VIDENDUM PRODUCTION SOLUTIONS DIVISION
TERMS AND CONDITIONS OF SALE
In these terms:
“Assistance” means any installation, support or other ancillary work or services which the Company has agreed to supply to you in connection with the Goods.
“Company” means and includes any one or more of the following companies that may sell Goods to You: Videndum Production Solutions, Inc., Videndum Production Solutions GmbH, Videndum Production Solutions Ltd, Camera Dynamics Sarl, Videndum Production Solutions Inc, Videndum Production Solutions KK, and Videndum Production Solutions Pte Ltd.
“Contract” means this agreement between you and the Company to supply the Goods subject to the terms and conditions set out in this agreement.
“Goods” means all products and equipment to be supplied under the Contract.
“Group Company” means any company which is a subsidiary of Videndum plc.
“You/Your” means you, the purchaser of the Goods under the Contract.
2. Basis of Supply
2.1 The Company shall supply and you shall purchase the Goods in accordance with an order which is accepted by the Company. By placing an order for the Goods you shall be deemed to have accepted these conditions to the exclusion of any other terms and conditions set out or referred to in any other document or other communication used by either party in concluding the Contract.
2.2 By placing your order you acknowledge that you place no reliance on any statement which has been made or may be made concerning the order other than one made by the Company in writing.
3. Price and Payment
3.1 All prices are stated exclusive of any VAT, delivery costs, and other taxes or duties which may apply.
3.2 Minimum Order Value is One Hundred Dollars ($100.00) unless otherwise agreed in writing.
3.3 Where payment has not been made at the point of order, payment is due 30 calendar days from the date of invoice. If payment is not made on the due date, the Company may in addition to all other remedies it has, suspend performance of the Contract and any other agreement with you and/or charge you interest (both before and after judgment) calculated at a daily rate equivalent to maximum legal interest rate applying from time to time.
Any quotation remains valid for a period of 30 calendar days only unless otherwise stated, and may be withdrawn at any time prior to the expiration of 30 calendar days.
The Company reserves the right to alter the specifications of the Goods, where necessary, to comply with regulations or legal requirements or where such alterations do not in the Company’s reasonable opinion materially affect your expressed requirements.
You are responsible for obtaining all consents, and for complying with all legal requirements necessary, to import into and operate goods within any country other than the United States of America.
7. Despatch and Delivery
7.1 The Company will use reasonable endeavours to deliver on the dates or to any programme of dates agreed, but delivery dates cannot be guaranteed and time of delivery is not of the essence of the Contract.
7.2 The Company will deliver by the method of its choice unless otherwise agreed to the address specified by you. You will be responsible for the costs of delivery.
7.3 Any failure by the Company to make any one delivery shall not entitle you to terminate the Contract as to any remaining deliveries.
8 Title and Risk
8.1 The risk in the Goods shall pass to you on despatch from the premises of the Company or, where the Goods are to be collected by you, on you collecting the Goods from the Company.
8.2 Title to the Goods shall not pass to you until the Company or Group Company (as the case may be) has received (in cash or cleared funds) payment in full of the sums due from you:
8.2.1 under the Contract; and
8.2.2 under any other contract the Company has with you; and
8.2.3 under any other contract you have with a Group Company.
8.3 Until title to the Goods has passed to you, you shall:
8.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
8.3.2 store the Goods separately from all other goods held by you so that they remain readily identifiable as the Company’s property;
8.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
8.3.5 notify the Company immediately if you become subject to any of the events listed in clause 13; and
8.3.6 give the Company such information relating to the Goods as the Company may require from time to time,
but you may resell or use the Goods in the ordinary course of business.
8.4 If before title to the Goods passes to you, you become subject to any of the events listed in clause 13, or the Company reasonably believes that any such event is about to happen and notifies you accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require you to deliver up the Goods and, if you fail to do so promptly, enter any premises of you or of any third party where the Goods are stored in order to recover them, and you hereby give the Company permission to detach them from any other item(s) they are attached to.
8.5 In cases where the Company is entitled under clause 8.4 to require you to deliver up the Goods, the Company may also at any time, acting as agent for a Group Company, require you to deliver up goods in respect of which title is held by that Group Company (“GC Goods”), and, if you fail to do so promptly, enter any premises of you or of any third party where the GC Goods are stored in order to recover them, and you hereby give the Company permission to detach them from any other item(s) they are attached to.
8.6 The Company may assign the benefit of clauses 8.4 and or 8.5 to any Group Company upon giving written notice to you.
You must carefully examine the Goods immediately upon receipt and notify the Company in writing of any defects within 7 calendar days of delivery, upon which the Company will advise you of what to do with the Goods.
9.2 If you do not notify the Company of any defects in accordance with clause 9.1 you will be deemed to have accepted the Goods. The Company will only accept returns of faulty Goods where the defect has been notified to the Company in accordance with clause 9.1.
9.3 The Company will only accept returns of non-faulty Goods if they are unopened in their original packaging. You must notify the Company within 7 calendar days of receipt of the Goods if you wish to return them, upon which the Company will notify you of what to do with the Goods. All returns of non-faulty Goods will incur an administration and handling charge of the greater of 25% of the price charged to you for the Goods. You will be responsible for the cost of delivering the Goods to the Company and remain responsible for their insurance until returned to the Company.
10.1 The Company may, at your request, provide Assistance to you in respect of the Contract. The cost of such Assistance shall be additional to the price due in respect of the Goods.
10.2 The Company may use persons other than its employees to provide the Assistance.
10.3 Where the Assistance involves the secondment of the Company’s designated personnel to you, they shall be subject to your direction, management, and control. You shall be responsible for all tasks performed by such personnel and the Company shall not be liable to you for any work which is performed negligently or otherwise unsatisfactorily by them. Nonetheless, if at any time during the Contract the performance or conduct of such personnel proves unsatisfactory, the Company shall take all reasonable steps to provide replacement personnel acceptable to you as soon as is reasonably practicable.
10.4 You shall ensure compliance with all applicable laws, regulations and regulatory requirements as regards business permits, licences or consents that may be required in relation to the Assistance. You shall provide such assistance as the Company considers reasonable in obtaining work visas and permits for the Company’s staff.
10.5 You shall take all precautions to safeguard the health and safety of the Company’s designated personnel whilst working at your premises, and shall ensure that all of your equipment shall at all times comply with all applicable laws, regulations, regulatory requirements and codes of practice.
10.6 Any equipment which belongs to you and which is used by the Company’s designated personnel, whether at your premises or elsewhere, shall remain at your risk and the Company shall not assume any responsibility or liability for the safety or security of such equipment.
11 Intellectual Property
11.1 All intellectual property rights associated with the Goods and in any illustrations, drawings and other documents supplied by the Company, remain vested in the Company.
11.2 All computer programs, software or firmware supplied by the Company are provided by means of a non-exclusive, revocable license to use on a specified machine, are to be kept confidential by you, and not to be further copied or divulged to any other party without the Company’s prior written consent.
11.3 You shall not remove, obliterate, delete from, add to, or otherwise alter trademarks and/or trade names affixed to the Goods and the Company asserts its full rights to control the use of its trade marks.
11.4 You shall not contact directly or indirectly any of the Company’s suppliers and/or manufacturers in order to seek a licence of any trade names or trademarks or patents if any, relating to Goods.
11.5 You will bring immediately to the Company’s notice any third party infringement of the Company’s intellectual property rights of which you become aware.
12 Limitation and Exclusion of Liability
12.1 The Company shall not be under any liability to you under the Contract or any collateral contract for any indirect loss and/or expenses, including loss of income, profits or contracts or for any incidental, indirect, special or consequential loss or damage of any kind whatsoever arising and whether caused by negligence, breach of contract or otherwise.
12.2 The Company’s maximum aggregate liability to you or any third party, in respect of any contract, whether arising under any indemnity, for any breach of its obligations under this Contract, negligence or otherwise, shall be limited to the price payable by you pursuant to such contract.
12.3 Nothing in this agreement or in any contract shall exclude or in any way limit either party’s liability for fraud or for death or personal injury caused by its negligence, or any other liability to the extent that such liability may not be excluded or limited as a matter of law.
If you (i) fail to make any payment when due under this Contract or any contract with a Group Company; or (ii) become insolvent, have a receiver, administrative receiver, administrator or manager appointed over all or any part of your assets or business, make any composition or arrangement with your creditors, take or suffer any similar action in consequence of debt or an order for resolution is made for your dissolution or liquidation (other than for the purposes of solvent amalgamation or reconstruction); (iii) exceed the credit limit, if any, specified by the Company from time to time; the Company shall have the following rights at its option without incurring any liability, which rights shall be cumulative and shall not prevent the Company from also claiming damages and pursuing any other rights and remedies available to it:
13.1 to terminate this Contract;
13.2 to cancel any undelivered or uncompleted portion of the contract and stop any Goods in transit;
13.3 to cancel any other contract with you; and
13.4 to demand immediate payment of any outstanding amounts which shall thereupon become due and payable.
14 Limited Warranty
14.1 In some instances the Company provides a limited warranty in respect to the Goods. In such a case the Company warrants, to the original purchaser only, that the Goods will be free from defects in materials and workmanship under normal and proper usage for a period of one (1) year from the date of purchase. The warranty period may be longer as required by law in certain jurisdictions. The Company makes no other express or implied warranty whatsoever unless specifically agreed in writing. Any warranty will be subject to the terms and conditions in this clause 14.
14.2 Company’s obligations under this warranty and the sole remedy for its breach are limited to repair, at its manufacturing facility, of any part or parts of its products which prove to be defective; or, in its sole discretion, replacement of such products. All returns of defective parts or products must include the product model number and serial number, and must be made through an authorized Customer Service Center. Authorized returns must be shipped prepaid. The warranty provided herein does not cover charges for labor or other costs incurred in the troubleshooting, repair, removal, installation, service or handling of parts or complete products. All claims under the warranty provided herein must be made within thirty (30) days from the date of discovery of the defect, and is further subject to the terms and conditions set forth below. Failure to notify Company of a warranted defect within thirty (30) days of its discovery voids Company’s obligations hereunder.
14.3 The warranty cannot be assigned, except with the prior written agreement of the Company.
14.4 Goods claimed defective must be returned to the Company or its authorized agent, freight pre-paid.
14.5 If any defective Goods (or part) has been superseded and cannot be repaired, replacement will be made with a current model of the same quality and equivalent function.
14.6 This warranty does not cover any damage, defects or costs caused by: (1) modification, alteration, repair or service of the Goods by anyone other than the Company or its authorized representative; (2) physical abuse to, overload of, or misuse of, the Goods, or operation of the Goods in a manner contrary to the instructions accompanying the Goods; (3) any use of the Goods other than that for which it was intended, misuse, neglect, accident, improper or inadequate maintenance, corrosive environments, environments containing airborne contaminants (silicone, aluminum oxide, etc.), or excessive thermal shock; (4) shipment of the Goods to the Company for service; any installation or operation of the Goods other than in compliance with applicable building, mechanical, plumbing and electrical codes. This warranty is voided if the serial number of the product has been altered, defaced or removed.
14.7 THE COMPANY IS NOT LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PROPERTY DAMAGE, DAMAGE TO OR LOSS OF EQUIPMENT, LOST PROFITS OR REVENUE, COSTS OF RENTING REPLACEMENTS AND OTHER ADDITIONAL EXPENSES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY EXPRESS WARRANTY NOT PROVIDED HEREIN, AND ANY REMEDY WHICH, BUT FOR THE WARRANTY CONTAINED HEREIN, THAT MIGHT ARISE BY IMPLICATION OR OPERATION OF LAW IS HEREBY EXCLUDED AND DISCLAIMED INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH MAY VARY FROM JURISDICTION TO JURISDICTION.
14.8 The warranty period will commence on the date of delivery to you.
14.9 The Company guarantees any repairs undertaken by the Company for a period of three (3) months from the date you are notified that the repair has been completed. This guarantee covers only the specific repairs carried out by the Company and does not extend the warranty period as to the Goods otherwise.
14.10 If you are a consumer you have certain legal rights in relation to the Goods, and those rights are not affected by this Warranty.
14.11 High Risk Activities.
You acknowledge that the Goods are not fault tolerant and is not designed, manufactured, or intended for use or resale as control equipment in hazardous or high risk environments and activities requiring fail-safe performance (such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems) in which the failure of the Goods could lead directly to death, personal injury, or severe physical or environmental damage. You agree not to use or allow the use of the Goods or any portion thereof for, or in connection with, any such environment or activity.
Purchaser hereby indemnifies and agrees to hold harmless Company and its respective members, directors, officers, agents, employees, representatives, successors and assigns, and any Group Company from and against any and all losses, claims, damages, expenses or liabilities of whatever form or nature (including reasonable attorneys’ fees and other costs and expenses incurred in connection therewith) which they, or any of them, may sustain or incur in (including in settlement) any action, claim, suit, proceeding or settlement by any person, organization or governmental entity or agency, or otherwise resulting, in whole or in part, from: (i) Any claim of a third party that the indemnifying Party misrepresented its authority or made any contractual commitment not expressly authorized under this Contract; (ii) The handling, storage, sale or distribution by the indemnifying Party of the Goods or information relating thereto; (iii) The failure by the indemnifying Party to perform or comply with its obligations under this Contract; and (iv) The conduct of the operations of the indemnifying Party.
15 Force Majeure
The Company shall not be responsible or liable for its failure to perform its obligations, if such failure is beyond the control of the Company, or beyond the control of the suppliers of the Company, whether caused by acts of God, unavailability or shortages of materials or energy necessary to produce and/or deliver the Goods by usual modes of transportation, fire, flood, wars, embargo, strikes, labour disputes, explosions, riots, of laws, rules, regulations, restrictions or orders of any governmental authority, or any other cause, other than financial, beyond the control of the Company or its suppliers.
16 Governing Law
These Terms and Conditions shall be governed by the laws of the State of New York applicable to contracts made and to be performed in that state. Any controversy or claims arising out of or relating to any sale hereunder shall be determined and settled by arbitration in New York City, in accordance with the Commercial Rules of the American Arbitration Association by a panel of three (3) arbitrators. The parties agree that the arbitrators shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to any party in such arbitration. The arbitration award will be final as between the parties and judgment thereon may be entered in any court of competent jurisdiction. Any party hereto may make an application for the issuance of a temporary restraining order and/or preliminary injunction from any court of competent jurisdiction pending the determination of any controversy pursuant to the arbitration provisions set forth in this Article. The parties hereby consent and submit to the personal jurisdiction of the United States District Court for the Southern District of New York and any New York State court of competent jurisdiction located in New York County, New York in any suit, action or proceeding brought in connection with arbitration hereunder.
The interpretation placed by Incoterms 2010 on terms of trading obtained in any order resulting from any quotation shall apply.
The failure of either party to enforce any term of or right arising pursuant to this agreement does not constitute a waiver of such term or right and shall in no way affect that party’s right later to enforce or exercise the term or right.
19.1 If any court or competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.
19.2 If any invalid, unenforceable or illegal provision of this Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
20 Statute of limitations
Any action for breach of contract hereunder, except for actions by the Company to collect sums due for Goods sold and delivered, must be commenced within one (1) year of accrual.