1.1 All quotations given, orders accepted and contracts entered into by Amino Communications Limited, a company registered in England under number 3490180 ("we", "us" etc), and any person ("you") for the supply of products ("Products") and/or services (such as training or technical advice relating to Products) ("Services") are subject to these standard terms and conditions of supply ("Conditions") unless you and we sign a separate contract agreeing something different. All other terms and conditions, whether expressly stipulated by you or implied by trade, custom, practice, course of dealing orotherwise, are excluded. "Products" include accompanying packaging and accompanying or corresponding documentation and may include
(a) software (such as applications software, middleware and operating systems software) ("Software") and
(b) hardware (such as set top boxes, cables, remote controls and other accessories) ("Hardware", which expression excludes any reference to Software).
1.2 No quotation, estimate or proposal, which we issue, is an offer, which can be accepted by you so as to form a contract. Any order that you issue shall be deemed placed on and subject to these Conditions and shall constitute an offer, which we may accept or reject. The contract between you and us ("Contract") shall be formed at the time we accept your order. We may accept your order by issuing an order acknowledgement or commencing performance, or as we otherwise decide. No variation or amendments to these Conditions or the Contract shall be valid unless agreed in writing by each of our duly authorised representatives.
1.3 After our acceptance, you may not cancel any order or part of any order without agreement in writing by our duly authorised representative.
2.1 The Products are described in the relevant technical specification published on our website or any other specification that we have agreed in writing with you.
2.2 We reserve the right to amend the specification of any Product on our website if required by any applicable statutory or regulatory requirement.
3.1 Notwithstanding clause 3.4, (and unless otherwise agreed by us in writing), delivery of Products will be FCA Hong Kong or FCA Shanghai as stated by us on the order acknowledgment, as defined in INCOTERMS 2020.
3.2 Accordingly, unless we otherwise agree in writing, delivery will be effected on that basis by you, or a carrier engaged by you, collecting the Products from the premises of our sub-contract manufacturer, or from our premises, as we may notify to you. We may however choose to deliver Software by making it available for electronic download by you and, in this event, the delivery of the Software will be effected upon downloading / installing and/or using the Software. You accept and agree to be legally bound by these Conditions by downloading and/or installing and/or using the Software. If you do not accept these Conditions, do not download, install or use the Software.
3.3 Any date or time for delivery that we agree to is an estimate only and neither the date nor time of delivery is of the essence. We shall use all reasonable endeavours to adhere to such date or time but shall not be liable for any delay in delivery of the Product that is caused by a force majeure event (in paragraph 10.7) or your failure to provide to us any instructions that are relevant to the delivery of the Products.
3.4 If any one order for Products,
(a) has a total value of US$2,000 or under, or
(b) contains fewer than ten (10) cartons, we reserve the right to change the delivery method of that order to delivery via a courier. Wherever we use a courier as the delivery method we reserve the right to charge a handling fee of up to US$150
3.5 If you fail to take delivery of the Products at the time and place stated by us for delivery, then in addition to any other right or remedy available to us, we may
(a) store the Products until actual delivery and charge you for the reasonable costs (including insurance) of storage; and/or
(b) sell the Products to someone else at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge you for any shortfall below the price payable by you for those Products under the Contract.
3.6 We may deliver Products in instalments, and in any sequence. You will not be entitled to reject any Products by reason of any failure on our part to effect delivery of one or more instalments.
3.7 You must notify us within 14 days of delivery, if the Products delivered do not comply with the terms of the Contract, or there is a shortfall in Products delivered. Otherwise, you will be deemed to have accepted the Products (without prejudice to your rights under the warranties in paragraph 9 below).
3.8 You must comply with all export control laws and regulations applicable to the Products, and in particular must not export the Products or any parts thereof or any technical data pertaining to them without obtaining all of the applicable licences, authorisations and regulatory approvals. You shall indemnify us and hold us harmless from and against all actions, claims, losses, costs, damages and expenses whatsoever arising out of or in connection with your failure to comply with this paragraph3.7.
3.9 You must not use the Products, or sell the Products for use in, any aircraft or spacecraft, or in any military or naval missile, or in any guidance or control or air traffic control system relating to any aircraft, spacecraft, military or naval missile. You shall indemnify us and hold us harmless from and against all actions, claims, losses, costs, damages and expenses whatsoever arising out of or in connection with your failure to comply with this paragraph 3.8.
4.1 Risk of damage to or loss of the Products shall pass to you when the Products are delivered to you, whether in accordance with paragraph 3.2 above or in such other manner as we may have agreed in writing.
4.2 Notwithstanding the passing of risk, we shall retain absolute title to the Products until we have received payment in full of all sums due for them, and all other sums due from you to us under whatever agreement or arrangement. At that time, title to Hardware comprised in the Products shall pass to you. However, title to and all other rights in and to any Software comprised in the Products shall at all times remain with us or our licensors (such Software is never sold, only licensed).
4.3 Until title in the Hardware has passed to you, you shall be in possession of the Products as a bailee of the Products for us and shall store them, in a safe place, insured for their full replacement value, separately from any goods belonging to you or to any third party, clearly marked and identifiable as being our property; and you shall not sell or otherwise dispose of or charge or pledge such Products. We shall be entitled to enter any premises where we believe any such Products to be, upon reasonable notice, to verify your compliance with this paragraph.
4.4 If you fail to set up a letter of credit on time or to make any payment to us when due, or if any event as referred to in paragraph 10.1 occurs in relation to you, or if the Contract is terminated before title in the Hardware has passed to you, then we shall have the right, in addition to any other rights or remedies, to enter without prior notice any premises where we believe the Products owned by us may be, and to repossess and dispose of those Products without restriction.
5.1 We shall supply the Services to you in accordance with the Contract in all material respects.
5.2 We shall use all reasonable endeavours to meet any performance dates we agree for the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
6.1 The price for the Products shall be that which we quoted (including associated delivery costs which will normally be on the basis set out in clause 3.1 and, if applicable, clause 3.4) or have otherwise agreed in writing with you.
6.2 Except as we may have expressly otherwise agreed in writing, all prices for Products (a) exclude Value Added Tax which, if lawfully chargeable, you shall pay in addition at the rate required by law and (b) exclude all costs of transport, insurance and any export or import tax or duty that we have not expressly agreed in writing to bear, all of which you must bear
6.3 Except as we may have expressly otherwise agreed in writing, you shall pay the full price for the Products in the following instalments:
6.3.1 For orders over US$2,000 total value:
(a) 50% immediately following our acceptance of your order for the Products; and
(b) 50% when we notify you that the Products are available for delivery
6.3.2 For orders of no more than US$2,000 total value, 100% immediately following our acceptance of your order for the Products.
6.4 You shall pay for the Products by a method reasonably acceptable to us and, if we request, shall, within such period as we may stipulate, secure payment by way of a stand-by letter of credit in a form and with a bank acceptable to us.
6.5 You shall promptly pay all sums due under the Contract, in the currency in which we have stated the price, without any deduction, set-off, counterclaim or withholding whatsoever.
6.6 Time for setting up a letter of credit under paragraph 6.4, and time for payment of any sum due under the Contract, shall both be of the essence and if you fail to comply with these requirements in any respect we may, in addition to any other right or remedy:
(a) charge you interest (running before and after judgement) on all overdue sums at the rate of 4% above the base rate of Barclays Bank Plc from time to time, such interest to accrue daily but be charged monthly and compounded until payment of the overdue amount in full together with such interest; and/or
(b) suspend further performance of the Contract and of any other agreement or arrangement that we have with you, until you have rectified the default; and/or
(c) treat the Contract as repudiated and act accordingly. In any event, you shall upon demand reimburse us all costs (including legal costs on a full indemnity basis) and expenses that we incur in connection with recovering or seeking to recover any sum due.
6.7 We reserve the right to increase the charges for the Services on an annual basis with effect from each anniversary of the date of the Contract in line with the percentage increase in the Retail Prices Index in the preceding 12-month period.
6.8 You acknowledge and agree that we have the right to adjust the price of the Products in any Contract, acting reasonably and upon giving notice to you, in the exceptional circumstances in which we suffer an increase in the costs incurred by us in performing the agreement, which shall include the costs of any raw materials or components used by us to manufacture the Products, such price change to take effect automatically and to apply to any order for Products placed in accordance with these Conditions.
7.1 All rights in inventions, patent rights, copyright, rights in designs, rights in trademarks and other intellectual property rights whatsoever subsisting in or in relation to the Products are and shall remain our property or the property of our licensors, and nothing in the Contract shall transfer to you any right, title or interest in or to any such intellectual property rights. All rights not expressly granted to you are reserved to us.
7.2 By purchasing and paying for the Products in full in accordance with the Contract you shall acquire only a royalty free, non-exclusive, non-transferable licence of such of the intellectual property rights referred to in paragraph 7.1 as is strictly necessary for you to:
(a) use the Products for the purpose for which they are designed and intended by us, in accordance with their accompanying instructions for use. Without limiting the scope of the immediately preceding sentence:
(i) you must only use, as part of or in conjunction with such Products, such Software as is stated in paragraph 7.3; and
(ii) your use of any Software supplied under this Contract shall be subject to the additional terms stated in paragraph 7.3.
(b) supply the Products on to third parties (other than end users) upon terms permitting them to use the Products strictly in accordance with (a) above and to supply them on to others (other than end users) in accordance with this paragraph (b)
(c) supply the Products to end users or permit the third parties referred to in (b) above to supply the Products to end users, subject to the additional conditions set out in paragraph 7.4
(d) install and use the Software on your network as necessary to support the above use of Products.
7.3 Without limiting the scope of paragraph 7.2:
(a) unless otherwise agreed by us in writing, you may only use and permit use of the following Software comprised in or made available for use as part of the Products, namely:
(i) the Software comprised in the Products supplied to you under the Contract or in writing specified by us as the Software to be loaded onto the Products (in either case, "Agreed Software"); and/or
(ii) such release(s) of the Agreed Software as we may in our absolute discretion make available to you or make generally available by way of download designated by us as a "maintenance release" of the Agreed Software within the 90 day warranty period referred to in paragraph 9.1(b)
(b) such Software must be used only as a component part of and for the purpose of normal use of the Products, but not as a standalone software product
(c) you may not make additional copies of such Software for use as part of or in conjunction with any units of Product other than those in respect of which we have made such Software available to you
(d) such Software must not be extracted or removed from any ROM or flash memory in which it is supplied
(e) except if and to the extent that such acts cannot lawfully be prohibited, such Software must not be disassembled, decompiled or otherwise reverse engineered
(f) you have no right to use, incorporate into other products, copy, publish, display, modify or translate the Software or any modification, adaptation or copy of the Software or any part thereof(except insofar as these things may occur in and be necessary for normal use of the Products)
(g) you shall not use the Software to manufacture or distribute a product that is substantially similar to or competitive with our Products.
7.4 You shall ensure that any access to and/or use of the Software by end users (whether granted directly by you or by one of the third parties referred to in paragraph 7.3(b)) is only provided on terms consistent with the following:
(a) the end user shall only acquire a non-exclusive, non-transferable, non-sublicensable licence to the extent strictly necessary for the end user to use the Products for the purpose for which they are designed and intended, in accordance with their accompanying instructions for use;
(b) title to the Software shall not transferto the end user, it shall at all times remain with us or our licensors
(c) the restrictions set out in paragraphs 7.3(b)-(f) shall apply;
(d) you have a right to terminate the end users access/usage rights if the end user breaches the above terms; and
(e) we shall not have any direct relationship with or liability to end users by virtue of such licence.
7.5 You shall keep true and accurate records of all matters relevant to checking compliance with paragraphs 7.2, 7.3 and 7.4 and shall upon request by us provide copies of such records or allow us ourselves or by our agent to inspect them, and shall promptly reimburse us the cost of carrying out any examination or inspection of such copies or the original records in the event that any non-compliance is so revealed, and shall also upon demand pay us at our standard rates then in force for the unlicensed use of Software so revealed. You shall in addition indemnify us and hold us harmless from and against all actions, claims, losses, costs, damages and expenses whatsoever arising out of or in connection with any breach by you of paragraphs 7.2, 7.3 and/or 7.4, or any act by any person who obtains the Products directly or indirectly from you, which is inconsistent with paragraphs7.2, 7.3 and/or 7.4.
8.1 You shall:
(a) ensure that the terms of the order arecomplete and accurate;
(b) co-operate with us in all mattersrelating to the Services;
(c) provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as reasonably required by us to provide the Services;
(d) provide us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
8.2 If our performance of any of our obligations under the Contract is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (“Your Default”):
(a) without limiting or affecting any other right or remedy available to it, we shall have the right to suspend further performance of the Contract until you remedy Your Default, and to rely on Your Default to relieve us from the performance of any of our obligations in each case to the extent Your Default prevents or delays our performance of any of our obligations
(b) we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this paragraph
(c) you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from Your Default.
9.1 Each party (i.e. you and we) shall keep confidential all information obtained from the other, whether pursuant to the Contract or prior to and in contemplation of it, and all other information that it may acquire from the other in the course of the Contract, and shall use such information exclusively for the purposes of or as contemplated by the Contract, and shall disclose such information only to those of its employees, agents and sub-contractors (if any) pursuant to the Contract to whom and to the extent that such disclosure is reasonably necessary for the purposes of or as contemplated by the Contract. However, this paragraph shall not apply to information which:
(a) prior to receipt thereof from one party was in the possession of the other without any restriction on its disclosure or use; or
(b) is subsequently disclosed to the recipient party without any obligations of confidence by a third party who has not derived it directly or indirectly from the other party; or
(c) is or becomes generally available to the public through no act or default of the recipient party; or
(d) is required by law or by any competent authority to be disclosed (but only to the extent that such disclosure is so required, and provided the recipient party shall upon becoming aware of such requirement promptly notify the other there of in writing and shall provide reasonable assistance to the other in taking any lawful steps to try and prevent or limit the disclosure).
9.2 We shall be entitled, for the purposes of our own publicity, to name you as a customer of ours, and to disclose the nature of the Products and Services supplied by us to you.
10.1 We warrant that:
(a) the Hardware will:
(i) subject to paragraph 3.6, conform in all material respects with its technical specification; and
(ii) be free from material defects in materials and workmanship, for a period of 24 months from delivery
(b) the Software will for a period of 90days from delivery, when properly used in accordance with the Contract and the instructions accompanying the Products, conform in all material respects with our published specification for it or any other specification for such Software that we have agreed in writing with you. However, in any case where paragraphs7.2, 7.3 and/or 7.4 have not been complied with in full and/or any software(e.g. an update or different version of software licensed from a third party comprised in the Agreed Software) has been obtained from someone other than us, we can no longer have any responsibility in respect of performance of any Software, and this warranty shall no longer apply. Furthermore, this warranty shall not apply to any Software which we provide to you for evaluation purposes (such Software being supplied “as-is”)
(c) we will perform the Services with reasonable care and skill. This warranty shall be deemed to apply in respect of particular Services for a period of 30 days from the date we deliver to you the results of those Services.
10.2 In the case of any breach of a warranty in paragraph 10.1 which you notify to us in writing within the period for which the warranty applies, and provided that if required by us you first at your risk and cost return to us any non-compliant Products and any deliverables("Deliverables") arising from non-compliant Services, we shall as soon as reasonably practicable use all reasonable endeavours to render such Products or Deliverables in accordance with the applicable warranty, or shall at our option replace the Products or Deliverables with the same or similar Products or Deliverables (the specification for which may have been updated),and shall at our cost but your risk return the Products or Deliverables to you. This is your only remedy for breach of any warranty. Further, we shall be under no liability under any of the warranties in paragraph 10.1 in respect of any Products or Deliverables:
(a) that have been mistreated or have been moved, stored, altered, repaired; installed or used in any manner other than in strict compliance with any user manual or instructions issued by us;
(b) where the defect has arisen as a result of fair wear and tear, wilful damage, negligence or abnormal working conditions; or
(c) the Hardware differs from its technical specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
10.3 We warrant that so far as we are aware(without being obliged to carry out any patent or other searches or enquiries in addition to those that we have carried out prior to entering into the Contract) the importation, possession, sale and use of the Products and any Deliverables will not result in the infringement of the intellectual property rights of any third party. However, subject to breach of such warranty, we shall not be liable to you, for breach of contract or on any other theory of liability, if any person alleges or shows that such importation, possession, sale or use infringes the intellectual property rights of a third party. Nevertheless, if any person claims to you that any Products or Deliverables or any possession, dealing in or use of any Products or Deliverables infringes the intellectual property rights of any person, and provided you notify us immediately in writing and give to us all cooperation in relation to the claim that we require, we shall use our reasonable endeavours at our cost to
(a) procure the necessary licences to avoid the alleged infringement, or
(b) modify the Products or Deliverables to avoid the alleged infringement, and without material reduction in functionality, or
(c) replace the Products or Deliverables with Products or Deliverables that avoid the alleged infringement and have materially the same or enhanced functionality, or
(d) if we believe that none of (a), (b) or(c) is reasonably practicable, or if we so prefer, and following your return to us of such Products or Deliverables, refund to you the price you paid us for the Products, or for the Services producing the Deliverables, that are the subject of the claim.
10.4 Neither you nor we exclude or limit our liability for death or injury arising from our negligence, or for fraud or wilful default or otherwise insofar as any exclusion or limitation of liability is prohibited, void or unenforceable by law. SUBJECT TO THE ABOVE AND PARAGRAPH 10.5, OUR LIABILITY TO YOU FOR ANY LOSS OR DAMAGE ARISING OUT OF OR INCONNECTION WITH THES CONTRACT SHALL BE LIMITED IN RESPECT OF ALL CLAIMS TO THEPRICE PAID BY LICENSEE FOR THE PRODUCTS UNDER THE RELEVANT CONTRACT. All other provisions of the Contract shall be read subject to this paragraph.
10.5 Subject to paragraphs 10.1 and 10.3, we give no warranty and make no representation as to the condition, performance, quality or functionality of the Products or Deliverables, or as to the quality or standard of any Services, and all warranties, representations, terms and conditions that would otherwise be implied by law (including any warranty as to merchantability, satisfactory quality, fitness for purpose, correspondence with sample or otherwise) are hereby excluded to the fullest extent permitted bylaw.
10.6 Subject to paragraph 10.4, in no circumstances shall we be liable to you, for breach of contract or on any other theory of liability, for any loss of profit, business, revenue, goodwill or anticipated savings, or for any special, exemplary or consequential loss or damage or other financial loss whatsoever arising out of or in connection with the Contract or the supply of the Products or Services or Deliverables or their use or resale by you or any other person.
10.7 We shall not be in breach of the Contract, nor liable to you, due to any delay or failure by us to perform any of our obligations under the Contract where such delay or failure is caused by accident, illness, failure by any sub-contractor to perform, or by any other event or circumstance beyond our reasonable control. We shall however use all reasonable endeavours to overcome the difficulty and continue to perform our obligations.
10.8 The Conditions shall apply to any repaired or replacement Products supplied by us.
11.1 “Data Protection Legislation” means any applicable laws relating to the protection of personal data and the privacy of individuals; and “processing” has the meaning set out in the Data Protection Legislation.
11.2 Where any personal data (as defined in the Data Protection Legislation) is processed by either party under this Contract(“Personal Data”), the parties acknowledge that such party shall be a controller in respect of the Personal Data and shall be responsible for its own compliance with the Data Protection Legislation; subject that where the Personal Data of the end user of any Products is processed, You shall be the Controller and shall be so responsible.
12.1 Either party (you or we) may terminate the Contract by giving to the other written notice of termination having immediate effect if the other commits a material breach of the Contract and fails to remedy that breach within 28 days of being given a written notice identifying the breach and requiring it to be remedied, or if the other party passes are solution for winding up, or a court makes an order for it to be wound up, or if it has a receiver or administrative receiver appointed over any part of its undertaking or assets, or if it compounds with or attempts to compound with its creditors, or on the happening in relation to the other party of any event equivalent to any of the above events, under any foreign jurisdiction. Without limiting the scope of this paragraph, a breach by you of any of paragraphs 3.7,4.3, 6.3, 6.4, 6.5, 7, 9 and 13.1 shall be deemed to be a material breach of the Contract.
12.2 The right to terminate the Contract shall be without prejudice to any other right or remedy of the party terminating, and termination of the Contract shall be without prejudice to the rights of either party accrued prior to termination. The following paragraphs shall survive termination: 1, 6.1-6.6, 7 (in respect of any Products delivered prior to termination), 9, 10.4-10.7, 12.2 and 13.
12.3 Without limiting the scope of paragraph12.2, you shall forth with following any termination of the Contract pay to us all sums due under the Contract in respect of Products delivered and Services supplied to you.
13.1 You shall not assign any of your rights or obligations under the Contract without our prior written consent, which shall not be unreasonably withheld. We may assign all of our rights and obligations under the Contract to any person, firm, company or other organisation. The Contract shall continue in force for the benefit of, and shall bind, the permitted assignee of either party.
13.2 The Contract does not create any partnership, agency or further relationship between you and us and does not oblige either you or us to negotiate or enter into any further contract with the other.
13.3 The Contract contains the entire agreement and understanding between you and us in relation to its subject matter and supersedes all prior agreements, understandings or arrangements between us, whether oral or in writing, in respect of the subject matter of the Contract.
13.4 Paragraphs 7 and 9 of the Contract shall beenforceable against you by any owner of any intellectual property rights inProducts who is also our licensor (whether directly or indirectly) in respectof those intellectual property rights. Subject to that, the Contract is notintended to confer a benefit on any third party, and no third party shall beentitled to enforce any provision of it or to claim any other benefit under it.
13.5 No delay or failure on our part to exercise any right or remedy available to us under or in connection with the Contract shall prevent the later exercise of any such right or remedy.
13.6 Any notice given under the Contract shall be in writing and service thereof shall be effected either by fax, registered or recorded delivery post or hand delivery. The address for service shall be the address of the addressee used or referred to in the Contract or such other address as the addressee shall have nominated by notice in writing in accordance with this paragraph. Any notice served by fax, with transmission confirmed, shall be deemed to have been served within one hour of the time of despatch. Any notice served by post as above or by hand delivery shall be deemed to have been served at the time of receipt.
13.7 If the whole or any part of any provision of the Contract is determined to be invalid or unenforceable then such provision or part thereof shall be severed from the body of the Contract which shall continue to be valid and enforceable to the fullest extent permitted bylaw.
13.8 In these Conditions and every proposal, quotation, order and Contract to which they apply: headings are for convenience only and shall not affect interpretation; the singular includes the plural and vice versa; references to paragraphs are to paragraphs in these Conditions; "person" includes natural persons, bodies corporate and any entity having separate identity; and any list of particular items or matters used in conjunction with general wording covering those items or matters shall not limit that general wording.
13.9 The Contract and any dispute or claim (including non-contractual disputes and claims) shall be governed and construed in all respects according to English law, and you and we hereby submit to the non-exclusive jurisdiction of the English courts in respect of any dispute or claim (including non-contractual disputes and claims) arising out of or in connection with the Contract or its subject matter or formation.
