APPLICATION

1. These “General Terms and Conditions of Sale” (“GTCS”) apply to all contracts of sale of goods between (i) Hive Media Control Ltd and, where applicable, any of its subsidiaries (together, “Hive Media Control Ltd”) and (ii) the customer (“Customer”) other than in respect of goods and/or services purchased on Hive Media Control Ltd’s website where such other terms shall apply as Hive Media Control Ltd determines from time to time. No deviation from or amendment to the GTCS shall be binding on Hive Media Control Ltd unless agreed in writing between Hive Media Control Ltd and the Customer. Hive Media Control Ltd and the Customer may also be referred to as a “Party” or collectively as the “Parties”. The term “goods” shall mean any goods ordered by the Customer from Hive Media Control Ltd pursuant to the provision of the GTCS.

2. Any terms and conditions contained in or delivered with the Customer’s order or other document or any which are implied by trade, custom, practice or course of dealing shall not be binding, and the Customer waives any right, which it otherwise might have to rely on such terms and conditions.

QUOTATIONS, ORDERS AND ORDER CONFIRMATIONS

3. Hive Media Control Ltd may provide a quotation to a Customer upon request and such quotation may be delivered to the Customer by email (“Quotation”). Quotations are only valid for 30 days from the date of the Quotation unless otherwise specified by Hive Media Control Ltd from time to time. A Quotation shall not constitute an offer.

4. The Customer may place any order(s) by email to Hive Media Control Ltd in respect of such Quotation in accordance with clause 3 and Hive Media Control Ltd shall, if accepted by Hive Media Control Ltd in accordance with clause 5, provide the goods to the Customer as per the details (including price) contained in such Quotation (save for manifest error) in accordance with the GTCS.

5. An order shall only be deemed accepted if Hive Media Control Ltd’s sales team department issues written confirmation of the acceptance of such order(s) to the Customer within 15 business days of the date of receipt of such order(s) (“Invoice”). The contract for the sale and purchase of the goods pursuant to the Invoice shall only come into existence at the point when such Invoice is issued or given  by Hive Media Control Ltd to the Customer. 

6. If the terms and conditions in Hive Media Control Ltd’s Invoice deviate from the Customer’s order(s) and the Customer wants to reject such deviation(s), the Customer must notify Hive Media Control Ltd’s sales team department in writing by email to that effect at the earlier of either of the following: (i) within 5 business days of the date of receipt of the Invoice, and (ii) prior to the packaging date of the goods, failing which the Customer shall be deemed to have accepted the terms and conditions set out in the original Quote and Invoice.

DELIVERY, TRANSFER OF RISKS

7. The Invoice shall state whether the method of delivery is “Collection” or “Delivery to Customer”, and the date or dates for delivery (the “Delivery Date(s)”).

8. Where the method of delivery is Collection:

1. a) the Customer or their nominated courier or agent shall collect the goods from the location or locations specified in the Invoice (“Collection Location”) on the Delivery Date(s), or otherwise within three days of Hive Media Control Ltd notifying the Customer that the goods are ready;

11. b) Delivery is completed on the completion of loading of the goods at the Collection Location, subject to clause 11. 

9. Where the method of delivery is Delivery to Customer:

1. a) Hive Media Control Ltd shall arrange for a carrier to deliver the goods to the location set out in the Invoice or such other location as the parties may agree (the “Delivery Location”) on the Delivery Date(s);

1. b) The Customer is responsible for the costs of any carrier procured by Hive Media Control Ltd;

11. c) Delivery is completed on the completion of unloading of the goods at the Delivery Location, subject to clause 11.

10. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Hive Media Control Ltd shall not be liable for any delay in delivery of the goods that is caused by a Force Majeure Event (as defined in clause 49) or the Customer’s failure to provide Hive Media Control Ltd with adequate delivery instructions or any other instructions that are relevant to the supply of the goods.

11. If the Customer fails to take or accept delivery on the Delivery Date (“Customer Acceptance Failure”) then delivery is deemed to have occurred on the Delivery Date. The Customer shall be liable for payment, if applicable, for the cost of storage of these goods at Hive Media Control Ltd’s warehouse or courier’s warehouse, and for any other reasonable costs or expenses, incurred by Hive Media Control Ltd, due to the Customer Acceptance Failure, and Hive Media Control Ltd reserves the right to sell the goods to a third party and to claim damages against the Customer for loss of profit and any costs incurred by the Customer Acceptance Failure.

12. Risk in the goods passes to the Customer as follows:

1. a) where the method of delivery is “Collection”, on completion of delivery

1. b) where the method of delivery is “Delivery to the Customer”, at the point at which the goods are handed to the courier.

13. The Customer is responsible for, and must pay: (i) all costs relating to the goods from the time of deemed delivery in accordance with clause 8 or clause 9, as applicable; (ii) all duties taxes, levies and other customs charges, as well as the costs of carrying out any customs formalities payable upon import and/or export; and (iii) the reimbursement of all costs and charges incurred by Hive Media Control Ltd in assisting the Customer to obtain any export licence or other official authorisation for the export of the goods.

14. If the goods are transported from Hive Media Control Ltd’s warehouse by any carrier (whether organised by Hive Media Control Ltd or the Customer), the Customer must, when the goods arrive at the destination, in order to get the goods released by the carrier sign the accompanying delivery note. If any goods are visibly damaged, the Customer must give details thereof on the delivery note and must file a claim with the carrier and with Hive Media Control Ltd in writing via email to Hive Media Control Ltd sales team department within 24 hours, failing which the Customer shall be deemed to have waived any rights which the Customer might have in respect of the damaged goods.

15. The Customer must thoroughly examine all goods immediately upon receipt for the purpose of ascertaining whether the goods are defective or inconsistent with the data in the Invoice (the “Examination”). The Customer shall be deemed to have accepted the goods in respect of inconsistency with the specification in the Invoice, which the Customer discovered or ought to have discovered during the Examination, if the Customer has not notified Hive Media Control Ltd’s sales team department to the contrary in writing via email within 5 business days after delivery.

DELIVERY DELAY

16. Should Hive Media Control Ltd not be able to deliver by the Delivery Date, Hive Media Control Ltd shall as soon as possible notify the Customer to that effect and at the same time state when delivery is expected to take place. If delivery is expected to take place more than, or has not taken place within, 14 business days after the Delivery Date, and the delay is caused by circumstances for which Hive Media Control Ltd is responsible, the Customer shall be entitled to reject the goods by notifying Hive Media Control Ltd sales team department to that effect in writing via email within 3 business days after receipt of Hive Media Control Ltd’s notification or the expiration of the 14 business days, whichever comes first, failing which notification by the Customer, the Customer shall be deemed to have waived the right to reject the goods. Except as stated in this clause 16, the Customer is not entitled to raise any other claims in the event of delayed delivery, whether claims for damages based on contract/negligent acts/omissions or otherwise. Any liability for delay or failure to deliver to the Customer shall not exceed the cost of the goods to Hive Media Control Ltd.

WARRANTY, PRODUCT LIABILITY

17. Subject to clauses 18-26, Hive Media Control Ltd warrants the following: 

17. a) All finished hardware goods manufactured by Hive Media Control Ltd will be free from defects in materials and workmanship under normal use of the goods in the industry for a period of 12 months from the Delivery Date, whilst accessories, spare parts, goods will be free from defects in materials and workmanship under normal use of the spare parts in the industry for a period of 12 months from the Delivery Date. Hive Media Control Ltd warrants to be able to deliver spare parts only during the warranty terms of the finished goods stated in this clause 17. 

1. b) All certified pre-owned goods will be free from defects in materials and workmanship under normal use of the goods in the industry for a period of 90 days from the Delivery Date. 

18. Any warranty claim by Customer based on any defect in finished goods or spare parts, which defect the Customer discovered or ought to have discovered during the Examination, shall be notified in writing via email to Hive Media Control Ltd within 5 business days after the delivery time as stated in the Order Acknowledgement or, where the defect could not reasonably have been discovered during the Examination within 7 business days after manifestation of the defect, failing which the Customer shall be deemed to have accepted the finished goods or spare parts as non-defective. Warranty claims notified by the Customer to Hive Media Control Ltd after the expiration of the warranty terms stated in in the GTCS are not accepted.

19. Where any valid warranty claim is notified to Hive Media Control Ltd in accordance with the terms of clause 18 and approved by Hive Media Control Ltd in writing (which approval shall not be unreasonably withheld), Hive Media Control Ltd shall be entitled to fulfill its warranty obligations as follows: (i) If the Customer can be reasonably expected to be able to repair the defect, if necessary with support from Hive Media Control Ltd’s Technical Support and Service department, Hive Media Control Ltd may fulfill its warranty obligations by sending the necessary replacement parts to Customer free of charge (ii) If the Customer cannot reasonably be expected to be able to repair the defect, Hive Media Control Ltd shall repair or replace the defective finished goods or spare parts, subject to the Customer (a) assigning to Hive Media Control Ltd all property rights to such redundant finished goods or spare parts and (b) complying, if applicable, with any reasonable request by Hive Media Control Ltd for the Customer to return the goods and/or parts in question to Hive Media Control Ltd. Any replacement goods or spare parts will be a) equivalent or substantially similar to the finished goods or spare parts and b) new, equivalent to new or reconditioned; or (iii) If none of the foregoing remedies are commercially viable in Hive Media Control Ltd’s sole judgement, Hive Media Control Ltd may opt instead to refund to Customer the net purchase price paid by Customer for the defective finished goods or spare parts less reasonable depreciation of the value due to use or age, subject to the Customer assigning to Hive Media Control Ltd all property rights to such finished goods or spare parts. The Customer shall have no right to use, modify or sell any redundant finished goods or spare parts that have been replaced (“Redundant Item”). The Customer shall communicate with Hive Media Control Ltd’s sales team to seek direction as to how to deal with any such Redundant Item within 10 business days of the Redundant Item being replaced. The Customer shall at the direction of Hive Media Control Ltd either (i) return to Hive Media Control Ltd any Redundant Item; or (ii) or destroy the same. The Customer shall not return such Redundant Item to Hive Media Control Ltd, unless Hive Media Control Ltd has authorised the return in writing. The Customer shall assume responsibility (including all costs and expenses) for shipment, freight and adequate freight insurance back to a Hive Media Control Ltd certified service centre. Hive Media Control Ltd shall only assume responsibility for shipment and expense for freight and freight insurance back to the customers registered address in country of origin of the warranty claim, unless the warranty claim is not valid in Hive Media Control Ltd’s reasonable judgement and Customer shall assume all responsibility and expense for dismantling, removal, re-installation and duties in connection with the foregoing. Repair or replacement under the warranties contained herein does not interrupt or extend the warranty terms stated in clause 17. 

20. The warranties contained herein shall not extend to any finished goods or spare parts from which any serial number has been removed or which have been damaged or rendered defective (a) as a result of normal wear and tear, willful or accidental damage, negligence, misuse or abuse; (b) due to water or moisture, lightning, windstorm, abnormal voltage, harmonic distortion, dust, dirt, corrosion or other external causes; (c) by operation outside the specifications contained in the user documentation; (d) by the use of spare parts not manufactured or sold by Hive Media Control Ltd or by the connection or integration of other equipment or software not approved by Hive Media Control Ltd unless the Customer provides acceptable proof to Hive Media Control Ltd that the defect or damage was not caused by the above; (e) by modification, repair or service by anyone other than Hive Media Control Ltd, who has not applied for and been approved by Hive Media Control Ltd to do such modification, repair or service unless the Customer provides acceptable proof to Hive Media Control Ltd that the defect or damage was not caused by the above; (f) due to procedures, deviating from procedures specified by Hive Media Control Ltd; or (g) due to failure to store, move, transport, install, test, commission, maintain, operate or use finished goods or spare parts in accordance with Hive Media Control Ltd’s instructions and training, in a safe and reasonable manner or in a manner that does not provide at least the degree of protection afforded by Hive Media Control Ltd branded storage, transportation and installation equipment, including but not limited to transportation cases and folding transportable rigs, in terms of shock absorption and protection from vibration for the product and all its components, impact protection, ingress protection, protection from unfavorable environmental conditions, thermal insulation and strength. All approvals and certifications related to goods are related to a single product and not a group of products used together. 

21. None of the warranties contained herein shall apply to finished goods or spare parts which are sold “as is”, as “second-hand”, as “used”, as “demo” or under similar qualifications or to Consumables as defined in clause 22.

22. “Consumables” is defined as any part(s) of goods or part(s) for use with goods, which part(s) of goods or part(s) for use with goods are consumed during the operation of the goods and which part(s) of goods or part(s) for use with goods require replacement from time to time by a user such as, but not limited to, light bulbs and smoke fluid. Hive Media Control Ltd will provide information on Consumables when requested to do so by Customer.

23. None of the warranties contained herein shall apply, unless the total purchase price for the defective finished goods or spare parts has been paid by the Customer to Hive Media Control Ltd by the due date for payment in accordance with the GTCS.

24. The Customer shall have no other remedies in connection with defective finished goods or spare parts than the rights granted pursuant to clauses 17-23. Except as set forth in the express warranties contained herein, Hive Media Control Ltd makes no conditions, warranties, representations, express or implied, in fact or in law, including, but not limited to, any warranties of satisfactory quality, merchantability or fitness for a particular purpose or any warranties arising out of usage or trade, all of which are expressly excluded to the fullest extent permissible by applicable law.

25. The warranties contained herein apply only to the original purchaser and are not assignable or transferable to any subsequent purchaser or end-user.

26. To the extent lawful, Hive Media Control Ltd shall only be liable for damage to property and for personal injuries caused as a consequence of defects in the finished goods or spare parts delivered to the extent that it is documented that such defect arose due to Hive Media Control Ltd’s negligence that could not have been prevented by the Examination or other examination by the Customer (“Product Liability”).

RETURN OF GOODS, CANCELLATION OF ORDERS

28. Goods may not be returned to Hive Media Control Ltd, unless Hive Media Control Ltd has authorised the return in writing. Where Hive Media Control Ltd has authorised the return of goods, the Customer shall follow the guidelines for returns issued by Hive Media Control Ltd from time to time.

29. Any order(s) placed by the Customer which has been accepted by Hive Media Control Ltd by the issue of an Invoice are binding on the Customer and cannot be cancelled by the Customer unless to the extent that Hive Media Control Ltd agrees in writing. Hive Media Control Ltd therefore retains the right to charge the Customer in full in respect of any Invoice.

PRICE

30. The purchase price as specified in Hive Media Control Ltd’s Quotation is payable according to the payment terms specified in the Quotation. In the absence of payment terms in the Quotation, delivery will, at Hive Media Control Ltd´s sole discretion, only take place against prepayment of the purchase price.

PAYMENT, PAYMENT DELAY

31. The purchase price as specified in Hive Media Control Ltd’s Quotation is payable according to the payment terms specified in the Quotation. In the absence of payment terms in the Quotation, delivery will, at Hive Media Control Ltd´s sole discretion, only take place against prepayment of the purchase price.

32. Hive Media Control Ltd does not commit itself to send statements of account, In the event that Hive Media Control Ltd does not within 30 calendar days of the date of a statement of account receive an objection in writing against its balance, the statement of account shall be deemed to be conclusive evidence of the Customer’s acceptance of the statement of account.

33. In the event that the Customer should remain in arrears with payments to Hive Media Control Ltd for any reason for 10 business days or more, Hive Media Control Ltd shall be entitled to: a) Terminate the Order and/or any other contracts of sale and demand immediate return of all unpaid goods, delivered to the Customer, at the Customer’s expense; b) Suspend delivery of the Order and/or any other contracts of sale for future delivery; c) Keep any Customer property in Hive Media Control Ltd’s possession as a lien against such non-payment; d) Claim interest at the rate of 2% per month or any part thereof, as from the due date and until payment is made; e) Sell the goods to a third party and claim from the Customer damages for any loss suffered; and f) Suspend the Customer’s access to or use of any Software provided with the goods for which there has been no payment, which will result in the relevant goods ceasing to operate correctly or at all. At the reasonable request of the Customer, Hive Media Control Ltd shall in writing inform the Customer of its decision to assert any of the above rights, but shall not be required to give any notice.

34. Hive Media Control Ltd may use all monies received from the Customer towards payment of any part of any debt owing by the Customer at Hive Media Control Ltd’s sole discretion irrespective of any instructions to the contrary by the Customer.

RETENTION OF TITLE

35. Notwithstanding delivery and the passing of risk in the goods, the property rights in the said goods shall pass to the Customer on the later of: (i) completion of delivery in accordance with clause 8 or 9; and (ii) receipt by Hive Media Control Ltd in cash or cleared funds payment in full of the purchase price of the said goods and all other goods agreed to be sold by Hive Media Control Ltd to the Customer for which payment is then due.

36. Until such time as the property rights in the said goods passes to the Customer, the Customer shall hold the said goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as Hive Media Control Ltd’s property, but the Customer may sell or use the goods in the ordinary course of its business.

37. Until such time as the property rights in the said goods passes to the Customer (and provided the said goods are still in existence and have not been resold) Hive Media Control Ltd may at any time require the Customer to deliver up the said goods to Hive Media Control Ltd and if the Customer fails to do so forthwith enter on any premises of the Customer or any third party where the said goods are stored and repossess the said goods

38. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the said goods, which remain the property of Hive Media Control Ltd, but if the Customer does so, all monies owing by the Customer to Hive Media Control Ltd shall (without limiting any other rights or remedy of Hive Media Control Ltd) forthwith become due and payable.

INTELLECTUAL PROPERTY RIGHTS INFRINGEMENTS

39. To the best of Hive Media Control Ltd’s knowledge, goods delivered by Hive Media Control Ltd to the Customer do not infringe any third party intellectual property rights. However, Hive Media Control Ltd does not make any warranty to that effect. Moreover, Hive Media Control Ltd shall have no liability for any claim of infringement, which is based on marketing, distribution or use of the goods other than as authorised by Hive Media Control Ltd and in a manner for which they were designed. In the event that goods or any part(s) thereof are held by a court of competent jurisdiction, not subject to appeal, to infringe a third party’s intellectual property right, Hive Media Control Ltd shall in its sole discretion (a) procure for the Customer and the Customers‘ customers the right to continue to use the goods; (b) replace the goods with non-infringing goods, subject to the Customer assigning all property rights to such goods to Hive Media Control Ltd; (c) modify the goods, or, where modification does not require any special knowledge, provide the Customer with parts enabling it to modify the goods at its own expense, to avoid infringement; or (d) recall the goods. If Hive Media Control Ltd decides to recall the goods then Hive Media Control Ltd shall, if the goods were delivered to the Customer within the immediately preceding one year period, refund the purchase price for the goods to the Customer less a reasonable depreciation due to age, use, and condition, subject to the Customer assigning all property rights to such goods to Hive Media Control Ltd. If the goods were delivered to the Customer before the immediately preceding one year period, Hive Media Control Ltd shall not be obligated to make any refund.

40. The provisions in clause 39 constitute Hive Media Control Ltd’s maximum liability in respect of clause 38 herein, and the Customer shall limit its liability towards its customers accordingly.

LIMITATION OF LIABILITY

41. Nothing in the GTCS shall limit or exclude liability of Hive Media Control Ltd for (i) death or personal injury as a result of Hive Media Control Ltd’s negligence; (ii) fraud or fraudulent misrepresentation; or (iii) anything else that may not be limited or excluded by law.

42. Subject to clause 41, in no event shall Hive Media Control Ltd be liable in tort, contract or otherwise (including negligence) to compensate the Customer for any: (i) business interruption; (ii) loss of profits; (iii) loss of (anticipated) profits; (iv) loss of revenue; (v) loss of business; (vi) loss of contracts; (vii) loss of savings; (viii) loss of (anticipated) savings; (ix) costs of procurement of substitute goods; (x) costs of procurement of substitute services; (xi) special loss; (xii) indirect loss; (xiii) consequential loss; or (xiv) punitive damages.

43. Subject to clause 41, in no event shall Hive Media Control Ltd be liable to compensate the Customer for any contractual liability of the Customer to any third parties.

44. Subject to clause 45, Hive Media Control Ltd’s total liability to the Customer in respect of all other losses arising under or in connection with the GTCS, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amounts received by Hive Media Control Ltd from the Customer pursuant to the Order giving rise to the liability.

45. Hive Media Control Ltd’s total liability specifically in respect of Product Liability only shall in no circumstances exceed £5 million in total.

46. The Customer agrees that, subject to clause 41, Hive Media Control Ltd shall have no liability to any third party who uses the goods (or any part thereof or any service related to such goods) pursuant to any Order Acknowledgement. If Hive Media Control Ltd suffers a loss or any liability towards such third party, except where such loss or liability is caused by the willful default or negligence of Hive Media Control Ltd, then the Customer shall indemnify Hive Media Control Ltd against all such related liabilities, costs, expenses, damages and losses suffered or incurred by Hive Media Control Ltd accordingly (including but not limited to all costs and expenses incurred by Hive Media Control Ltd defending any such claim against such third party).

GENERAL

47. The GTCS and all contracts of sale of goods, including but not limited to, any and all Quotations, between Hive Media Control Ltd and the Customer shall be exclusively governed by and construed in accordance with the laws of the United Kingdom without application of that country’s conflict of law principles (no renvoi). The Parties submit to the exclusive jurisdiction of United Kingdom courts except that Hive Media Control Ltd – at its sole discretion – shall be entitled alternatively to institute legal proceedings against the Customer at courts having jurisdiction over the Customer’s domicile. If a third party files a claim against one of the Parties for damages on product liability or intellectual property rights infringements, this Party shall immediately inform the other Party thereof. The Parties are mutually obliged to let themselves be summoned to appear before a court of justice/arbitration that hears such a claim for damages. The mutual relationship between Hive Media Control Ltd and the Customer shall however be resolved in accordance with the provisions of this clause and the remaining relevant provisions of the GTCS.

48. The invalidity, unenforceability or illegality of any term, condition or stipulation in the GTCS shall not affect the validity, enforceability or legality of the remaining terms, conditions and stipulations of the GTCS.

49. Except as provided herein, any required or permitted notices hereunder must be given in writing at the registered address of each Party, or to such other address as either Party may notify to the other Party by written notice in the manner contemplated herein, by one of the following methods: hand delivery, registered mail, or facsimile.

50. Non-performance of either Party shall be excused to the extent that performance is rendered impossible by: acts of God; severe weather; flood; drought; earthquake; or other natural disaster; epidemic; pandemic; terrorist attack; civil war; civil commotion; riots; war; threat of war; preparation for war; armed conflict; imposition of sanctions; embargo; breaking off of diplomatic relations; nuclear; chemical contamination; biological contamination; sonic boom; any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings; fire; explosion; accident; any labour or trade dispute, strikes, industrial action or lockouts; non-performance by suppliers, carriers or subcontractors; inability to source materials required for the goods; interruption or failure of utility service, for any reason or any other reasons beyond the reasonable control of the non-performing party (“Force Majeure Event”). The non-performing party must notify the other party of the Force Majeure Event and use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligation.

51. The Customer undertakes to Hive Media Control Ltd not at any time to disclose to any person any confidential information in respect of Hive Media Control Ltd (including but not limited to know-how, trade secrets, and any other commercially sensitive information concerning Hive Media Control Ltd) unless (i) required by the law; or (ii) disclosed to the Customer’s employees or consultants subject to the extent that the recipient needs to know such confidential information and that the Customer takes all reasonable steps to make sure that such recipient complies with this confidentiality obligation as though they were a party to the GTCS.

52. Hive Media Control Ltd may publicise, advertise and market any work completed under these GTCS on its website(s), social media site(s), blog(s), in pitches to third parties, in connection with any appropriate industry awards, or in any other manner, as Hive Media Control Ltd may in its sole discretion decide, without the prior written consent of the Customer.