TNP BROADCAST SALES LIMITED
ONLINE TERMS AND CONDITIONS
Please read the following Online Terms and Conditions carefully. They contain important information about your rights and obligations. We recommend you print out these Terms and Conditions from the Site by clicking on the print icon on your browser and keep them for your future reference.
1. About us and these Online Terms and Conditions
1.1 "We" are TNP Broadcast Sales Limited, a company registered in England with registered number 3315657 with registered office at 5 Elstree Gate, Elstree Way, Borehamwood, Hertfordshire, WD6 1JD.
1.2 These Online Terms and Conditions govern the supply by us of any products ordered by you on the [http://www.tnpbroadcast.co.uk] web site ("the Site"). The particular product that you order at any one time from us is referred to in these Online Terms and Conditions as "the Product". Further details of the Product can be obtained by reviewing the Site or contacting us. By agreeing to order a Product, you agree to be legally bound by these Online Terms and Conditions. These Online Terms and Conditions supplement and must be read in conjunction with our Standard Terms and Conditions as updated from time to time. Our Standard Terms and Conditions apply to all sales of the Products to business customers (whether off-line or online), except to the extent that any of the Standard Terms and Conditions are inconsistent with any of the provisions of these Online Terms and Conditions, in which case the provisions of these Online Terms and Conditions shall prevail. The "Standard Terms and Conditions" can be accessed by clicking here or by contacting us.
1.3 In these Online Terms and Conditions:
1.3.1 "you" means a business customer who orders a Product from us. THESE ONLINE TERMS AND CONDITIONS DO NOT APPLY TO CONSUMER CUSTOMERS. IF YOU ARE A CONSUMER AND YOU WOULD LIKE TO BUY A PRODUCT FROM US, THEN YOU MUST CONTACT US SEPARATELY; and
1.3.2 "the Contract" means your order of a Product in accordance with these Online Terms and Conditions which we accept in accordance with clause 2.9 below. If you order more than one Product or several units of the same type of Product, each unit of each Product will constitute a separate Contract.
2. Making Orders of Products
2.1 When making an order on the Site, you must follow the instructions on the Site as to how to make your order and for making changes to your order before you submit it to us.
2.2 Unless otherwise specifically agreed by us, we do not intend for anyone from outside of the [United Kingdom] to order a Product from us.
2.3 Irrespective of any previous price you have seen or heard, once you select a Product that you wish to order, you will then be shown or told the price you must pay including VAT, if applicable, and any applicable delivery charges. Subject to clauses 2.11 and 2.12 below, this is the total that you will pay for receipt of the ordered Product. There are no extra charges unless you opt for a special delivery service or we agree to make delivery outside of mainland United Kingdom, in which case we shall inform you of any additional cost before we agree to your request.
2.4 When you order on the Site, you shall pay for the Product at the time of ordering by supplying us with your credit or debit card details from a credit or debit card company acceptable to us, which we require in order to process your order. We shall not be bound to supply until after we have received cleared funds. We shall obtain the money for payment of the Product when we accept your order.
2.5 If you are asked for details of a payment card, you must be fully entitled to use that card. The card must have sufficient funds to cover the proposed payment to us.
2.6 You undertake that all details you provide to us for the purpose of purchasing the Product from us will be correct, that the credit or debit card which you use is your own and that there are sufficient funds or credit facilities to cover the cost of the Product. We reserve the right to obtain validation of your credit or debit card details before providing you with the Product.
2.7 When you submit an order to purchase a Product from us, you agree that you do so subject to these Online Terms and Conditions, together with the Standard Terms and Conditions and Privacy Statement in force at the time of your order. When you submit an order to purchase a Product from us on the Site, you agree that you also do so subject to:
2.7.2 the copyright notice,
in force at the time of your order.
2.8 Your order remains valid as an offer until when we accept your order or if earlier when we have become aware that you are revoking your order.
2.9 We shall not be obliged to supply the Product to you until we have accepted your order. Following receipt of your order, we may in our discretion send you an acknowledgement of your order, but we shall not be obliged to do so. An e-mail, letter, fax or other acknowledgement of your order by us is purely for information purposes and does not constitute acceptance of your order. The Contract shall be formed when we accept your order by receiving cleared funds from you or your credit or debit card company. We may in our discretion refuse to accept an order from you for any reason, including (but not limited to) unavailability of supplies. We may send a confirmatory invoice to you at any time after your order.
2.10 If you discover you have made a mistake with your order after you have submitted it to us, please contact [email@example.com] immediately.
2.11 We endeavour to ensure that the price given to you before you order is accurate, but the price of your order will need to be validated by us before delivery. If the price for the order changes before delivery, we will contact you and ask you to confirm that you wish to proceed at the amended price. The amended price shall form the price of the Contract. If you do not agree to proceed at the amended price, then you may cancel the Contract by informing us at any time before delivery. We shall be deemed to have received that information only when a living person acting on our behalf has actual knowledge of your cancellation.
2.12 If there is no VAT applicable to your order, then the price that you must pay to us for the order will be reduced by deducting the VAT element confirmed in the confirmatory e-mail.
2.13 We do have the right to cancel customers order and fully refund customer for the amount the they have paid, if there was an error/typo on the website and we can't fulfil the order.
3. Delivery of the Product
3.1 We aim to deliver the Product to you at the place of delivery requested by you in your order. Alternatively, you may let us know if you wish to collect the Product from us at our premises, in which case we shall tell you when it is ready for collection. We aim to deliver or let you know when the Product is ready for collection within the time indicated by us at the time of your order but we cannot promise an exact date at the time of your order. We shall not be liable to you for late delivery or for informing you late that the Product is ready for collection. Delivery times given by us or on the Site are estimates only. We may deliver in instalments.
3.2 Until delivery, we reserve the right to cancel the Contract by informing you, even after our acceptance. In respect of an order that we have accepted, we shall inform you if we are unable to deliver the Product to you within 21 days of the date on which you ordered it. However, if we have not delivered the ordered Product or (if you asked to collect it) you have not been informed that it is ready for collection within 21 days (or such other period as you and we may agree) of the date on which you ordered it, then you may cancel the Contract by informing us. The Contract shall be cancelled when a living person acting on behalf of the party receiving the information has actual knowledge of the cancellation by the other. In that event, within 14 days of the date on which cancellation was received, we shall refund to you or your credit or debit card company as applicable any money paid to us under the Contract.
3.3 We shall not be liable to you for delay in delivery or (except for a refund of the price paid for the Product) any Product that we are unable to supply at all that you have ordered and we have accepted.
4.1 We shall keep a record of your order and these Online Terms and Conditions until six years after we have accepted your order. However, for your future reference, we advise you to print and keep a copy of these Online Terms and Conditions and the documents referred to in them, your order and any e-mail or written acknowledgement that we make.
4.2 The Contract shall be governed by English law and you hereby submit to the non-exclusive jurisdiction of the English courts. All dealings, correspondence and contacts between us shall be made or conducted in the English language.
STANDARD TERMS AND CONDITIONS OF SALE (these Terms and Conditions")
In the Contract:
1.1 the following terms shall have the following meanings unless the context otherwise requires:
"Breach of Duty" has the meaning given to it in Clause 9.7.1;
"Business Day" any day other than (i) a Saturday, (ii) a Sunday or (iii) a day when the clearing banks are not physically open for business in the City of London;
"Business Hours" any time between and including 09:00 and 17:00 on a Business Day;
"Contract" these Terms and Conditions together with the relevant Order Acknowledgement. Where the Customer makes an Online Order the contract shall also include the Online Terms and Conditions together with any documents referred to in the Online Terms and Conditions.
"Customer" the customer of TNP whose details may be more particularly set out in the Order Acknowledgement;
"Customer Obligations" the obligations of the customer (including those set out in these Terms and Conditions and in the Specification (if any)) which the customer must comply with to enable TNP to carry out the Services;
"Event of Force Majeure"
has the meaning given to it in Clause 12.1;
"Fees" the fees payable by the Customer to TNP for the supply by TNP of all Products and Services as may be stipulated in the relevant Order Acknowledgement (or if no such fee is agreed in writing or specified by TNP, then this shall be the fee listed in TNP's published price list current at the date of the Order);
"ID" documents which confirm: (i) the name and date of an individual including a current valid full passport, national identity card or resident’s permit or current photocard driving licence; and (ii) the current address of an individual including a recent (not more than 3 months old) utility or local authority council tax bill;
"Liability" has the meaning given to it in Clause 9.7.2;
"New Products" any products provided or to be provided by TNP to the Customer pursuant to the Contract which have not been used but are not accompanied by a guarantee and/or warranty service provided by the Third Party Supplier;
"Online Orders" Orders for the supply by TNP of Products made online on the http://www.tnpbroadcast.co.uk website;
"Online Terms and Conditions" the terms and conditions that apply to Online Orders which can be accessed on the http://www.tnpbroadcast.co.uk website;
"Order" the request (in any form) by the Customer to TNP for the provision of particular Products and/or Services, which may be in accordance with the terms of a particular Quotation;
"Order Acknowledgement" the written document or written communication which TNP despatches to the Customer (in response to TNP’s receipt of an Order), which shall contain the particular details of any provision of particular Products and/or Services (together with a Specification if applicable) and which may reflect the commercial terms of the Quotation;
"Party" either TNP or the Customer;
"Payment" has the meaning given to it in Clause 4.2;
"Previously Operated Products" any products provided or to be provided by TNP to the Customer pursuant to the Contract which have been used and are not accompanied by a guarantee and/or warranty service provided by the Third Party Supplier;
"Products" any products provided or to be provided by TNP to the Customer pursuant to the Contract (including New Products, Previously Operated Products, Software, Special Products and any associated packaging), as more particularly described in the Order Acknowledgement;
"Quotation" the quotation (in any form) from TNP to the Customer detailing the number, quantity and type of Products and/or Services (together with the Specification if applicable) that TNP is willing in principle to supply to the Customer;
"Rates" TNP’s time and materials rates for providing services, being either at the rates set out in the Order Acknowledgement or (if not set out there) at TNP’s standard time and materials rates from time to time; as uplifted in accordance with TNP’s standard percentage uplifts for performing any of the Services outside TNP’s normal working hours;
"Services" any services provided or to be provided by TNP to the Customer pursuant to the Contract, as may be more particularly described in the Specification;
"Software" any software provided or to be provided by TNP to the Customer whether as a separate product or incorporated into a product or any software to be installed by TNP pursuant to the Contract, as may more particularly be described in the Order Acknowledgement;
"Special Products" any products provided or to be provided by TNP to the Customer pursuant to this Contract which are accompanied by a guarantee and/or warranty service provided by a Third Party Supplier;
"Specification" the document containing the specific information relating to the particular services (if any) to be supplied by TNP to the Customer and details of the customer obligations;
"Term" the period described in Clause 11.1;
"Third Party Supplier" any person from whom (directly or indirectly) TNP obtains the Products;
"TNP" TNP Broadcast Sales Limited, a company registered in England under number 3315657 whose registered office is at 5 Elstree Gate, Elstree Way, Borehamwood, Hertfordshire, WD6 1JD, England (facsimile number - +44 1923 712 777);
"VAT" any tax introduced pursuant to a direction of the Council of the European Community relating to turnover taxes including value added tax as provided for in the Value Added Tax Act 1994 and supplemental legislation (whether delegated or otherwise), any tax of a similar nature which any be substituted for or levied in addition to it and any sales tax;
1.2 references to "Clauses" are to clauses of these Terms and Conditions;
1.3 the headings to Clauses are inserted for convenience only and shall not affect the interpretation or construction of the Contract;
1.4 words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership;
1.5 references to "includes" or "including" or like words or expressions shall mean without limitation;
1.6 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification); and
1.7 references to "written" or in "writing" (except in respect of sending a notice in accordance with Clause 13) includes in electronic form.
2.1 The terms of the Contract apply to the exclusion of any terms and conditions submitted, proposed or stipulated by the Customer. These Terms and Conditions apply to TNP’s supply of all Products, and/or Services. The giving by the Customer of any delivery instruction or the acceptance by the Customer of delivery or collection of a Product shall constitute unqualified acceptance by the Customer of these Terms and Conditions.
2.2 Save as expressly provided herein, the Contract (together with any documents referred to in it) shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties hereto preceding the date of the Contract and in any way relating to the subject matter of the Contract and to the exclusion of any representations not expressly stated herein save for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each Party acknowledges that it has not entered into the Contract based on any representation that is not expressly incorporated into the Contract.
2.3 The Contract (together with any documents referred to in it) constitutes the whole agreement and understanding of the Parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
2.4 Subject to Clause 2.2, all materials and other particulars furnished by TNP prior to the Order Acknowledgement or in TNP’s sales or marketing materials or other documents (including its catalogues, trade literature, brochures, quotations, price lists or website) or made orally by TNP are given for general information purposes only and the Customer acknowledges that it is not entering into the Contract in reliance upon any such materials or other particular; the Products may also look different (and the colours may be of different shades) to their representation in any such materials or particulars.
2.5 A Quotation shall be valid for up to 10 Business Days from the date of the Quotation, following which the Quotation shall expire.
2.6 Except as expressly provided otherwise in the Contract, no change to the Contract shall be binding unless agreed in writing by each of TNP and the Customer and in any format described as being required in the Order Acknowledgement.
2.7 In the event of any conflict between the provisions of these Terms and Conditions and the provisions of the Order Acknowledgement, then the Order Acknowledgement shall take precedence over these Terms and Conditions.
2.8 If the Customer provides TNP with an Order, purchase order, confirmation of order, specification or other document for the Products, such document shall be purely for the Customer's administrative purposes only and shall not form part of the Contract.
2.9 The Customer shall ensure that the Order is on the same terms as any Quotation and is made in accordance with the terms of the Quotation. If the Parties agree that TNP will proceed to provide the Products and/or Services, then such provision shall be in accordance only with the terms of the Order Acknowledgement (and any differences in the Order from the Quotation or Order Acknowledgement shall have no effect unless the Parties expressly agree otherwise in writing). Any Order shall be a statement of the Customer's intent to proceed and any differences from the Quotation shall have no contractual effect unless the Parties specifically agree to them in writing.
2.10 The Contract shall be legally formed and the Parties shall be legally bound when TNP dispatches its Order Acknowledgement to the Customer confirming the terms on which the Parties have agreed to proceed.
2.11 It is the Customer's responsibility to ensure that the Quotation and Order Acknowledgement are complete and accurate and to point out to TNP in writing anything which is incomplete or inaccurate.
2.12 The Customer shall, at the request of TNP, provide to TNP two forms of ID to verify the Customer’s identity, date of birth and residential address. In the absence of the ID so requested by TNP, TNP may, at its discretion, do either or both of the following (without prejudice to its other rights and remedies):
2.12.1 suspend the performance of the Contract and any other agreement between TNP and the Customer until the ID has been provided; or
2.12.2 cancel the Contract by informing the Customer in writing.
2.13 If TNP is unable to supply any Product which it has agreed to supply to the Customer because of circumstances outside of its control (including problems with third party suppliers), TNP shall be entitled to cancel the Contract by informing the Customer in writing as soon as reasonably practicable as such circumstances come to TNP’s attention, notwithstanding that TNP has dispatched an Order Acknowledgement. On the event of cancellation by TNP pursuant to this clause 2.13, TNP shall provided a refund to the Customer of the price paid for the Product but shall otherwise, to the extent permitted by law, have no Liability to the Customer in respect of such cancellation.
2.14 Each Order Acknowledgement constitutes a separate agreement. There may be more than one agreement between the Parties in force at the same time as the Contract.
2.15 TNP is not responsible for any services or products not expressly stipulated in the Contract that TNP will provide. Except for any matter upon which TNP specifically agrees in writing with the Customer to advise or do, TNP shall not have any Liability for advising on, or failing to advise on, or doing, or failing to do, anything else (including on any laws, rules, regulations, bye-laws or codes of practice).
3.1 In consideration for the payment of the Fees for the Products by the Customer, TNP shall supply the Products referred to in the Order Acknowledgement to the Customer.
3.2 TNP may supply the Products with modifications or improvements incorporated into them.
3.3 Partial delivery or performance shall be permitted. TNP may deliver and provide the Products in instalments. Unless the Parties otherwise agree in writing, TNP may invoice the Customer for all Products covered by the Order Acknowledgement in accordance with Clause 10.5, notwithstanding that TNP has not yet delivered all the Products to the Customer.
3.4 Delay, default or non-delivery of any instalment by TNP shall not entitle the Customer to cancel or terminate, and shall not affect, the remainder of the Contract.
3.5 TNP shall inform the Customer of the estimated date on which the Products will be ready for delivery or collection.
3.6 Unless otherwise agreed in writing between the Parties, the Contract is for delivery of the Products at the place stipulated as such in the Order Acknowledgement (or if no place stipulated, then TNP’s normal location for dispatch of the Products). Section 32 of the Sale of Goods Act 1979 shall not apply to the Contract.
3.7 The Customer shall ensure that it is ready for safe receipt (or, as the case may be, collection) of the Products without undue delay and during Business Hours.
3.8 The Customer may be required to sign a delivery note and other documentation upon delivery of the Products. The signing of any such documentation by the Customer shall be evidence that the Products have been delivered and in the quantities stipulated in the documentation.
3.9 All risk in the Products shall pass to the Customer upon delivery, provided that where delivery is delayed due to breach by the Customer of its obligations under the Contract risk shall pass at the date when delivery would have occurred but for that breach.
3.10 The Customer shall keep the Products fully insured on TNP’s behalf with a reputable insurance company to the reasonable satisfaction of TNP for their full price against all risks of loss or damage from the time when the risk passes to the Customer until property passes in accordance with Clause 4. On request, the Customer shall produce the policy of insurance to TNP. If the Products are lost, damaged or destroyed, the Customer shall hold the proceeds of insurance for and to the order of TNP pending Payment.
3.11 If delivery of the Products is delayed or obstructed through the Customer's default or breach of the Contract or if the Customer unreasonably declines or delays in accepting or taking delivery or receipt of the Products, then (subject to the rest of the Contract) TNP shall not have any Liability to the Customer as a result and TNP may (without prejudice to any other right or remedy available to it) do all or any of the following:
3.11.1 sell the Products for TNP’s account;
3.11.2 cancel the Contract as regards any Products that remain to be delivered or performed;
3.11.3 charge a reasonable storage fee for the Products;
3.11.4 charge its delivery fees for redelivering the Products; and
3.11.5 require the Customer to indemnify TNP for any and all losses, liabilities, claims, proceedings, judgments, damages, demands, actions, costs, charges, expenses, penalties and fines suffered or incurred by TNP as a result of the Customer declining or delaying.
3.12 Where delivery is not to the United Kingdom, the Customer shall be responsible for complying with all applicable laws, regulations and codes of practice governing the importation and use of the Products into the country of destination and for payment of any duties or levies thereon.
4.1 Title to and ownership of the Products shall pass on the later of:
4.1.1 delivery (or installation); and
4.1.2 Payment (as defined in Clause 4.2).
4.2 Notwithstanding delivery (or installation), title to and ownership of the Products shall not pass to the Customer until TNP has received in full (in cash or cleared funds) all sums due to it in respect of:
4.2.1 the Products; and
4.2.2 all other sums which are or which become due to TNP from the Customer on any account;
4.3 Until Payment, the Customer shall:
4.3.1 hold the Products on a fiduciary basis as TNP’s bailee;
4.3.2 store the Products (at no cost to TNP) in good condition and separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as TNP’s property; and
4.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Products.
4.4 The Customer may resell the Products before Payment solely on the following conditions:
4.4.1 any sale shall be effected in the ordinary course of the Customer's business at full market value;
4.4.2 any such sale shall be a sale of TNP’s property on the Customer's own behalf and the Customer shall deal as principal when making such a sale; and
4.4.3 the Customer shall still be responsible for paying to the full value of the Payment. If TNP requires, the Customer shall authorise and direct such third party buyer to pay to TNP a like part of the sum due to the Customer in respect of the Products sold and assign to TNP such part of the debt owed to the Customer by the third party.
4.5 Until title passes under Clause 4.1, the Customer acknowledges that, as between TNP and the Customer, TNP owns all intellectual property rights in any material produced, created, developed or made using the Products and/or making use of the Services provided by TNP. TNP hereby assigns by way of future assignment all such intellectual property rights back to the Customer at the time when title passes under Clause 4.1.
4.6 TNP may at any time until title passes under this Clause 4 without notice recover possession of the Products which are the property of TNP. The Customer hereby grants to TNP for TNP and its agents, staff, officers, employees and sub-contractors an irrevocable licence to enter for that purpose any premises then occupied by or in the ownership or possession of the Customer. The Customer shall indemnify TNP against all claims, losses, damages, liabilities, costs and expenses so arising.
4.7 TNP shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from TNP.
4.8 On termination of the Contract, howsoever arising, TNP’s rights contained in this Clause 4 shall remain in effect.
5. PRODUCT WARRANTY
New Products and Previously Operated Products
5.1 Subject to anything else to the contrary in the provisions of the Contract, TNP warrants that:
5.1.1 as at delivery and for 12 months thereafter New Products shall be free from material defects in design, workmanship and materials (excluding wear and tear) and materially work in accordance with any operating manual for that Product issued by the Third Party Supplier; and
5.1.2 unless otherwise specified in the Order Acknowledgement, as at delivery and for three months Previously Operated Products shall be free from material defects in design, workmanship and materials (excluding wear and tear) and materially work in accordance with any operating manual for that Product issued by the Third Party Supplier.
5.2 TNP’s Liability for defective Products is subject to:
5.2.1 the Customer notifying TNP of any claim promptly upon discovery of the defect and in any event within one month of discovery, specifying with reasonable detail the way in which it is alleged that the Products do not conform to the Contract;
5.2.2 the Customer having provided TNP with TNP's delivery note number and such other information and documentation as TNP reasonably requires at the same time as the notice in Clause 5.2.1;
5.2.3 the Customer showing to TNP’s reasonable satisfaction that the defect is solely attributable to TNP’s (or TNP’s sub-contractors') defective design, materials or workmanship in the Products and not wear or tear from normal use or the combination, incompatibility, attachment, affixation, incorporation or mixing of the Products with any other goods, products, materials or substances;
5.2.4 the Products having not been misused or subjected to neglect, improper or inadequate care, carelessness, abnormal working or usage conditions, or involved in any accident or attempt at repair, replacement, alteration, change or modification except by or on behalf of TNP or approved by TNP, or dealt with or stored contrary to good trade practice or any oral or written instructions, advice or recommendation of TNP;
5.2.5 the Customer allowing TNP the opportunity to inspect and remove the Products;
5.2.6 the Customer having paid for the Products in full; and
5.2.7 upon TNP’s request, the Customer returning the defective Products carriage and insurance paid at the Customer's risk to TNP’s premises or such other location stipulated by TNP anywhere in the world and carefully packed to avoid damage in transit (and Section 36 of the Sale of Goods Act 1979 shall not apply). Unless and until TNP receives the Products, the Customer shall hold the Products safely and securely in good condition.
5.3 Clauses 5.1 to 5.2 inclusive shall not apply to Products which are Special Products.
5.4 Where TNP supplies Special Products to a Customer the Special Products are supplied “as is” without further warranty beyond that provided by the Third Party Supplier. Alternatively, or as well, the Third Party Supplier may provide a guarantee to provide support and maintenance (subject to the Third Party Supplier’s terms and conditions) in respect of the Special Products. It is the Customer’s responsibility to ensure that it has all necessary direct rights and remedies from the Third Party Supplier directly.
5.5 To avail itself of remedies in respect of faulty Special Products, the Customer shall avail itself of the applicable remedies offered by the Third Party Supplier directly with that Third Party Supplier in respect of such Special Products.
5.6 It is the Customer’s responsibility to decide whether or not to proceed with ordering Special Products from TNP if it is not happy with the extent of any warranty, guarantee or support and maintenance agreement offered by the Third Party Supplier.
5.7 The Third Party Supplier may require the Customer to register its purchase of the Special Product directly with the Third Party Supplier before the Customer is entitled to the benefit of any guarantee and/or warranty. Where the Customer fails to register its purchase of any Special Products with the Third Party Supplier other than due to TNP’s fault, TNP shall not have any Liability arising from the invalidation of any guarantee and/or warranty service provided by the Third Party Supplier.
5.8 The Customer acknowledges that any repairs to the Special Products by TNP or a third party may invalidate the guarantee and/or warranty provided by the Third Party Supplier. TNP does not accept and hereby excludes any Liability arising from the invalidation of any guarantee and/or warranty provided by the Third Party Supplier as a result of TNP complying with the Customer’s instructions to carry out repairs to the Special Products.
5.9 Where a New Product or a Previously Operated Product is Software or incorporates Software, the Customer acknowledges that:
5.9.1 TNP has not created or written the Software;
5.9.2 TNP is reliant on the Third Party Supplier’s assistance to carry out any repairs or fixes to the Software including providing the appropriate patches, updates or revisions for the Software; and
5.9.3 any repairs carried out to the Software at TNP’s discretion may be delayed whilst TNP seeks the assistance of or awaits the repair by the Third Party Supplier of the Software.
5.10 TNP shall not have any Liability for damage to, or viruses or other code that may affect, any computer equipment, hardware, software, data or other property as a result of the Customer’s use or installation of the Software or the Customer’s use or installation of any Product which incorporates Software.
5.11 Subject to anything else to the contrary in the provisions of the Contract, TNP warrants that it shall deliver the Products to the Customer undamaged and in the quantities agreed in the Order Acknowledgement.
5.12 Subject to Clause 5.1 and Clause 5.11, TNP shall at its option:
5.12.1 repair or replace; or
5.12.2 repay an appropriate portion of the purchase price of; or
5.12.3 provide a credit note in respect of a reasonable part of;
the delivered Products which are not in conformance with the warranties set out in Clause 5.1 or Clause 5.11.
5.13 TNP shall not have any Liability for loss of or damage to Products in transit or on delivery under Clause 5.11 unless the Customer informs TNP within three Business Days, and in any event notifies TNP in writing within five Business Days:
5.13.1 after the expected date of delivery or receipt that it has not received the Products; or
5.13.2 after receipt that the Products are damaged; and also
unless the Customer provides TNP with TNP’s delivery note number and such other information and documentation as TNP reasonably requires at the same time as the notice.
5.14 TNP shall not have any Liability for providing Products to the extent caused by TNP’s compliance with and reliance on the Customer's instructions or requirements.
5.15 The warranty contained in Clause 5.1.2 and in Clause 5.11 shall not apply to the following parts to the extent that they are incorporated into Previously Operated Products:
5.15.1 camera blocks (including CCDs and CMOS) and associated circuitry parts;
5.15.2 video heads;
5.15.3 optical pick up devices; and
5.15.4 magnetic pick up devices.
5.16 The warranties contained in Clause 5.1 and Clause 5.11 are specifically limited to the Customer. No warranty is made to any other person, whether subsequent buyer or user or customer, or to any bailee, licensee, assignee, employee, agent or otherwise.
5.17 If the Customer makes an invalid claim under any warranty, TNP may charge the Customer for its fees and costs of examining, storing, repairing and replacing the Products and dealing with the claim and removing and delivering the Products.
5.18 Except where expressly provided for within the Contract, TNP excludes all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Products.
5.19 The Warranty does not cover any software / networking or other configuration issues, nor does it cover problems arising due to incompatibility with the customers own hardware or software. Any services performed (such as RAID Setups, Overclocking Setups etc, Software Installations, Optimizations, Repairs etc.) are not provided with any warranty. Software or faults unrelated to the system hardware are also excluded from the warranty. This warranty does not apply to any cosmetic or other damage to the outer casing of the computer, dead pixel issues in PC Cases with LCD readouts / LED Display screens, defect in the goods arising from reasons other than fair wear and tear i.e. wilful damage, physical damage, accidental damage, negligence by you or any third party, use other than as recommended by the Supplier, failure to use suitable Electric Surge Protection equipment, using the goods in an unventilated / hot or dusty environment or a general failure follow the Supplier`s / Manufacturers Instructions for using the product.
5.20 Any alteration or repairs carried out by the customer or third parties are carried out at the customers own cost and risk. Furthermore any such repairs will invalidate the warranty unless otherwise approved by TNP Broadcast Sales Ltd in writing. All components are serialised during assembly and tampering or removal of components invalidates this warranty. Overclocking the CPU, RAM, GPU will invalidate the warranty. All Softwares, Consumables and Services (e.g. Printer Inks, Standard Keyboards / Mice / Speakers, Overclocking / Performance Optimization / Delivery whether Standard or Timed) are non refundable and are not provided with any Warranty.
5.21 We cannot be held responsible for loss of data, or need to remind you about backing up your data. Your data is your responsibility and you should take all necessary precautions to reinstate if a loss occurs. It is possible that hard drives and/or solid state drives may be formatted or replaced when returned under warranty regardless of any correspondence stating otherwise.
Any data loss, corrupted software, any problems caused by Windows Updates are not responsibility of TNP Broadcast Sales Ltd, it is a responsibility of the customer to disable or pick specific updates. We can not be held responsible for any driver incompatibility caused by those Windows Updates.
6.1 In consideration for the payment of the Fees for the Services by the Customer, TNP shall supply the Services referred to in the Order Acknowledgement to the Customer.
6.2 TNP warrants that:
6.2.1 it shall use its reasonable skill and care in providing any Services;
6.2.2 its employees, agents and sub-contractors have the necessary skill to provide any Services;
6.2.3 any Services will be provided in a professional, competent and workmanlike manner and in accordance with the Specification;
6.2.4 it has all necessary rights, permissions and consents to enter into the Contract; and
6.2.5 it shall use its reasonable endeavours to ensure that while it and its and their employees, agents and sub-contractors are on the Customer's premises, they will conform to the Customer's normal codes of staff and security practice as are advised to them in advance by the Customer.
6.3 TNP does not warrant that the Services will be uninterrupted or error-free.
6.4 The Customer shall in accordance with the Specification and the timescale agreed between the Parties in writing and at no charge to TNP comply with the Customer Obligations.
6.5 In order to enable TNP to fully, effectively and efficiently perform its obligations under the Contract, the Customer shall fully and on time perform the obligations and the Customer Obligations in the manner, frequency and form required under the Contract. Failure to do so may result in TNP being delayed in performing the Services (and possibly by more than the amount of time in which the Customer is delayed if TNP needs to arrange a time when the relevant personnel are next available to perform the Services).
6.6 If TNP is delayed or hindered in providing any Services as a result of any breach, delay or failure by the Customer to perform any of its obligations under the Contract, including failure to comply with the Customer Obligations, then TNP may charge the Customer at the Rates for:
6.6.1 any time reasonably incurred as a result of the hindrance or breach (including any wasted time for which TNP had anticipated that its personnel would provide Services under the Contract but become unable to provide the Services at that time as a result of the Customer’s act or omission); and
6.6.2 any time that TNP was going to spend in providing the Services, in addition to the time it actually does spend in providing the Services.
6.7 Except where expressly provided for within the Contract, TNP excludes all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Services.
6.8.1 TNP Broadcast Sales Ltd offer a consultancy service as part of a broadcast system integration project or as a adhoc paid service. The information supplied by the TNP Broadcast Sales Ltd consultant is supplied to the customer on a privileged confidential basis and cannot be used by the customer for any other use other than for the purposes of completing a broadcast integration/sales project supplied by TNP Broadcast Sales Ltd.
6.8.2 TNP Broadcast Sales Ltd reserve the right to charge for this consultancy if provided as part of an integration and sales project even if the customer no longer wishes to proceed with the service offered by TNP broadcast Sales Ltd.
6.8.3 TNP Broadcast Sales Ltd have the right to charge for all consultancy if it is deemed the customer has or is about to profit/circumvent or misuse the information supplied by TNP Broadcast Sales Ltd causing a loss of sales and income for TNP Broadcast Sales Ltd.
7. TIMEFRAMES FOR PERFORMING TNP’S OBLIGATIONS
7.1 TNP shall use its reasonable endeavours to perform its obligations within any timescales set out in the Contract, but any times for performance so set out or given by TNP shall be estimates and TNP shall not have any Liability for any delays or failure to accurately perform its obligations:
7.1.1 if it has used those endeavours; or
7.1.2 if caused by any failure or delay on the part of the Customer or its employees, agents, sub-contractors or customers or by any breach by the Customer of the Contract.
If there is any slippage in time, TNP shall use its reasonable endeavours to reschedule delayed tasks to a mutually convenient time.
8. CUSTOMER'S OBLIGATIONS
8.1 The Customer shall (and shall procure that its agents, employees, sub-contractors and customers shall):
8.1.1 provide proper, adequate, safe, comfortable and suitable environmental and operating conditions if TNP undertakes any work at the Customer's (or its or agents', employees', sub-contractors' or customers') premises;
8.1.2 provide access at all reasonable times on the Customer's (or its agents', employees', sub-contractors' or customers’) premises to adequate space, accommodation, equipment, hardware, telecommunications, systems, third party software and any facilities to enable TNP to perform its obligations and exercise its rights under the Contract;
8.1.3 provide all services and products in accordance with the Customer Obligations;
8.1.4 inform TNP in writing within a reasonable time before the commencement of any Services of any regulations relevant to TNP’s representatives when working at any premises under the control of the Customer including site regulations;
8.1.5 be present at any of its premises at the required times to enable TNP to perform its obligations at the times reasonably required by TNP under the Contract;
8.1.6 fully, frequently and promptly update TNP as to progress with use of the Services and Products generally and the Customer's activities and developments generally, including reporting on any concerns, issues, queries or comments that need to be resolved or discussed;
8.1.7 shall ensure at all times (whether before or after TNP has carried out the Services) that all of the Customer’s software and data are regularly copied to secure media for back-up purposes in such a manner to ensure full protection against loss or damage from any cause, and the Customer shall ensure that copies of them are available for purposes of restoration;
8.1.8 ensure that the Customer's employees, sub-contractors, agents and customers fully co-operate with, and make themselves available at all reasonable times for discussion and meetings with, TNP and its employees, sub-contractors and agents and to enable TNP to promptly perform its obligations under the Contract;
8.1.9 promptly provide to TNP such information and assistance (including anything identified in the Order Acknowledgement to be provided to TNP) that will enable TNP to carry out fully, accurately and promptly its obligations under the Contract to the best of its ability;
8.1.10 promptly comply with all reasonable requests of TNP in connection with the Contract; and
8.1.11 be responsible for ensuring that, and the Customer hereby warrants and undertakes to TNP that the manner of the Customer’s and its agents’ and employees’ and sub-contractors’ and customers’ use of the Services and Products:
(a) conforms in all respects with all applicable laws, rules, regulations, bye-laws and codes of practice;
(b) does not infringe the privacy rights or Intellectual Property Rights of any third party; and
(c) is not defamatory, malicious, abusive, obscene, indecent, discriminatory or harassing.
8.2 The Customer may be required to sign a confirmatory note upon any of the Services (in whole or part) having taken place. The signing of any such note by the Customer shall be evidence that the relevant Services have been provided.
8.3 The Customer agrees that during the Term and for a period of one year following its termination or its expiry, not to solicit or induce any officer, employee or agent of TNP who was involved with the provision of Services or Products to the Customer to terminate their employment or engagement with TNP without the prior written consent of TNP. For the avoidance of doubt, any general recruitment advertisement placed by or on behalf of the Customer shall not be deemed to be solicitation for the purposes of this Clause 8.3. TNP shall not have any Liability for delay, breach, mis-performance or non-performance of the Contract if caused by the Customer’s engagement or employment of any person engaged or employed by TNP.
8.4 The Customer shall ensure, and TNP shall not have any Liability for the Customer’s failure to ensure, that:
8.4.1 the Services, Products and the Specification are sufficient and suitable for its purposes and meet its individual requirements; and
8.4.2 any Software supplied by TNP to the Customer (on its own and not with or part of another Product) or to be installed by TNP on behalf of the Customer pursuant to the Services is compatible with any system or product on or in which the Software is to be installed or used.
8.5 It is the Customer’s responsibility to ensure that any Orders are made in good time to allow for any delays, default or non-delivery following an Order Acknowledgement. The Customer warrants and represents that it has adequate insurance to cover any liability arising from any delays, default or non-delivery following an Order Acknowledgment.
9.1 This Clause 9 prevails over all other Clauses and sets forth the entire Liability of TNP, and the sole and exclusive remedies of the Customer, in respect of:
9.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of the Contract or of any goods or services in connection with the Contract; or
9.1.2 otherwise in relation to the Contract or entering into the Contract.
9.2 TNP does not exclude or limit its Liability for:
9.2.1 its fraud; or
9.2.2 death or personal injury caused by its Breach of Duty; or
9.2.3 any breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or
9.2.4 supply of a defective Product in accordance with Part I of the Consumer Protection Act 1987; or
9.2.5 any other Liability which cannot be excluded or limited by applicable law.
9.3 Subject to Clause 9.2, TNP does not accept and hereby excludes any Liability for Breach of Duty other than any Liability arising pursuant to the terms of the Contract.
9.4 Subject to Clause 9.2, TNP shall not have any Liability in respect of any:
9.4.1 indirect or consequential losses, damages, costs or expenses;
9.4.2 loss of actual or anticipated profits;
9.4.3 loss of contracts;
9.4.4 loss of use of money;
9.4.5 loss of anticipated savings;
9.4.6 loss of revenue;
9.4.7 loss of goodwill;
9.4.8 loss of reputation;
9.4.9 loss of business;
9.4.10 loss of operation time;
9.4.11 loss of opportunity; or
9.4.12 loss of, damage to or corruption of, data;
whether or not such losses were reasonably foreseeable or TNP or its agents, staff, officers, employees or sub-contractors had been advised of the possibility of the Customer incurring such losses. For the avoidance of doubt, Clauses 9.4.2 to 9.4.12 apply whether such losses are direct, indirect, consequential or otherwise.
9.5 Subject to Clause 9.2, in respect of any Liability relating to damage to physical property for which TNP carries insurance (excluding, for the avoidance of doubt, but without limitation, data or intellectual property), the total aggregate Liability of TNP shall be limited to the greater of: (a) £250,000; or (b) 110% of the total sums paid and total other sums payable by the Customer to TNP in aggregate, under the Contract, within the twelve months preceding the date on which the claim first arose.
9.6 Subject to Clause 9.2, in respect of any Liability not covered by Clause 9.5, the total aggregate Liability of TNP shall be limited to the greater of: (a) £15,000; or (b) 110% of the total sums paid and total other sums payable by the Customer to TNP in aggregate, under the Contract, within the twelve months preceding the date on which the claim first arose.
9.7 The limitation of Liability under Clauses 9.5 and 9.6 has effect in relation both to any Liability expressly provided for under the Contract and to any Liability arising by reason of the invalidity or unenforceability of any term of the Contract.
9.8 In this Clause 6:
9.8.1 "Breach of Duty" means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty); and
9.8.2 "Liability" means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with the Contract, including liability expressly provided for under the Contract or arising by reason of the invalidity or unenforceability of any term of the Contract (and for the purposes of this definition, all references to the "Contract" shall be deemed to include any collateral contract).
10.1 In consideration for obtaining the Products and Services provided by TNP pursuant to the Contract, the Customer shall pay to TNP the Fees.
10.2 The Fees shall be as set out in the Order Acknowledgement.
10.3 Unless otherwise stipulated in the Order Acknowledgement the Fees are payable in advance of delivery of the Products or commencement of the Services and delivery of the Products or commencement of the Services is conditional on TNP first receiving the advanced Fee and any other sums due in cleared funds in full from the Customer.
10.4 Notwithstanding the Fee in the Order Acknowledgement, TNP may change the Fee by at least 10 days' prior notice to the Customer before the change takes effect if the cost on TNP increases (including the cost of obtaining manufactured Product), in which case the increase will be calculated at cost.
10.5 Unless otherwise stipulated in the Order Acknowledgement (or otherwise agreed between the Parties in writing), TNP may issue invoices to the Customer for the Fee (or the relevant part) upon issuing the Order Acknowledgement.
10.6 Unless otherwise provided in the Order Acknowledgement, the Customer shall pay TNP for any sums due under the Contract within 5 Business Days after the date of the invoice for the relevant sums.
10.7 All Fees and sums due under the Contract are exclusive of any VAT or other duties or taxes (if applicable) which shall be payable in addition at the same time as payment of the Fees and other sums due.
10.8 The Customer shall pay TNP by any payment method reasonably stipulated by TNP.
10.9 Unless otherwise stipulated by TNP in the Order Acknowledgement or agreed in writing between the Parties, Payment shall be in such currency as is in force in England from time to time.
10.10 Time for payment shall be of the essence.
10.11 Payment shall be deemed made when TNP has received cleared funds in full.
10.12 Payment of all sums due to TNP under the Contract shall be made by the Customer in full without any set-off, deduction or withholding whatsoever.
10.13 If the Customer is late in paying any part of any monies due to TNP under the Contract or any other agreement between the Parties, TNP may (without prejudice to any other right or remedy available to it whether under the Contract or by any statute, regulation or bye-law) do any or all of the following:
10.13.1 charge interest on the amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly; and
10.13.2 sell or otherwise dispose of any Products which are the subject of any Order Acknowledgement, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment; and
10.13.3 suspend the performance of the Contract and any other agreement between TNP and the Customer until payment in full has been made.
11. TERM AND TERMINATION
11.1 The Contract shall commence when TNP dispatches the Order Acknowledgement to the Customer and, unless terminated earlier by either Party exercising any right of termination as set out in the Contract, shall continue in force until the Customer has paid the Fees in full and the later of:
11.1.1 TNP having despatched all the Products (if any); and
11.1.2 TNP having completed the Services (if any).
11.2 Either Party may terminate the Contract immediately by notice in writing to the other Party if:
11.2.1 the other Party is in persistent breach of any of its obligations under the Contract or any other agreement between the Parties; or
11.2.2 the other Party is in material breach of any of its obligations under the Contract or any other agreement between the Parties which is incapable of remedy; or
11.2.3 the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under the Contract or any other agreement between the Parties after having been required in writing to remedy such breach within a period of no less than 30 days; or
11.2.4 the other gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other Party's assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator which entitle the court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt.
11.3 In any event, TNP may terminate the Contract if the Customer is at least 10 Business Days' late in paying any sum due under the Contract.
11.4 Termination of the Contract shall be without prejudice to any accrued rights or remedies of either Party.
11.5 Termination of the Contract will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
11.6 Upon termination of the Contract for any reason:
11.6.1 TNP shall cease to perform the Contract; and
11.6.2 all outstanding Fees and any other sums shall become immediately payable, whether invoiced or not.
12. FORCE MAJEURE
12.1 Save for obligations in respect of payment of the Fees, neither Party shall have any Liability for any breach, hindrance or delay in the performance of the Contract attributable to any cause beyond its reasonable control including any event beyond the reasonable control of either party including acts of God, actions or demands or requirements of third parties (including hackers, suppliers, governments or supra-national authorities), insurrection, riot, civil commotion, war, hostilities, warlike operations, enemy action, national emergencies, act of terrorism, piracy, arrests, restraints or detainments of any competent authority, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, earthquake, natural disaster, natural catastrophe, accident, mechanical breakdown, third party software, failure or problems with Third Party Suppliers, public utility supplies (including electrical, telecoms or general Internet failure), unavailability or shortage of or inability to obtain materials, equipment or transportation ("Event of Force Majeure"), regardless of whether the circumstances in question could have been foreseen.
12.2 The performance of each Party's obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
12.3 Each Party shall bear its own costs incurred by the Event of Force Majeure.
12.4 Should any performance of obligations be delayed under this Clause 12, each Party shall nevertheless accept performance as and when the other shall be able to perform.
12.5 If the Event of Force Majeure continues without a break for more than one month, either Party may terminate the Contract immediately by notice to the other, in which event neither Party shall have any Liability to the other by reason of such termination.
12.6 If TNP has contracted to provide identical or similar products or services to more than one customer and is prevented from fully meeting its obligations to the Customer by reason of an Event of Force Majeure, TNP may decide at its absolute discretion which contracts it will perform and to what extent.
13.1 Any notice or other communication required or authorised to be given under the Contract shall be in writing and may be served by personal delivery or by recorded delivery letter (if to an address in the same country) or by overnight courier addressed to the relevant Party at its address stated in the Contract or at such other address as is notified by the relevant Party to the other for this purpose from time to time or at the address of the relevant Party last known to the other.
13.2 Any notice so given by post shall be deemed to have been served two Business Days after the same shall have been despatched to the overnight courier or Post Office and in proving such service it shall be sufficient to prove that the letter was properly addressed and despatched.
14.1 Subject to any assignee (in the case of an assignment) confirming in writing to be bound by the provisions of the Contract, TNP may assign, transfer, novate or subcontract its rights, liabilities or obligations under the Contract either in whole or in part to any other person, firm or company. TNP shall promptly give notice to the Customer of any such assignment, transfer or novation.
14.2 The Customer shall not assign, transfer, novate, charge or sub-contract or purport to assign, transfer, novate, charge or sub-contract the Contract or any of its rights, liabilities or obligations under the Contract without the prior written consent of TNP.
15.1 No failure or delay by either Party in exercising any right under the Contract shall operate as a waiver of such right or extend to or affect any other or subsequent event or impair any rights or remedies in respect of it or in any way modify or diminish that Party's rights under the Contract.
15.2 If any Clause or other provision in the Contract shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability s