Conditions of Sale
These are the terms and conditions ("Conditions") under which Mediaware supplies Products to any person, firm or company ("Customer") placing Purchase Orders or Statements of Work with them. All PO's and SOW's are entered into on the basis of (i) these Conditions, and (ii) any special conditions agreed in writing and signed by the parties ("Special Conditions"). Any other terms and conditions set out or referred to in any document or other communication used by Customer in concluding a PO or SOW are hereby excluded. Any variation to the scope or terms of the PO or SOW including without limitation changes to delivery dates or Products shall only take effect if agreed in writing by both parties.
2. DEFINITIONS
2.1 In these Conditions the following terms shall have the following meanings:
"Acceptance Tests" means the test procedures designed to verify substantial conformity of the Products with the Specifications, agreed between the parties in writing prior to Delivery, or (failing such agreement) Supplier's standard test procedures;
"Affiliate" means a company (i) controlling; (ii) controlled by; or (iii) under common control with Supplier or Customer as appropriate;
"Defect(s)" means material defects caused by defective material, workmanship or design which result in a failure of the Products to substantially conform to the Specifications;
"Delivery" means delivery as set forth in Section 3.1;
"Equipment" means the hardware, documentation and other tangible deliverables agreed to be supplied under a PO or SOW;
"Intellectual Property Rights" means patents, trademarks, service marks or business names, registered designs, copyrights, design rights, utility models, topography rights, applications to register any of the aforementioned rights, trade secrets, know how and rights of confidence and any other intellectual or industrial property rights of any nature whatsoever in any part of the world;
"Permitted Purpose," means the installation, configuration and use, for normal business purposes, of the Software in connection with the Equipment to which it relates or for the purpose identified in, and subject to any restrictions contained in, the PO or SOW or user documentation (including without limitation restrictions on the numbers of users, channels or copies);
"Products" means Equipment, Software, and/or Services;
"Purchase Order" or "PO" means any document for the purchase of Products and/or Services placed by
Customer and accepted in writing by Supplier;
"Services" means such services as Supplier agrees to provide under a PO or SOW including without
limitation, systems integration, installation, commissioning, end-to-end integration and training
(but excluding support and maintenance services);
"Site Acceptance" means the achievement of a pass or conditional pass of the Acceptance Tests relating to site acceptance in accordance with Clause 3 or the putting into operation of the Products, whichever is earlier;
"Software" means any computer program, firmware or other software that Supplier has agreed to supply to Customer under a PO or SOW;
"Specifications" means the specifications agreed in writing by the parties as being applicable to a PO or SOW or failing such agreement Supplier's standard data sheets;
"Statement of Work" or "SOW" means any document for the purchase of Products and/or Services agreed in writing by Customer and Supplier;
"Supplier" means Mediaware or such other company in respect of which Mediaware is the ultimate holding company as enters into the PO or SOW;
"Third Party Products" means Products, including Software, not manufactured or produced by Supplier and separately branded;
"User" means any person installing or configuring the Products, or using the Products for internal purposes and only for the Permitted Purpose.
2.2 In the case of conflict or ambiguity between any provisions contained in any document forming part of the PO or SOW, the order of precedence shall be, in descending order: the PO or SOW, any Special Conditions, these Conditions, and any other document.
3. DELIVERY, INSTALLATION AND ACCEPTANCE
3.1 The Delivery term shall be Ex Works, place of manufacture unless otherwise agreed in writing in the PO or SOW. Any agreed trade term shall be construed in accordance with the Incoterms in force at the formation of the PO or SOW.
3.2 Where the PO or SOW is for delivery only, or where there are no specific Acceptance Tests set forth in a PO or SOW (in which case the provisions of Clause 3.4 to 3.9 shall apply), unless the Product is rejected by Customer for a material Defect within 10 working days of delivery, then Site Acceptance of such Products shall be deemed to have occurred upon Delivery.
3.3 Where specific Acceptance Tests are agreed in respect of a PO or SOW then the acceptance testing process set out in Clauses 3.4 to 3.9 shall apply.
3.4 Acceptance Tests shall be carried out by Supplier, which unless agreed otherwise in writing shall comprise (i) a Factory Acceptance Test; and (ii) a Site Acceptance Test.
3.5 The Factory Acceptance Test is intended to be an internal Supplier test and carried out for Supplier's benefit prior to Delivery. Notwithstanding this, Customer shall be notified of the dates on which the Factory Acceptance Test is to be a carried out and shall be invited to attend and to receive details of the test results.
3.6 Site Acceptance Tests shall be conducted at the agreed test site(s) by Supplier on the dates specified in the agreed project plan for the relevant PO or SOW and shall be attended by representatives of Customer.
3.7 If the Products pass the Site Acceptance Test Supplier shall prepare and Customer shall promptly sign a Site Acceptance Certificate classified as a "Pass" and Supplier shall be entitled to invoice Customer for any payment corresponding to Site Acceptance referred to in these Conditions or the relevant PO or SOW.
3.8 If the Products fail the Site Acceptance Test but such failure would not prevent the Products being put into operation (such failures being "Minor Defects") Supplier shall prepare and Customer shall promptly sign a Site Acceptance Certificate classified as "Conditional Pass" with a list of identified Minor Defects and Supplier shall be entitled to invoice Customer for any payment corresponding to Site Acceptance referred to in these Conditions or the relevant PO or SOW and Supplier shall use commercially reasonable efforts to remedy such identified Minor Defects within 30 business days of the issue of the Conditional Pass Site Acceptance Certificate.
3.9 If the Products fail the Site Acceptance Test and such failure is not for Minor Defects Supplier shall endeavor to remedy the substantial non-conformities and will notify Customer when the remedy for the identified substantial non-conformities is ready for testing, whereupon the Site Acceptance Test shall be repeated with particular attention to the previously identified substantial non-conformities and the provisions of Clauses 3.7 and 3.8 shall apply to the repeated Site Acceptance Test.
4. VARIATIONS
4.1 At any time prior to Site Acceptance, Customer may request changes to the Specifications or timescales under a PO or SOW (a "Change Request") in accordance with the procedure in this Clause 4.
4.2 Upon receipt of a Change Request, Supplier shall allocate a reference number to the Change Request and shall undertake an impact assessment as to whether the requested changes are feasible and achievable and, if so, shall provide to Customer a quotation (a "Change Request Quotation") setting out the impact (if any) of such changes on the project plan, the price, the payment terms and any other terms of the relevant PO or SOW. Supplier shall use commercially reasonable efforts to provide such Change Request Quotation within 10 business days of a Change Request save in the case of major Change Requests requiring a significant amount of additional work (including without limitation an investigation of the technical feasibility of such a Change Request), in which case Supplier shall promptly notify Customer of the expected time for delivery of a Change Request Quotation.
4.3 Should Customer wish to proceed with the Change Request, it will instruct Supplier in writing accordingly as soon as reasonably practicable but in any event not later than 15 Business Days after receipt of the Change Request Quotation. Those parts of the PO or SOW affected by the Change Request will then be deemed to be modified accordingly (a "Variation").
4.4 Until Customer formally accepts a Change Request Quotation in accordance with Clause 4.3, Supplier shall continue to perform and be paid for the PO or SOW as if the Change Request had not been made.
4.5 Save as provided above, no amendment, variation or modification shall be made to a PO or SOW unless agreed in writing by a duly authorized representative of each party.
5. PRICE AND PAYMENTS
5.1 All Supplier proposals and quotations remain valid for 30 days after issue. Customer shall pay the prices and fees set out in the PO and/or SOW. Prices do not include sales, use, value added or goods and services taxes. Where appropriate such taxes will be added to the invoice and paid by Customer unless Customer provides Supplier with evidence of payment or certificate of exemption.
5.2 Payment terms under all PO's and SOW's shall be 100% invoiced on order and payable forthwith following receipt of invoice, unless Supplier have agreed to grant credit in which case the price for Products supplied and any other charges shall be paid in full by Customer in 30 days.
5.3 Where any milestone defined in a Purchase Order and/or Statement of Work ("Milestone") is delayed or prevented for a period exceeding 30 days beyond the anticipated date for achieving such Milestone due to reasons not attributable to Supplier, then any payment linked to such Milestone shall become due and payable on the expiry of such 30 day period subject to Supplier giving Customer notice of such delay.
5.4 If Customer is overdue with any payment then, without prejudice to any other right or remedy available to Supplier and subject in any event to 14 days written notification by Supplier to Customer of its intention to exercise the rights set out in this clause : (i) Customer shall be liable to pay interest on the overdue amount at the rate of one per cent per complete month until Supplier has received payment of the overdue amount together with interest that has accrued; and (ii) Supplier reserves the right to suspend contractual performance and/or exercise a lien over un-shipped goods until Customer has made such overdue payment in full and the exercise of any such suspension or lien shall not affect Customer's obligation to pay any amounts due in respect of Delivery or any other Milestone achieved prior to suspension.
5.5 Where Customer has been advised of a requirement for the same in advance of acceptance of Customer's order Supplier reserves the right to withhold or refuse contractual performance until Customer has supplied a satisfactory credit reference or bank guarantee or has agreed payment in the form of an irrevocable letter of credit drawn on a bank reasonably acceptable to Supplier.
5.6 Where Supplier carries out on the instruction of Customer any services which are not Services included in the Specifications ("Additional Services"), including without limitation integration to or any issues relating to integration with any third party product which arise out of the Acceptance Tests, Supplier shall be entitled to charge for Additional Services in accordance with its standard charging rates on a time and materials basis (or such other basis as is agreed in writing by the parties). Wherever reasonably practical the value or likely value of charges for Additional Services shall be notified to Customer in advance of the provision of the Additional Services. Acceptance of the Products shall not be delayed pending completion of such additional services.
6. CUSTOMER'S RESPONSIBILITIES
6.1 Customer shall promptly undertake and complete all actions identified as Customer's responsibilities in the PO or SOW, or in any project plan or specification, and shall (i) prepare the installation site; (ii) provide Supplier with all information, document approvals, assistance, access and facilities and (iii) provide a safe working environment, in each case as reasonably required from time to time to facilitate the proper and timely performance of the PO or SOW.
6.2 Customer warrants and undertakes that all information provided by it to Supplier will be accurate and adequate in all material respects and that Customer is entitled to provide the information to Supplier for its use without recourse to any third party.
6.3 Where the performance by Supplier of its obligations under a PO or SOW is conditional upon obtaining licenses, permits or other consents and the obtaining of the same is dependent on the provision by Customer of information or undertakings, Customer shall provide such information or undertakings promptly upon request. Supplier will use commercially reasonable efforts to notify Customer of any such requirements as soon as reasonably practicable.
6.4 Customer shall satisfy itself that the importation, possession and use of Products in the country of destination is lawful in that country and save as set out in Clause 13 Supplier shall not assume, and hereby disclaims, any obligation or liability in these regards. Customer shall dispose of any Equipment no longer needed in a responsible manner and may return the Equipment (at Customer's cost) to Supplier for recycling/disposal.
7. FORCE MAJEURE
Neither party shall be liable for any loss or damage suffered or incurred by the other arising from the first party's delay or failure to fulfill or otherwise discharge any of its obligations under the PO or SOW to the extent that such delay or failure is caused by any cause or circumstance beyond its reasonable control including but not limited to act of God, governmental act, withholding, delay or revocation of export or import control approval or other license, war, terrorist activity, fire, flood, explosion, civil commotion or industrial dispute (other than industrial disputes related solely to the employees of the party claiming Force Majeure). Subject to the party so delaying promptly notifying the other party in writing of the reason for the delay and the likely duration of the delay, the performance of the delaying party's obligations, to the extent affected by the delay, shall be suspended during the period that the cause persists and any Milestone shall be deferred accordingly provided that each party shall use commercially reasonable efforts to avoid the effect of that cause provided that if performance is not resumed within 60 days of that notice the non delaying party may at any time thereafter but in any event prior to resumption of obligations by the delaying party by notice in writing terminate the affected portion of the PO or SOW.
8. HEALTH AND SAFETY
Each party shall comply with all relevant Health and Safety laws and regulations in all respects in relation to its obligations under the PO or SOW (including without limitation a safe working environment and methods of working) and shall indemnify the other party in respect of all costs, liabilities, damages or expenses incurred as a result of any failure to do so.
9. TITLE
Products (other than Software and the Intellectual Property Rights in Software) shall become Customer's property when all sums owed by Customer to Supplier under the PO or SOW have been paid in full. Until then, Supplier shall retain legal and beneficial ownership of the Products.
10. SOFTWARE AND INTELLECTUAL PROPERTY RIGHTS
10.1 Software and the Intellectual Property Rights in Software and the Products shall at all times remain the exclusive property of Supplier or its suppliers. All Intellectual Property Rights arising under the PO or SOW including without limitation those arising from the supply of Products, save to the extent that they comprise of or incorporate Intellectual Property Rights supplied by Customer, shall vest in and be owned by Supplier or its suppliers absolutely and Customer shall acquire no right, title or interest therein save as specified in writing in the PO or SOW.
10.2 Software in Third Party Products may be subject to separate terms and restrictions and if so these shall be notified to Customer or contained in any "box" or "on-screen" license supplied with such Third Party Products (copies available on request), and Customer shall be obliged to comply with the same.
10.3 Supplier shall grant to, or procure the grant to, Customer of a worldwide, non-exclusive, non- assignable, non-transferable license to use the Software (in executable form only) and the Products only for the Permitted Purpose and in accordance with the provisions of this Clause 10.
10.4 Software is not specifically designed, tested, manufactured or intended for operation or use in any inherently dangerous, life-endangering or life-support applications, including but not limited to nuclear facilities or the flight, navigation or communication of air or space craft or life systems monitoring. If Customer uses Software for these applications Customer agrees that neither Supplier nor its third party licensors are liable in whole or in part for any claims or damages arising from such use and that Customer shall indemnify and hold Supplier and its third party licensors harmless from any claims for loss, cost, damage, expense or liability arising out of or in connection with any such use and performance.
10.5 Customer shall be entitled to grant a sub-license to any User of the Products in the terms and subject to the conditions of the license granted to Customer under this Clause 10.
10.6 Customer may make one copy of any Software for reasonable back-up and disaster recovery purposes and, upon request, shall advise Supplier of the location of any Software and its back-up copies.
10.7 Subject to Clause 10.6 Customer shall have no right to copy, adapt, reverse engineer, decompile, disassemble, modify or create derivative works of any Software in whole or in part except: (i) as permitted by law; or (ii) with Supplier's prior written consent. The restrictions in these license conditions are made for the benefit of Supplier and its suppliers and may be enforced by such suppliers to the extent that they relate to any Software and Intellectual Property Rights supplied by such suppliers.
10.8 The license granted under Clause 10.3 (and any sub-license granted under Clause 10.5) shall be without limit of period but Supplier may immediately terminate such license (and the right to continue any sub- licenses) to use the relevant Software and/or Products by notice in writing to Customer if Customer or any sub-licensee breaches any term of the license or sub- license (and such breach is incapable of remedy or is not remedied within a ten calendar days of a request to do so), whereupon Customer shall, at Supplier's direction, immediately return to Supplier or destroy the Software and any back-up copy (and procure that sub-licensees do the same) and certify in writing to Supplier that this has been done.
11. WARRANTY
11.1 Subject to the provisions of this Clause 11 and Clause 12, Supplier warrants for a period of 12 months from (a) Delivery for delivery only PO's and SOW's; or (b) Site Acceptance, where agreed, for other PO's and SOW's (the "Warranty Period") that it will, at Suppliers discretion, either (i) repair, replace, or provide reasonable substitutes for Equipment and Software (or the defective part thereof) having Defects, subject to the request for the same being logged with the Supplier's Customer Support Helpdesk (the "Helpdesk") promptly and during the Warranty period; or (ii) refund to Customer the price paid by Customer for the defective Equipment or Software (or the defective part thereof), Supplier may choose to refund such price paid even if it has already begun to repair or replace the applicable Equipment or Software. This Article 11.1 sets forth Supplier's sole and exclusive remedy for the failure of Equipment to meet the requirements of these terms and conditions, the PO or SOW, any applicable specifications, or any other contract document or terms governing the sale contemplated hereunder (or any breach by Supplier of Article 11.1), and Customer hereby waives all other remedies. In no event shall this Article 11.1 be deemed to have failed of its essential purpose, and Customer shall not allege or claim the foregoing.
11.2 Repairs and replacements shall be carried out in accordance with the reasonable procedures advised to Customer by Mediaware Support. Customer shall return the defective Product or part thereof (where asked to do so by Supplier) to Supplier or as Supplier otherwise directs in the original or appropriate alternative packaging accompanied with the appropriate return authorization form and at Customer's cost to enable Supplier to make full examination of the alleged defective material, workmanship or design. Shipping charges for return to Customer shall be borne by Supplier. Any Equipment and Software replaced shall become the property of Supplier. In the event that it is not commercially feasible to dispatch repaired or replacement or substitute Equipment and Software within a reasonable time (being not less than 30 working days from the defect being logged with Mediaware Support and if applicable, receipt by Supplier of the relevant Equipment and Software), and Supplier is unable to provide Customer with an alternative reasonably acceptable solution, Supplier shall at Customer's request accept the return of the Equipment and Software not useable in consequence of the warranted defect and refund to Customer that part of the price attributable to the same.
11.3. The warranties given in this Clause 11 are unique to Customer and may not be assigned or transferred in whole or in part by Customer and a sub-license under Clause 10.5 shall not operate as an assignment or transfer of any such warranties.
11.4 Supplier shall not be liable for a breach of the warranty (i) to the extent the defect arises and/or is exacerbated as a result of misuse, neglect (including without limitation failure to notify Supplier of failure within a reasonable time), alteration, mishandling, attempted repair, maintenance or unauthorized manipulation by any person other than Supplier authorized personnel; or (ii) the defect arises because Customer failed to follow Supplier's oral or written instructions as to the storage, installation, use or maintenance of the Products or (if there are none) good trade practice; or (iii) Customer alters or repairs such Products without the written consent of Supplier; or (iv) the extent the defect arises and/or is exacerbated as a result of Customer's use of the Products in combination with other equipment or software not supplied by Supplier.
11.5 Repaired and replacement Products provided pursuant to the provisions of this Clause 11 shall have the benefit of a warranty in the terms of this Clause 11 for the remainder of the Warranty Period for the original Product or 3 months from provision of the repair or replacement, whichever is longer.
11.6 For Third Party Products Customer shall only be entitled to such warranty or other benefit as Supplier has received from the manufacturer or licensor and is able to pass on. Save as provided in this Clause 11.6, no warranty (whether express, statutory or implied) is given to Customer by any supplier or licensor of Supplier in respect of the whole or any part of a Product, and such suppliers and licensors disclaim all such warranties including without limitation any warranties of merchantability, non-infringement or fitness for a particular purpose.
11.7 Any work carried out by Supplier at Customer's request which is otherwise than as required in satisfaction of Supplier's warranty obligations under this Clause 11 shall be treated as Additional Services pursuant to Clause 5.10. Supplier shall be entitled to dispose of any Products that have been sent to Supplier for repairs or upgrades which remain uncollected and in respect of which Customer has incurred charges that remain overdue for more than 60 days.
11.8 THE WARRANTIES CONTAINED IN THIS CLAUSE 11 ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT OF THIRD PARTY RIGHTS AND WHICH ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THE PO AND/OR SOW. THE SOLE REMEDIES OF CUSTOMER FOR ANY BREACH OF WARRANTY ARE SET OUT IN THIS CLAUSE 11. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, SUPPLIER PROVIDES THE SOFTWARE "AS IS" AND DOES NOT GUARANTEE OR WARRANT THE CORRECTNESS, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE SOFTWARE OR OF THE MEDIA ON WHICH THE SOFTQARE IS PROVIDED, AND SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED, IN WHOLE OR PART, BY OUR ACTS OR OMISSIONS IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING, OR DELIVERING INFORMATION OR IN OTHERWISE PERFORMING OUR OBLIGATIONS UNDER THE SALE CONTEMPLATED HEREUNDER. SUPPLIER HEREBY DISCLAIMS AND NEGATES ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTY REGARDING RESULTS CUSTOMER MAY OBTAIN FROM USING THE SOFTWARE, WARRANTIES THAT THE SOFTWARE WILL BE FREE OF INFECTION BY VIRUSES, WORMS, OR OTHER CONTAMINATING OR DESTRUCTIVE PROPERTIES, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THE SOFTWARE WILL BE ERROR-FREE, OR THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED, AS WELL AS THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT NOTHING HAS BEEN STATED OR OTHERWISE INDICATED TO IT CONTRARY TO THIS SECTION 11.8. CUSTOMER ASSUMES ALL RISK OF DAMAGE OR LOSS RESULTING FROM THE USE OF THE SOFTWARE OR ANY PORTION THEREOF.
12. LIABILITY
12.1 Neither Supplier's nor Customer's liability for any of the following is excluded or limited by these Conditions or any other provision of the PO and/or SOW (even if any other term of the PO or SOW would suggest otherwise):- (i) death or personal injury caused by that party's negligence or the negligence of its employees agents or sub-contractors; (ii) fraud or other criminal act; (iii) fraudulent misrepresentation; (iv) for anything else in relation to which, under the law governing the PO or SOW, liability cannot be excluded or limited.
12.2 Subject to Clause 12.1, neither Supplier, nor any supplier or licensor of Supplier, nor Customer shall be liable under or in relation to the PO or SOW (whether the liability arises for breach of contract, negligence, under an indemnity, obligation to refund, under any other theory of law or for any other reason) for any:- (i) loss of profits; (ii) loss of turnover; (iii) loss of or damage to goodwill or reputation; (iv) loss of, or loss of the use of any software or data; (v) losses or liabilities in relation to any other contract; (vi) costs associated with non utilization of a transmission network or (vii) indirect, special, punitive, or consequential loss or damage; and for the purposes of this Clause the term "loss" includes a partial loss or reduction in value as well as a complete or total loss.
12.3 Subject to Clauses 12.1 and 12.2, Supplier's total, cumulative liability (whether the liability arises for breach of contract, negligence, under an indemnity, obligation to refund, under any other theory of law or for any other reason) shall be limited to an amount equal to the total amount paid or payable by Customer under the PO or SOW under which the liability arises.
12.4 Customer agrees that it will take reasonable precautions (relative to the importance to Customer of the Products concerned), including without limitation backing up software and data at reasonable intervals, implementing back-up systems or redundancy and maintaining suitable numbers of spare units at suitable locations (at a minimum to the Supplier's recommended spares levels). Subject to Clause 12.1, Supplier shall have no liability for any losses suffered by Customer to the extent that the loss concerned would have been prevented by the taking of such reasonable precautions.
13. THIRD PARTY RIGHTS
13.1 Subject to the provisions of Clause 12 and this Clause 13, Supplier will indemnify Customer against any damages or costs that Customer is (i) finally ordered to pay by a court of competent jurisdiction; or (ii) required to pay under the terms of an agreed settlement; in either case as a direct result of any claim against Customer that the possession or use by Customer of any Product(s) in accordance with the PO or SOW and these Conditions infringes the Intellectual Property Rights of a third party (an "Infringement Claim"). The above indemnity shall not apply to any Infringement Claim or any loss or damage resulting from it to the extent that the Infringement Claim arises from: (i) the possession or use of the Product(s) (or any part of them) by anyone other than Customer; (ii) the possession or use of the Product(s) (or any part of them other than in accordance with the terms of the PO or SOW and these Conditions; (iii) failure by Customer to implement changes, replacements or new releases recommended by Supplier where the infringement would have been avoided by such changes replacements or new releases; (iv) the combination of the Product(s) with any other products or items not supplied by Supplier; (v) the use of the Product(s) in combination with any other products or items not supplied by Supplier; (vi) the modification of the Product(s) by anyone other than Supplier; (vii) a requirement under the licensing regime for MPEG2, MPEG 4 Pt 10, Windows Media 9 advanced encoding standards for an integrator or end user service provider to take a direct license and/or pay a royalty or participation fee.
13.2 The indemnity in clause 13.1 will only apply to any given Infringement Claim provided that: (i) Customer as soon as reasonably possible notifies Supplier in writing of the Infringement Claim once it has become aware of it (whether by formal notice or otherwise); (ii) Customer does not make any admission as to liability in relation to, or compromise or agree to any settlement of, the Infringement Claim without the prior written consent of Supplier; (iii) if Supplier so requests, Customer allows Supplier at its own expense to have the conduct of or settle all negotiations and litigation arising from the Infringement Claim; (iv) Customer acts in relation to the Infringement Claim in accordance with the reasonable instructions of Supplier and, at Supplier's request and expense, gives Supplier all reasonable assistance in connection with those negotiations and such litigation; and (v) subject to the other provisions of this clause 13.2, Customer takes all reasonable steps to minimize any loss or damage suffered by it that would otherwise have been covered by the indemnity.
13.3 If any Infringement Claim is made, or in Supplier's reasonable opinion is likely to be made, against Customer, Supplier may at its sole option and expense, and Customer shall permit Supplier to (i) procure for Customer the right to continue using the Product(s) (or any part thereof) in accordance with the terms of the PO or SOW and these Conditions; or (ii) modify the Product(s) so that it ceases to be infringing; or (iii) replace the Product(s) with non-infringing products/software; or (iv) if none of the foregoing are commercially feasible, repay to Customer the purchase price which Customer has paid to Supplier in respect of the infringing Product by way of full and final settlement of the liabilities of Supplier in relation to such Infringement Claim under: (i) the indemnity in this clause 13; and (ii) any other term of these Conditions, the PO or SOW.
13.4 The purchase price of the Products excludes any participation fees or usage/revenue based royalties that may now or in the future be payable by the owner/operator of the Products. Any such royalty or participation fee shall be for the account of Customer and shall not be recoverable from Supplier.
14. CANCELLATION TERMINATION AND SUSPENSION
14.1 Customer may not cancel the whole or any part of any PO or SOW without the prior written consent of Supplier.
14.2 Supplier or Customer may terminate the PO or SOW immediately at any time by written notice to the other if: (i) the other commits a material breach of the PO or SOW which it fails to remedy within 30 days of receiving written notice requiring it to do so; or (ii) the other becomes insolvent, has an administrator, receiver or manager appointed of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its winding-up dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or any event occurs in a foreign jurisdiction analogous to, or comparable with any of the above.
14.3 Save as expressly stated elsewhere in the PO or SOW, any termination of a PO or SOW (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into force or continue in force on or after that termination. Notwithstanding the foregoing, the parties agree that the equitable remedy of specific performance of either party is hereby expressly excluded.
14.4 If any appropriate instructions, information, technical documents, design approval, letters of undertaking, licenses or authorizations required to be provided by Customer have not been provided, or the conditions of payment are not strictly adhered to by Customer, or Customer is otherwise in breach of any of its obligations under the PO or SOW and Supplier has provided Customer of at least 14 days written notice of its intention to exercise such right, Supplier reserves the right to suspend contractual performance or withhold any relevant shipment until each of the same have been satisfied.
14.5 Upon the expiration or termination of any PO or SOW the following provisions shall continue in full force and effect:- Clause 5 and Clause 10 to 15 inclusive.
15. GENERAL
15.1, Supplier will not, save as required by legal or financial regulations, advertise or publicly announce that it is undertaking work for Customer pursuant to the PO or SOW without the prior consent of Customer, which shall not be unreasonably refused, conditioned or delayed.
15.2 Except as may be expressly provided elsewhere in these Conditions, Customer may not transfer, assign or sub-license the PO or SOW or any or all of its rights under it without the prior written consent of Supplier. Supplier or Customer may assign the PO or SOW on a transfer of its business or undertaking in which event the PO or SOW shall automatically accrue for the benefit of the assigning party's successor by operation of law. Supplier may assign, sub-contract or procure the performance of all or any part of the PO or SOW by an Affiliate.
15.3 The construction, validity and performance of the PO or SOW shall be governed by the laws of the Australian Capital Territory. The parties submit to the exclusive jurisdiction of the Courts of Australia to resolve any disputes between them. All proceedings shall be conducted using the English language and, in the event that these Conditions are translated, the English language version shall be the governing version. Notwithstanding the foregoing the parties shall attempt to resolve in good faith any disputes arising and shall give due consideration to the use of mediation or alternative dispute resolution techniques and reference to independent experts prior to the issue of court proceedings.
15.5 The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
15.6 The failure of either party to enforce any term of these Conditions does not constitute a waiver of it and shall in no way affect the right later to enforce the term.
15.7 The invalidity or unenforceability of the whole or part of any provision of these Conditions shall not adversely affect the validity or enforceability of the remaining provisions or the remainder of the provision in question, which shall remain in full force and effect. Where relevant, the parties shall use commercially reasonable efforts to find a new stipulation resembling the invalid one in its commercial consequence as much as possible.
15.8 Unless otherwise agreed in writing, entry into a PO or SOW shall not affect any related non-disclosure agreement entered into between the parties, which shall continue in full force and effect and shall apply to the subject matter of the PO or SOW. All pricing, software and technical information provided by Supplier under or in relation to any PO or SOW shall be the confidential information of Supplier and not disclosed to any third party by Customer.
15.9 These Conditions and the documents referred to herein (including any non-disclosure agreement between the parties) as being agreed in writing between the parties represent the entire and complete agreement with respect to the PO's and SOW's placed hereunder and supersedes any prior or contemporaneous agreements or understandings between the parties.
15.10 Customer agrees to fully comply with all relevant export laws and regulations of the United States or any other relevant jurisdiction.