1. GENERAL

All goods are supplied by us subject to these Conditions, which supersede any earlier sets of Conditions and which shall override any terms of conditions stipulated, incorporated or referred to by the Buyer whether in the order or in any negotiations.  The relaxation or waiver by us of any of these Conditions on any occasion shall act merely as a waiver on that occasion and shall not affect our right to enforce any of these Conditions on any subsequent occasion.  Any variation of these Conditions must be confirmed in writing by us and will not otherwise be valid.  Any description given by us of the goods other than the Agreed Specification is given by way of identification only and the use of such description shall not constitute a contract of sale by description.

2. PRICES

Quotations represent no obligation until we accept the Buyer’s order. Prices are quoted ex-works. Prices may be quoted in foreign currency, where this is the case and agreed exchange rate will be used, if the exchange rate differs by more than plus or minus 2% at the date of invoice then the resulting difference in price will be taken into account upon invoicing.  Packing, delivery and insurance are charged extra and prices do not include VAT.  No discounts shall apply unless previously agreed by us in writing.

3. PAYMENT

Payment is to be made 30 days from date of invoice under the terms of an irrevocable letter of credit to be provided by Royal Bank of Scotland plc  Without prejudice to our other rights, interest at 4% above Lloyds TSB Bank Plc base rate shall be payable on any payment which is overdue until actual payment.  Notwithstanding any statement to the contrary by the Buyer, we shall be entitled in our absolute discretion to appropriate any payment received by us from the Buyer to or towards any indebtedness of the Buyer with us, whether under this or under any other contract.

4. RE-SCHEDULING OF ORDERS

The order includes an indicative schedule of delivery dates.  Deliveries scheduled for the first three months following the acceptance of the Buyer’s order (the “Order Date”)may be re-scheduled only with our specific written agreement, and will require written notice of any required re-scheduling.  Any stockholding costs incurred as a result of any re-scheduling will be payable to us by the Buyer.

Goods scheduled for delivery more than three months after the Order Date may be called off at the absolute discretion of Buyer at any time between three months and twelve months after the Order Date. In any event the buyer agrees to take delivery of the full order quantity within 15 months of the order date.

5. CANCELLATION AND RETURNS

In the event of the cancellation of an order we reserve the right without prejudice to charge up to 100% for stock held by us pending shipment, up to 100% for items which we cannot cancel delivery from our supplier and up to 50% for the remaining balance. In particular, (but without limitation), in the event of cancellation by the Buyer of part only of an order, other than as a result of failure by us to meet an estimated time for delivery (defined as being 4 weeks later than estimated), we shall be entitled to recalculate the price for the non-cancelled part of the order as if it constituted the whole order, and to re-invoice the Buyer accordingly.

No returns will be permitted without our prior consent in writing and must be returned at the Buyer’s expense in original condition and the original packaging.  Only complete pack quantities will be accepted. If we agree to accept a return other than in the event of defective goods, the Buyer will be charged a handling charge of 20% of invoice value, plus VAT.

6. DELIVERY

Any time or date quoted by us for delivery is given and intended as an estimate only. Whilst every endeavour will be made to meet an estimated time for delivery, we shall not be liable to make good any damage or loss whether arising directly or indirectly out of delay in delivery other than a failure to complete the order within [twelve] months of the first date of the dispatch of goods. We reserve the right to deliver by instalments against any order.  Non-delivery must be reported in writing to us and to the carriers on the later of  10 days from the estimated date of delivery based on shipping method employed and the date of despatch or date of advice from the carrier that the shipment is lost or is otherwise not expected to arrive.

Where we tender delivery in accordance with the contract and the Buyer either refusing to accept delivery at that time or subsequently returns the goods without good cause he shall be deemed to be in breach of the contract and we shall be entitled to treat the order or any relevant part of it as cancelled by the Buyer (without prejudice to any other rights we may have).

When delivery is delayed for reasons attributable to the Buyer or his Agents, storage and other additional costs will be charged to the Buyer and the goods will be at the Buyer’s risk from the commencement of such delay.  We reserve the right to invoice the goods at the original delivery date. Buyers outside the UK are responsible at their own expense for obtaining any import licence required in the country for which the goods are destined.

7. TRANSIT

We will replace free of charge goods damaged or lost in transit provided the Buyer gives us written notification of such damage or loss within 10 days of receipt of goods by Buyer and time shall be of the essence.

8. INSPECTION

When the Buyer examines the goods before delivery is affected, he shall have no further right to inspect on arrival other than to notify us of any loss or damage in transit.  When the goods are delivered to the Buyer without any previous examination by him, he shall inspect them on receipt and within 14 days of such receipt of goods by Buyer shall give written notice to us of any matter or thing by reason of which he may allege that the goods are not in accordance with the contract or the Agreed Specification.  If the Buyer shall fail to give such notice the goods shall be deemed to be in all respects in accordance with the contract and the Buyer shall be bound to accept and pay for them accordingly.

9. OWNERSHIP

Until the Buyer makes payment in full for the goods, he shall at all times keep them in his possession and control and shall not remove them from the United Kingdom without our consent and will not sell or otherwise dispose of or deal with the goods.  Legal and equitable ownership of the goods remain with us, notwithstanding delivery thereof to the Buyer, until we have received in cash or cleared funds payment in full of the price of the goods and all other goods agreed to be sold by us to the Buyer for which payment is due.  Until such time the Buyer shall have possession of the goods as our Bailee we will permit the Buyer to sell the goods in the ordinary course of business (either separately or as part of constructed products), but in that event the proceeds of sale thereof will be held by the Buyer as our Trustee to the extent of the Buyer’s indebtedness to us.  Pending any such sale the Buyer will be obliged to keep the goods separate from his own goods until property therein passes to the Buyer.

10. PASSING OF RISK

Notwithstanding that ownership of the same may remain with us, as from the time of the delivery of the goods to the Buyer the risk of any loss or damage of the goods from whatever cause arising shall be borne by the Buyer.

11. MARKS AND NUMBERS

The Buyer shall not remove or otherwise interfere with the marks or numbers on any goods supplied by us.

12. DEFAULT

If the Buyer makes default in any payment on the due date (time being of the essence) or is otherwise in breach of any of these terms, or if (being an individual) he commits an act of bankruptcy or has a receiving order made against him or (being a company) enters into liquidation (whether compulsory or voluntary) or has a receiver or manager appointed to the whole or any part of its business or undertaking, or if distress or execution is levied or threatened upon any of the Buyer’s property, then in any such case (and without prejudice to any other rights we have):-

1. we shall be entitled to repossess any unused goods (uninstalled) and re-sell goods delivered to the Buyer and not paid for in full and for that purpose to enter upon the property in which they are situated.
2. we shall be entitled to suspend all further deliveries to the Buyers until the default is made good or to refuse to deliver any further goods to the Buyer and to re-sell any further goods ordered by the Buyer whether they are the balance of an order or the whole part of a further order.
3. the Buyer shall in any event be liable to make good to us our loss of profit on all such goods and all costs and expenses of repossession, storage, insurance and sale and to pay to us interest as provided above until actual payment.

13. WARRANTY 

All Ondamedia products are warranted for 24 months from date of shipment.

Coverage

Ondamedia quote reference shall be the Agreed Specification. Ondamedia warrants it’s products will conform to the Agreed Specification and will be free from defects in material and workmanship during the warranty period, Ondamedia will, at it’s sole option, repair or replace the product with a similar new or refurbished product or refund a pro-rata share as determined by the remainder of the warranty period of the then current MSRP of a similar product, if replacement or repair of the product is not commercially feasible. MSRP is defined as the most recent Product price as listed in the Ondamedia price list.

13. WARRANTY continued

Exclusions

The following conditions or circumstances are not covered under the terms of Ondamedia’s warranty.

• Any product on which the serial number has been defaced, modified or removed.
• Damage, deterioration or malfunction resulting from
• Accident, misuse, neglect, improper ventilation, fire, water, disaster, lightning, or other acts of nature, smoke exposure, unauthorised product modification (including use of an unauthorised mount), or failure to follow instructions supplied with the product.
• Repair or attempted repair by anyone not authorised by Ondamedia.
• Any damage of the product due to shipment.
• Removal or installation of the product.
• Causes external to the product, such as electric power fluctuations or failure.
• Use of supplies or parts not meeting Ondamedia’s specifications.
• Normal wear and tear.
• Customer caused defects, including but not limited to: cracked LCD, scratched LCD, blemished LCD (dark spot larger than 1.5mm), or scratched/defaced/altered plastics.
• Failure to follow maintenance procedures as outlined in the product user guide.
• Opening the product and/or tampering with internal circuitry.
• Products lost, stolen or discarded by customer.
• Any other cause, which does not relate to a product defect.
• Removal, installation and set-up service charges.

Limitation of Implied Warranties

There are no warranties, expressed or implied, which extend beyond the description contained herein including the implied warranty of merchantability and fitness for a particular purpose.

Exclusion of Damages

Ondamedia’s liability is limited to the cost of one of the following Ondamedia’s:

• Replacement with a similar new or refurbished product.
• Repair of the defective product; or
• Refund of a pro-rata share of the current MSRP as determined by the remainder of the warranty period if repair or replacement of the product is not commercially feasible. The chosen remedy will be in good faith and at the discretion of Ondamedia.

To the extent permitted by law Ondamedia shall not be liable for:

• Damage to other property caused by any defects in the product, damages based upon inconvenience, loss of use of the product, loss of time, loss of profits, loss of business opportunity, loss of goodwill, interference with business relationships, or other commercial loss, even if advised of their possibility of such damages.
• Any other damages, whether incidental, consequential or otherwise.
• Any claim against the customer by any other party.
• Any verbal warranty assurances made by a Ondamedia employee or a Ondamedia authorised reseller that conflicts or enhances the written warranty included herein.

14. USE OF GOODS

The Buyer acknowledges that he is exclusively responsible for detailing the specification for all goods ordered from us, for ascertaining the use to which they will be put, and for determining their ability to function for that purpose. Accordingly (and without limiting the generality of the previous condition) we have no liability arising out of any advice given by us to the Buyer relating to his requirements in respect of any goods other than any failure to perform in accordance with the Agreed Specification.

15. COMPUTER SOFTWARE

Where any goods supplied by us embody, include or contain computer program(s) and/or related documentation the copyright in which is owned by a third party, all rights and liabilities associated with the use and/or reproduction thereof will be subject to the terms applicable to the end user licence to the exclusion of all liabilities and obligations on our part.

16. INTELLECTUAL PROPERTY

The Buyer will indemnify us against all liabilities for infringement of third-party intellectual property rights arising from our compliance with the Buyer’s specific requirements regarding design or specification for the goods or arising from the use of the goods in combination with other products.

Except as aforesaid, we agree to defend any action or proceedings brought against the Buyer insofar as the same are based on a claim that any goods supplied hereunder infringe any United Kingdom intellectual property rights, provided we are notified immediately and in writing of such claim and are given all such authority, information and assistance as is necessary for proper defence of the same. Furthermore, we will indemnify the Buyer against all damages and costs awarded against the Buyer in respect of any such claim provided that the same does not arise solely by reason of the use of the goods in conjunction with other products or elements. In the event that the goods or the use thereof (subject as aforesaid) are held to constitute an infringement of any United Kingdom intellectual property rights and the use is thereby prevented, we will at our own expense and at our option either procure for the Buyer the right to continue using the goods, or replace the same with a non-infringing product, or modify the goods so that they become non-infringing, or retake possession of the goods and refund the purchase price thereof.  Subject to the foregoing, we shall be under no liability to the Buyer for any loss, damage or injury, whether direct or indirect, resulting from any intellectual property right infringements by the goods.

To ensure continuity of supply product design reference and manufacturing files for products the subject of the Agreed Specification will be placed in Escrow with Agile IP European Patent & Trade Mark Attorneys who will provide access to Buyer only if Ondamedia shall have a receiver or administrative receiver appointed over it or any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order, or if there is a petition appointing an examiner over it, or if the other party shall take or suffer any analogous or similar action under the laws of the country or countries in which it is incorporated or carries on business, or if the other party shall cease or threaten to cease to carry on business.

17. EXPORT CONTROL

We shall in no circumstances be liable for any damage, loss or claim occasioned by any act or omission on the part of the Buyer in contravention of any regulations issued by the United States Government concerning the export of goods, services or technology.  Any goods supplied by us whose export from the United Kingdom is restricted by any Government regulations shall not be exported by the Buyer without the prior approval of the relevant authorities concerned with the administration of such regulations.

18. TOOLS

Tools made or purchased by us for the manufacture of goods to be supplied under the contract and the copyright therein remain our property notwithstanding that the Buyer may have been charged a sum in respect of their cost.

To ensure continuity of supply product design reference and manufacturing files for such tools will be placed in Escrow with  Agile IP European Patent & Trade Mark Attorneys who will provide access to Buyer only if Ondamedia shall have a receiver or administrative receiver appointed over it or any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order, or if there is a petition appointing an examiner over it, or if the other party shall take or suffer any analogous or similar action under the laws of the country or countries in which it is incorporated or carries on business, or if the other party shall cease or threaten to cease to carry on business.

19. BUYERS ITEMS

Items supplied by the Buyer for the contract shall be of suitable quality and shall be provided free of charge in sufficient quantities and at the times required by us.  Any defect in items provided by the Buyer shall not entitle the Buyer to rescind the contract, reject the goods, make deductions from the contract price or claim damages in respect of such effect and the Buyer shall indemnify and keep us indemnified from and against all action, demands, claims, losses or costs arising from the supply of defective items by the Buyer.

20. LIEN

In the event of the Buyer’s insolvency we shall be entitled (in addition to any lien arising by law) to a general lien on all the Buyer’s goods in our possession (although the same or some of them have been paid for) for any money due either in respect of such goods or in respect of any general or particular balance or other money due from the Buyer to us, whether under the same or any other order.

21. FORCE MAJEURE

We shall be relieved of all liability for obligations incurred to the Buyer whenever and to the extent to which the fulfilment of such obligations is prevented, frustrated or impeded in consequence of any statute, rules, regulations, orders or requisitions issued by any government department, council or other duly constituted authority or by reason of any strikes, combination of workmen, lockouts, breakdown of plant, accident, civil commotion, war, force majeure or any other cause beyond our control.

22. VALIDITY

In the event that any of these conditions shall be held to be invalid, unlawful or unenforceable to any extent then such part of these conditions shall be severed from the remaining conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.

23. LAW

These conditions and the contract and all matters pertaining thereto shall be governed by English Law and the English courts shall have jurisdiction in relation thereto.

ENDS