transfer, delete or return personal data (including any copies) to the Buyer, unless required by applicable law to retain the personal data.
16. General Provisions. The Agreement, together with any previous confidentiality agreement entered into between the parties, constitutes the entire agreement between the parties in respect of its subject matter and supersedes any previous agreement or other communications between the parties relating to such subject matter. Each party acknowledges that, in entering into the Agreement, it has not relied on, and shall have no right or remedy in respect of, any representation or warranty (whether made negligently or innocently) that is not set out in this Agreement. Each party agrees that its only liability in respect of such representations and warranties (whether made innocently or negligently) shall be for breach of contract. Nothing in this Section 16 limits or excludes any liability for fraud. No variation of this Agreement shall be binding unless made in writing and signed by both parties. No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver is expressed in writing signed by both parties. Nothing in the Agreement confers upon any person other than Seller and Buyer any right or remedy under or by reason of this Agreement by virtue of the Contracts (Right of Third Parties) Act 1999 or otherwise. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction. The Buyer shall, at the request and cost of the Seller, do or procure the doing of all such further acts, and execute or procure the valid execution of all such document, as may from time to time be necessary in the Seller’s reasonable opinion to give full effect to this Agreement. The Seller shall be entitled to sub-contract any of its obligations under this Agreement but shall be responsible for the action or omissions of any sub-contractor used by it. The Seller shall, without notice to the Buyer, be entitled to assign or encumber or grant security over this Agreement or any of its rights hereunder. The Buyer shall not assign its interest in this Agreement without the prior written consent of the Seller. The invalidity or unenforceability of any clause or part of any clause of this Agreement shall not affect the validity or enforceability of the remaining clauses or parts of that clause. Any clause or part of a clause that is held by a court of competent jurisdiction to be invalid or unenforceable shall be deemed deleted from this Agreement and, without prejudice to the foregoing, on such deletion, the parties shall agree in writing such amendments to this Agreement as may be necessary for the continued validity and enforceability of the remaining clauses. All notices, requests, consents and other communications required or permitted to be delivered hereunder must be made in writing and delivered by facsimile or by hand, via overnight delivery service or by registered or certified mail, postage prepaid, to the address or facsimile number of the other party in the Term Sheet (or such other address or facsimile number as may be notified in writing by that party for these purposes). Notices shall be deemed to be received at the time at which it would have been delivered in the normal course of post, or in the case of facsimile, on the date on which the facsimile is transmitted by the sender according to the facsimile confirmation report.
TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale and the non-conflicting provisions in Seller’s quotation (if any), acknowledgement or invoice from Seller (collectively, the “Agreement”) govern in all respects all sales of any Products (“Products”) and services (the “Services”) from TV One Broadcast Sales Corporation, a Kentucky corporation (“Seller”) to purchaser (“Buyer”). Buyer acknowledges that Seller, through its affiliates (i.e., parents, subsidiaries and other affiliates) offers expanded manufacturing capability, and Seller may in its sole discretion manufacture, supply or deliver from any location or source, including any of its affiliates, any Products or Services and such manufacture, supply or delivery from such affiliates shall also be subject to these Terms and Conditions.
1. Prices and Taxes. Prices are those in effect when Seller accepts a purchase order. Seller may accept or reject purchase orders in its sole discretion. Buyer must pay or promptly reimburse Seller for any sales, use or any other local, state, provincial or federal taxes arising from the sale or delivery of the Products and Services or provide an exemption certificate. All prices, models and material specifications are subject to change or withdrawal by Seller without notice.
2. Payment. Terms of payment are net 30 days from date of invoice. Buyer must pay all amounts by wire transfer to the account designated by Seller. All prices are quoted, and must be paid, in United States dollars, or as otherwise specified on the quotation. If Buyer fails to make any payment or pay any invoice according to its terms, or upon such credit terms as expressly agreed to in writing by Seller, then, in addition to all other rights and remedies available to Seller: (a) Buyer is responsible for any and all commercially reasonable charges, expenses or commissions incurred by Seller in stopping delivery, transportation and storage of Products, and in connection with the return or resale of Products; (b) Seller has the right to terminate the Agreement or suspend further performance under the Agreement and other agreements with Buyer; and (c) Buyer shall be liable to Seller for all reasonable costs of collection, including reasonable attorneys’ fees. Past due amounts are subject to service charges of 1½% per month (or the maximum amount permitted by law) and, if credit terms have been agreed to in writing, Seller reserves the right to charge lawful rates of interest upon any outstanding balance, whether past due or not.
3. Changes. Seller may revise prices, dates of delivery, and warranties upon acceptance of requests by Buyer for modifications to Products or Services. If Buyer rejects proposed changes to made-to-order Products deemed necessary by Seller to conform to the applicable specification, Seller is relieved of its obligation to conform to such specification to the extent that conformance may be affected by such objection in the reasonable opinion of Seller.
4. Shipment and Delivery. Deliveries of Products, title and risk of loss pass to Buyer FOB Seller’s facility (EXW per INCOTERMS 2010 for international shipments). Buyer is responsible for all demurrage or detention charges. Title to any software provided with Products remains with Seller or its supplier. Any claims for shortages or damages suffered in transit must be submitted directly to the carrier. All shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments. Seller is not bound to tender delivery of any Products for which Buyer has not provided shipping instructions. If shipment of Products is postponed or delayed by Buyer for any reason, including a Force Majeure Event (defined in Section 9), Seller may move Products to storage for the account of and at the risk of Buyer and the Products will be deemed delivered. Products may not be returned except with the prior written consent of Seller, which may include additional terms.
5. Inspection and Acceptance. Seller must give prior consent to pre-delivery inspection or factory acceptance testing, which will be at a time acceptable to Seller. Buyer has until the earlier of two days prior to shipping or 10 days following factory acceptance testing to notify Seller in writing of any specific objections, and failure to so notify constitutes acceptance of and authorization to deliver Products. If the Agreement provides for site acceptance testing, Seller must verify that Products were delivered without physical damage and are in good operating condition. Completion of any site acceptance testing constitutes full and final acceptance of Products. Acceptance testing is deemed completed and Products accepted by the earlier of the 30th day following delivery of Products and the use or resale of the Products, unless the parties otherwise agree in writing.
6. Limited Warranty. (a) Seller warrants: (i) All Products (excluding software and spare parts) manufactured by Seller will conform to the specifications provided by Seller and will be free of defects in material and workmanship (“Defects”) for 12 months following installation or 18 months following ship date, whichever occurs first, under normal use and regular service and maintenance, if installed pursuant to Seller’s instructions. New spare parts will be free of Defects for 12 months following ship date. Buyer must notify Seller of any Defect promptly upon discovery and if such notification occurs within the applicable warranty period, Seller shall remedy such Defect by, at Seller’s option, adjustment, repair or replacement of Products or any affected portion of Products, or providing a refund of the portion of the purchase price attributable to the defective portion of the Product. Buyer assumes all responsibility and expense for removal, reinstallation and freight charges (both for return and delivery of new parts). Buyer must grant Seller access to the premises at which Products are located at all reasonable times so that Seller can evaluate any Defect and make repairs or replacements on site. Repaired or replaced portions of Products are warranted until the later of the end of the warranty period applicable to the defective portion of Products repaired or replaced; or 30 days following the completion of the repair or ship date of the replacement parts; and (ii) Services will be of workmanlike quality. If Buyer notifies Seller of any nonconforming Services within 30 days after Services are completed, Seller shall re-perform, if able to be cured, those Services directly affected by such failure, at its sole expense. Buyer’s sole remedy for such nonconforming Services is limited to the cost of re-performing the Services.
(b) Buyer is responsible for disassembly and re-assembly of non-Seller supplied products. Seller does not warrant and shall have no obligation with respect to any Products that: (i) have been repaired or altered by someone other than Seller; (ii) have been subject to misuse, abuse, neglect, intentional misconduct, accident, Buyer or third party negligence, unauthorized modification or alteration, use beyond rated capacity, a Force Majeure Event, or improper, or a lack of, maintenance; (iii) are comprised of materials provided by, or designed pursuant to instructions from, Buyer; (iv) have failed due to ordinary wear and tear; or (v) have been exposed to adverse operating or environmental conditions. Products and third party software supplied by Seller, but manufactured or created by third parties are warranted only to the extent of the manufacturer’s warranty and to the extent such manufacturer permits Seller to pass any third-party warranty through to Buyer. If Seller has relied upon any specifications, information, representations or descriptions of operating conditions or other data supplied by Buyer or its agents to Seller in the selection or design of Products, and actual operating conditions or other conditions differ, any warranties or other provisions contained herein that are affected by such conditions will be null and void.
(c) Buyer is solely responsible for determining the fitness and suitability of Products for the use contemplated by Buyer. Buyer shall ensure that (i) the Products are used only for the purposes and in the manner for which they were designed and supplied, (ii) all persons likely to use or come into contact with the Products receive appropriate training and copies of applicable instructions and documentation supplied by Seller, (iii) all third parties who use or may be affected by or rely upon the Products are given full and clear warning of any hazards associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with, (iv) any warning notices displayed on the Products are not removed or obscured, (v) any third party to whom the Products are supplied agrees not to remove or obscure such warning notices. Buyer assumes all responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Products, either alone or in combination with other Products or components.
(d) THE WARRANTIES SET FORTH IN THIS SECTION 6 ARE SELLER’S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO PRODUCTS AND SERVICES, AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AGAINST INFRINGEMENT; AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, USAGE OF TRADE, AND FITNESS FOR A PARTICULAR PURPOSE. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Buyer. THE REMEDIES PROVIDED IN THIS SECTION 6 ARE BUYER’S SOLE REMEDIES FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO PRODUCTS AND SERVICES. All warranty claims must be received by Seller on or before the end of the applicable warranty period.
7. Limitation of Remedy and Liability. Seller’s total liability under the Agreement, whether in law, equity, contract, infringement, negligence, strict liability or other otherwise, shall not exceed the price paid by Buyer under the Agreement for the Product or Services giving rise to the claim. Under no circumstances shall Seller be liable for special, incidental, indirect, punitive or consequential damages for any reason. “Consequential damages” includes, without limitation, loss of anticipated profits; business interruption; loss of use, revenue, reputation or data; costs incurred, including without limitation, costs for capital, fuel or power; loss or damage to property or equipment; and environmental clean-up. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Buyer. Any action arising under or relating to the Agreement, (whether based in law, equity, contract, infringement, negligence, strict liability, other tort or otherwise), must be commenced with one year after the date of shipment or delivery of Services. Seller assumes no obligation or liability for technical advice given or not given, or results obtained. Seller has set its prices and entered into the Agreement in reliance upon the limitations of liability and other terms and conditions specified herein, which allocate the risk between Buyer and Seller and form a basis of this bargain between the parties.
8. Excuse of Performance. Seller has no liability for non-performance due to acts of God; acts of Buyer; war (declared or undeclared); terrorism or other criminal conduct; fire; flood; weather; sabotage; strikes, or labor or civil disturbances; governmental requests, restrictions, laws, regulations, orders, omissions or actions; unavailability of, or delays in, utilities or transportation; default of suppliers or other inability to obtain necessary materials; embargoes or any other events or causes beyond Seller's reasonable control (each, a “Force Majeure Event”). Neither party shall be considered in default of its performance of any obligation under the Agreement (other than an obligation to make any payment due under the Agreement) to the extent that performance of such obligation is prevented or delayed by acts of God; war (declared or undeclared); terrorism or other criminal conduct; fire; flood; weather; sabotage; strikes, or labor or civil disturbances; governmental requests, restrictions, laws, regulations, orders, omissions or actions; unavailability of, or delays in, utilities or transportation; default of suppliers or other inability to obtain necessary materials; embargoes or any other events or causes beyond Seller’s reasonable control or other cause beyond such Party’s reasonable control, (each, a “Force Majeure Event”). Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of a Force Majeure Event, but the remainder of the Agreement will otherwise remain unaffected as a result of the Force Majeure Event. If Seller determines that its ability to perform the Services or the total demand for Products is hindered, limited or made impracticable due to a Force Majeure Event, Seller may delay delivery of Products and Services and allocate its available supply of Products (without obligation to acquire other supplies of any such Products) among its customers on such basis as Seller determines to be equitable without liability for any failure of performance. In the event of a Force Majeure Event, the date of delivery will be extended by a period equal to the delay plus a reasonable time to train and resume production, and the price will be equitably adjusted to compensate Seller for such delay and related costs and expenses.
9. Laws and Regulations. Compliance with any federal, state, provincial or local laws, regulations and directives (“Laws”) relating to the installation, operation or use of Products or Services is the sole responsibility of Buyer. In addition, Buyer shall comply with all applicable laws, rules, regulations and orders related to anti-bribery or anti-corruption legislation (including without limitation the U.S. Foreign Corrupt Practices Act of 1977 and all national, state, provincial or territorial anti-bribery and anticorruption statutes) and, as such, will make no offer, payment or gift, will not promise to pay or give, and will not authorize, directly or indirectly, the promise or payment of, any money or anything of value to any government official, any political party or its officials, or any person while knowing or having reason to know that all or a portion of such money or item of value will be offered, given or promised for the purpose of influencing any decision or act to assist Seller or Buyer or otherwise obtaining any improper advantage or benefit. The Agreement is governed by the laws of the State of Kentucky, without giving effect to its conflict of laws rules, and the parties consent to the exclusive jurisdiction and venue of the federal and state courts located in Kenton County, Kentucky. The application of the United Nations Convention on Contracts for the International Sale of Goods does not apply.
10. Drawings. Any designs, manufacturing drawings or other information submitted to Buyer remain the exclusive property of Seller. Buyer shall not, without Seller’s prior written consent, copy such information or disclose such information to a third party.
11. Cancellation. Buyer may cancel orders only upon reasonable advance written notice and upon payment to Seller of cancellation charges which include: (a) all costs and expenses incurred by Seller, and (b) a fixed sum of 10% of the total price of Products to compensate for disruption in scheduling, planned production and other indirect and administrative costs.
12. Export Control. Certain Products may be subject to export controls under the Laws of the US and other countries. Buyer must comply with all such Laws and not export, re-export or transfer, directly or indirectly, any such Product except in compliance with such Laws.
13. General Provisions. Unless otherwise agreed to in a writing signed by Seller and Buyer, this Agreement constitutes the entire agreement between the parties and supersedes all other communications between the parties relating to the subject matter of the Agreement. Seller’s quotations are offers that may only be accepted in full. No conditions, usage or trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, reject, or supplement the Agreement shall be binding unless made in writing and signed by both parties, expressly and specifically referencing the Agreement, and no modification or objection shall be caused by Seller's receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing different or additional terms to those set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver is expressed in a writing signed by both parties, specifically referencing the Agreement. Nothing in the Agreement confers upon any person other than Seller and Buyer any right or remedy under or by reason of this Agreement. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction.
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The Trade Agreements Act (“TAA”) enacted July 26, 1979, is intended to foster fair and open international trade.
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From January 1, 2020 to January 1, 2021, tvONE Inc. will make an $8 donation to Susan G Komen® for each Pathfinder unit sold.
Susan G. Komen®'s mission is to save lives by meeting the most critical needs in our communities and investing in breakthrough research to prevent and cure breast cancer. For more information, please contact Susan G. Komen® at 5005 LBJ Freeway, Suite 250, Dallas, Texas 75244 or visit www.komen.org.
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