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).
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 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.