Terms & Conditions of Supply

Definitions

In these Conditions, the following phrases and expressions have the following meanings:

“Confidential Information” means all secret or confidential commercial, financial and technical information, know how, trade secrets, inventions, product design, computer software and other information whatsoever and in whatever form or medium and whether disclosed orally or in writing, together with all reproductions in whatsoever form or medium and any part or parts of it;

“Contract” means the contract made between Tripleplay and the Customer for the supply of the Goods and/or Services which is subject to these Conditions;

“Customer” means the party with whom Tripleplay contracts;

“Goods” means all or any of the goods works and materials to be supplied by Tripleplay to the Customer;

“Insolvency Event” means any one or more of:

a notice being issued to propose a resolution for winding up or dissolution, or such a resolution being passed;

a petition for winding up or an administration or bankruptcy order being presented, or such an order being made;

any steps being taken with a view to a voluntary arrangement or other assignment, composition or arrangement with all or any creditors or any moratorium, readjustment, rescheduling, forgiveness or deferral of all or any indebtedness;

suspension of payments to all or any creditors and/or ceasing business;

an encumbrancer taking possession of all or any assets of a party;

an administrator or receiver being appointed over a party or all or any of its assets;

any action anywhere similar or analogous to any of the foregoing;

the other party having reasonable grounds for believing that any of the foregoing is imminent;

For the avoidance of doubt if any of the foregoing occurs in relation to a partner in any of the parties hereto it will be deemed to occur in relation to that party;

“Intellectual Property” means all patents, trade marks, designs, design rights and copyrights whether registered or not, database rights, know how, Confidential Information and all other intellectual property rights whatsoever and wherever subsisting;

“Returns Number” means the reference number which must be obtained from Tripleplay before any Goods are returned and which must then accompany such returned Goods, in accordance with Condition 6.1.2;

“Services” means any services to be provided by Tripleplay to the Customer;

“Tripleplay” means Tripleplay Services Limited a company incorporated in England and Wales under number 6790418 whose registered office is at Rapier House, 40-46 Lambs Conduit Street, London WC1N 3LJ;

“Working Day” means 09.00am to 05.00pm on any day (other than Saturday) on which clearing banks are open for normal banking business in sterling in the City of London.

2. Basis of contract

2.1 Any quotation will remain open for a maximum period of 30 days from its date. Quotations are not binding and will not be open for acceptance by the Customer. Where Goods are quoted for supply from stock they are quoted subject to being unsold when the Customer’s order is accepted.

2.2 These Conditions will form the terms and conditions of the Contract and will apply to the exclusion of any terms or conditions whether put forward by or on behalf of the Customer in or on its order or otherwise or whether implied by law (insofar as the exclusion of the same is lawful).

2.3 The placing by the Customer of any order will constitute an offer by the Customer. No contract will come into existence unless Tripleplay accepts the Customer’s order in writing. Any order placed by the Customer with any of Tripleplay.s salesmen or other employees or representatives will be subject to written acceptance by Tripleplay.

2.4 No alteration to these Conditions will be effective unless expressly agreed to in writing by a director of Tripleplay.

2.5 Tripleplay will not provide advice or recommendations as to the storage, application or use of the Goods and cannot accept liability for informal conversations and remarks by its employees in that regard.

3. Orders and Specifications

3.1 The Customer will be responsible to Tripleplay for ensuring the accuracy and sufficiency of its order (including of any applicable specification and/or sample). Tripleplay will be entitled to charge the Customer for all costs (and a reasonable element of profit) incurred by it where variations to Goods and/or Services are requested by the Customer and accepted by Tripleplay.

3.2 Where samples are to be supplied by Tripleplay, the Customer will as soon as reasonably practicable after receipt of the same notify Tripleplay that the samples are in all respects satisfactory or of any respect in which the samples are not satisfactory. In default of such notification Tripleplay will be entitled but not bound to proceed in the manufacture of the remainder of the Contract. Tripleplay reserves the right to make any changes to the specification of the Goods or performance of the Services which are required to conform with an applicable safety or other statutory requirement or which do not materially affect the quality or performance of the Goods and/or the Services.

4. Delivery

4.1 Any time quoted by Tripleplay for delivery of all or any of the Goods and/or performance of all or any of the Services is an estimate only and time will not be of the essence. Tripleplay will not be liable for any failure to meet any such estimate, nor for any loss, of whatsoever nature resulting directly or indirectly therefrom.

4.2 Tripleplay reserves the right to deliver all or any of the Goods and/or the Services in advance of the estimated date.

4.3 In the absence of agreement to the contrary delivery of the Goods will be made by the Customer collecting the Goods from Tripleplay.s premises as soon as practicable following notification from Tripleplay that the Goods are ready for collection or, if some other place for delivery is agreed by Tripleplay, by Tripleplay delivering the Goods to that place.

4.4 Tripleplay reserves the right to deliver by instalments and each delivery will constitute a separate contract to which these Conditions will apply. Failure by Tripleplay to deliver any one or more of the instalments or any claim by the Customer in respect of any one or more instalments will not entitle the Customer to treat the Contract as a whole as repudiated.

4.5 Where delivery of the Goods is to be made by Tripleplay in bulk, Tripleplay reserves the right to deliver up to 10 per cent more or less than the quantity ordered, and Tripleplay will charge for the Goods in accordance with the quantity actually delivered.

4.6 If the Customer fails to take delivery of or collect the Goods or fails to give Tripleplay adequate delivery instructions after notification by Tripleplay that the Goods are ready Tripleplay may (without prejudice to its other rights and remedies):

4.6.1 store the Goods (on its own or any third party.s premises) and charge the Customer for its reasonable costs (including without limitation VAT costs of storage, carriage and insurance); and/or

4.6.2 sell the Goods at any time and after deducting all costs and expenses account to the Customer for any excess over the price already paid under the Contract or charge the Customer for any shortfall between the Contract price and such costs and expenses.

4.7 Notification of short delivery (measured by weight or number) or damage in transit must be made in writing to Tripleplay within 5 days of the receipt of the Goods.

4.8 Notification of non-delivery must be made in writing to Tripleplay within 14 days after the date of Tripleplay’s applicable invoice.

4.9 Tripleplay will at its option either make good the whole or part of the price (and where relevant, as a deduction from any part of the price remaining unpaid) or by repair or replacement any such non-delivery short delivery or damage notified in accordance with Condition 4.7 and/or Conditions 4.8 and save as provided in this Condition 4.9 Tripleplay will not be liable for any such non-delivery short delivery or damage in transit nor for any loss, financial or otherwise resulting directly or indirectly therefrom. In no event will Tripleplay be liable to the Customer in connection with any damage or loss in transit where delivery takes place at Tripleplay.s premises.

4.10 All returnable containers and packing materials will be charged for, but credit will be given if these are returned in condition satisfactory to Tripleplay.

5. Description

All descriptive and technical specifications, drawings, catalogues, illustrations and particulars of weight and dimensions supplied by Tripleplay are approximate only and Tripleplay reserves the right without notice to the Customer to make alterations thereto and to supply the Goods so altered in performance of the Contract provided that such alterations do not materially affect the characteristics of the Goods.

6. Cancellation

6.1 Following acceptance by Tripleplay of the Customer’s order, no cancellation and/or suspension, either in whole or in part, may be made by the Customer other than with the prior written consent of a director of Tripleplay and upon terms that:

6.1.1 the Customer will indemnify Tripleplay in full against all loss (including without limitation loss of profit) damages, costs expenses and other liabilities awarded against or incurred by Tripleplay as a result of or in connection with the cancellation;

6.1.2 the Goods returned are accompanied by reference to a Returns Number, are in the exact condition as at the time of delivery by Tripleplay and are appropriately packaged for such return

6.1.3 the Customer will be responsible for the cost of carriage and insurance in respect of such returned Goods and such Goods will remain at the Customer.s risk until actual receipt by Tripleplay;

7. Price

7.1 Subject to prior written agreement to the contrary, Tripleplay will be entitled to invoice the Customer for the price of the Goods and Services on or at any time after Tripleplay has notified the Customer in the case of Goods that they are ready for collection or Tripleplay has tendered delivery of the same and in the case of Services that the same either have been delivered or are ready to be delivered.

7.2 Any price quoted by Tripleplay is based upon costs current as at the date of quotation. The price charged to the Customer under the Contract may be changed to take account of costs current at the date of invoice.

7.3 Payment must be made in sterling and made by way of a cashier’s cheque, telegraphic transfer or BACS payment.

7.4 All charges and expenses referred to in these Conditions are exclusive of VAT or equivalent goods sales tax which will be paid by the Customer at the prevailing rate at the relevant tax point.

7.5 The Customer will make payment in full within 30 days following the date of Tripleplay.s invoice notwithstanding that the delivery may not have taken place and the property in the Goods may not have passed to the Customer.

7.6 If the Customer fails to pay the price for any Goods or Services within 30 days following the date of the invoice, Tripleplay will be entitled (without prejudice to any other right or remedy it may have) to:

7.6.1 cancel or suspend any further delivery to the Customer under any order;

7.6.2 sell or otherwise dispose of any Goods or Services which are the subject of any order by the Customer, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment; and

7.6.3 charge interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc base rate in force from time to time, from the date payment becomes due until actual payment is made (irrespective of whether payment is made before or after any judgment or award in respect of the same).

7.7 The Customer will not be entitled to setoff any alleged amount owed to it by Tripleplay against any amount it owes under these Conditions, or withhold payment thereof for any reason.

7.8 Where payment is agreed to be made by instalments, any delay or default by the Customer in making payment in respect of any one instalment will render all the remaining instalments due forthwith, and interest will be charged in accordance with Condition 7.6.3 with immediate effect until the date of actual payment.

7.9 Tripleplay may appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between Tripleplay and the Customer) as Tripleplay may think fit (notwithstanding any purported appropriation by the Customer).

8. Risk and title

8.1 Risk in the Goods will pass to the Customer immediately upon delivery to the Customer or into custody on the Customer.s behalf whichever is the sooner.

8.2 Notwithstanding delivery and the passing of risk, property in and title to the Goods will remain with Tripleplay until Tripleplay has received payment in full of the price of:

8.2.1 all Goods and/or Services the subject of the Contract; and

8.2.2 all other goods and/or services supplied by Tripleplay to the Customer under any other contract whatsoever.

8.3 Until property in and title to the Goods passes to the Customer:

8.3.1 the Customer will keep the Goods properly stored, protected and insured and separate from all or any other goods whether belonging to Tripleplay the Customer or any third party;

8.3.2 Tripleplay will be entitled at any time forthwith to revoke the Customer’s power to deal with the Goods; and it will automatically cease if an Insolvency Event occurs in respect of the Customer; and

8.3.3 the Customer will not make any modification to the Goods or their packaging or alter remove or tamper with any marks, numbers or other means of identification used on or in relation to the Goods.

8.4 Upon termination of the Customer’s power to deal with the Goods, the Customer will place the Goods at the disposal of Tripleplay and Tripleplay and its servants and agents are hereby irrevocably authorised without the need for consent of any third party but using only such force as may be necessary, to enter upon any premises of the Customer or any third party for the purpose of removing the Goods.

8.5 If any of the foregoing provisions of this Condition are held to be invalid or unenforceable such invalidity or unenforceability will not affect the remaining provisions.

9. Termination and suspension

9.1 Without prejudice to any rights and remedies available to it, Tripleplay will be entitled, forthwith on written notice to the Customer either to terminate the Contract wholly or in part and/or any other contract with the Customer or to withhold performance of all or any of its obligations under the Contract and/or any other contract with the Customer (and on the giving of such notice all monies outstanding from the Customer to Tripleplay will become immediately due and payable) if:-

9.1.1 any sum owing to Tripleplay from the Customer on any account whatsoever is unpaid after the due date for payment (in which event Tripleplay will have a general lien for any such sum on all and any property of the Customer in its possession);

9.1.2 an Insolvency Event occurs in respect of the Customer; or

9.1.3 the Customer commits any breach of any contract (including without limitation the Contract) with Tripleplay.

9.2 In the event of a suspension of performance Tripleplay will be entitled, as a condition of resuming performance, to require pre-payment, or such security as it may require.

10. Warranty

10.1 Tripleplay will:

10.1.1 make good at its option by reimbursement of the whole or part of the price (and, where relevant, as a deduction from any part of the price remaining unpaid) or by repair or by replacement:-

10.1.1.1 subject to Condition 5, any failure by the Goods to correspond with their specification at the time of delivery;

10.1.1.2 any defect developing under normal use in the Goods and due solely to faulty design (except where the design is supplied by or on behalf of the Customer) materials and/or workmanship; and

10.1.2 make good by reimbursement of the price or by reperformance of the Services any defective workmanship in the performance of Services; provided that:

10.1.3 any failure to meet the specification is notified in writing to Tripleplay within 14 days from the date of delivery or (where the failure was not apparent on reasonable inspection) within a reasonable time after discovery of the failure and in any event such failure must be notified within 3 months from the date of delivery;

10.1.4 any such defect in design materials workmanship will have appeared within 3 months from the date of delivery and will have been thereupon promptly notified to Tripleplay in writing;

10.1.5 Tripleplay will not be liable in respect of any defect in the Goods arising from any drawings, design or specification supplied by the Customer;

10.1.6 Tripleplay will not be liable in respect of any defect arising from fair wear and tear, or other acts of the Customer including without limitation wilful damage, negligence, lack of proper maintenance or servicing, abnormal working conditions, failure to follow Tripleplay’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without Tripleplay’s approval;

10.1.7 Tripleplay will not be liable until any monies due from the Customer under the Contract have been paid in full;

10.1.8 any Goods alleged to be defective are promptly made available to Tripleplay for inspection and, if so required by Tripleplay, are promptly returned at the Customer’s risk and expense to Tripleplay’s works for inspection; and

10.1.9 the above warranty does not extend to parts, materials or equipment not manufactured by Tripleplay in respect of which the Customer will only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Tripleplay and can be transferred.

10.2 Nothing in this Condition 10 will operate so as to:

10.2.1 exclude Tripleplay’s non-excludable liability in respect of death or personal injury caused by the negligence of Tripleplay its servants or agents;

10.2.2 affect the statutory rights of the Customer where Goods are sold or Services are supplied to a Customer dealing as a consumer within the meaning of Unfair Contract Terms Act;

10.2.3 exclude the application of Section 12 of the Sale of Goods Act 1979; or10.2.4 exclude liability for fraudulent misrepresentation.

10.3 Tripleplay will not be liable to the Customer in contract, tort (including without limitation negligence) and/or breach of statutory duty for any loss or damage which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by Tripleplay its servants or agents, in a sum which is greater than the Contract price.

10.4 Tripleplay will not be liable to the Customer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss of profits and/or loss of production or any indirect or consequential (including economic) loss of any kind which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by Tripleplay, its servants or agents.

11. Health and safety

For the purposes of Section 6(8) of the Health and Safety at Work Etc Act 1974 the Customer undertakes to comply with all instructions relating to the Goods received from Tripleplay from time to time and to take such other steps sufficient to ensure, so far as is reasonably practicable, that the Goods will at all times be safe and without risk to health when being properly used, set, cleaned and maintained by a person at work.

12. Intellectual Property

12.1 The Customer acknowledges that all Intellectual Property rights in the Goods are as between it and Tripleplay, the property of Tripleplay and will remain so at all times.

12.2 The Customer will promptly and fully notify Tripleplay of any actual, threatened or suspected infringement of any Intellectual Property of Tripleplay which comes to the Customer’s notice, and of any claim by any third party that the sale of the Goods infringes any rights of any other person. The Customer will at the request of Tripleplay do all such things as may reasonably be required to assist Tripleplay in taking or resisting any proceedings in relation to any such infringement or claim..

12.3 If the Goods are to be manufactured or any process is to be applied to the Goods by Tripleplay in accordance with a specification submitted by the Customer, the Customer will (without prejudice to the other rights and remedies of Tripleplay) indemnify Tripleplay in full against all loss, costs, damages, charges, expenses and other liabilities awarded against or incurred by Tripleplay as a result of or in connection with:

12.3.1 any claim for infringement of any Intellectual Property right of any other person which results from Tripleplay’s use of the Customer’s specifications;

12.3.2 any other liability of any kind to any third party including without limitation for defective Goods, personal injury or death to the extent that it arises from the specification.

13. Export terms

13.1 Any term or expression which is defined in the provisions of Incoterms 2000 (or any subsequent revision thereof) shall import the respective obligations of Buyer and Seller into these Conditions, but in the event of conflict these Conditions shall prevail.

13.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 13 shall (subject to any special terms agreed in writing between the Company and the Customer) apply not withstanding any other provision of these Conditions.

13.3 Unless otherwise agreed in writing between the Company and the Customer, the Goods shall be delivered within 30 days and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

13.4 The Customer shall be responsible for arranging for testing and inspection of the Goods at the Company’s premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on testing or inspection and which is made after shipment, or in respect of any damage during transit.

13.5 Payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Customer in favour of the Company and confirmed by a bank in United Kingdom acceptable to the Company or, if the Company has agreed in writing on or before acceptance of the Customer’s order to waive this requirement, by acceptance by the Customer and delivery to the Company of a bill of exchange drawn on the Customer payable 30 days after sight to the order of the Company at such branch of Barclays Bank in England as may be specified in the bill of exchange or, by an electronic international bank transfer within the agreed credit terms.

14. Contracts for Services

14.1 Where the Contract is for or to include Services to be performed by Tripleplay:

14.1.1 Tripleplay will only be obliged to carry out Services during normal Working Days and will be entitled to charge for any overtime worked upon request by the Customer.

14.1.2 where the Services are performed at the premises of the Customer, the Customer will provide free of charge:-

14.1.2.1 proper and safe storage and protection of all Goods, tools, plant, equipment and materials on site;

14.1.2.2 free and safe access to the site and place where the Services are to be performed;

14.1.2.3 all facilities and services necessary to enable such Services to be performed safely and expeditiously;

14.1.2.4 if such Services include the installation of Goods, all builders work, foundations and cutting away and making good where necessary; and

14.1.2.5 the availability of all plant and equipment to permit the Goods to be tested upon completion of Services.

14.2 The Customer will pay Tripleplay any expenses incurred by Tripleplay by reason of a breach by the Customer of any of its obligations in this Condition without prejudice to Tripleplay’s right to recover any loss thereby occasioned.

14.3 Goods and Services supplied on the site of the Customer are at all times at the sole risk of the Customer and if any part is lost or destroyed for any reason whatsoever Tripleplay will be entitled to charge as a variation to the Contract for the restoration of such Goods and/or Services. The Customer will for the benefit of itself and Tripleplay insure and keep insured with reputable insurers the full value of Goods and Services against every kind of loss, damage or destruction. The Customer will produce such policy to Tripleplay upon request together with the latest premium receipts and in default of effecting the same Tripleplay will be entitled to do so and add the cost of such insurance to the Contract price.

15. High Risk Applications

15.1 The Goods are not specifically designed, tested, manufactured or intended for operation or use in any inherently dangerous, life endangering or life support applications, including but not limited to nuclear facilities or the flight, navigation or communication of aircraft, ground support equipment or life systems monitoring (“High Risk Use”).

15.2 The Customer represents and warrants that it will not use the Goods for such High Risk Use.

15.3 The Customer agrees that Tripleplay will not be liable in whole or in part, for any claims or damages arising from such High Risk Use.

16. General

16.1 It will be the responsibility of the Customer to ensure that all requirements applicable to the Contract, whether statutory, regulatory, municipal and/or otherwise, (are duly complied with. It will be a condition precedent to the performance by Tripleplay of its obligations under the Contract that all necessary licences, permits and consents have been obtained by the Customer.

16.2 Without prejudice to the generality of Condition 15.1 the obtaining of any relevant exchange control consents will be a condition precedent to the performance by Tripleplay of any of its obligations under the Contract.

16.3 Neither party will have any liability to the other for any failure to perform or for any delay in the performance (other than as to payment) of any of its obligations under the Contract caused by any factor beyond its reasonable control.

16.4 The rights and remedies of the Customer in respect of the Contract will not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by Tripleplay to the Customer nor by any failure of or delay by Tripleplay in ascertaining or exercising any such rights or remedies. Any release, waiver or compromise or any other arrangement of any kind by Tripleplay will not affect its rights and remedies as regards any other party nor its rights and remedies against the Customer in whose favour it is granted or made except to the extent of the express terms of the release and no such release will have any effect unless granted or made in writing. The rights and remedies in this Contract are cumulative and not exclusive of any rights and/or remedies provided by law.

16.5 The Contract is personal to the parties and the Customer may not assign, transfer or charge its rights and liabilities under the Contract or any of them, or sub-contract or otherwise delegate any of its obligations under the Contract without the prior written consent of Tripleplay.

16.6 If any provision of these Conditions is held by any court or other competent authority to be void or unenforceable in whole or in part, these Conditions will continue to be valid as to the other provisions hereof and as to the remainder of the affected provision (as the case may be).

16.7 The headings in these Conditions are for convenience only and do not affect the interpretation of the Contract.

16.8 Nothing in these Conditions will create, or be deemed to create, a relationship of partnership, principal and agent, franchisor and franchisee, or employer and employee between the parties and the Customer will not by any act or omission do or permit anything to be done which might reasonably be expected to result in an inference of any such relationship being inferred by a third party.

16.9 All notices under this Contract will be in writing and may be served by post or facsimile transmission addressed to the other party at the address given in the Contract or at such other address as a party will from time to time by notice in writing give to the other party for the purpose of service of notices under the Contract. Every such notice will be deemed to have been served by post at the expiration of 2 days after despatch of the same or if sent by facsimile transmission at 10.00am local time on the next normal Working Day of the recipient following despatch. In proving service it will be sufficient to show in the case of a letter that the same was duly addressed prepaid and posted in the manner provided and in the case of a facsimile transmission a transmission report that it was transmitted to the correct telephone number. Saturdays, Sundays and Bank Holidays will not in any event be treated as days on which service is effected, and service will be deemed to take place on the next normal Working Day of the recipient.

16.10 The Contract will be governed in accordance with the laws of England and Wales.

16.11 Any dispute arising under the Contract will be subject to the exclusive jurisdiction of the English courts and the parties waive any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum.

16.12 For the avoidance of doubt nothing in these Conditions will confer on any third party any benefit or the right to enforce any provision of these Conditions.

16.13 These Conditions and the Contract, together with all documents entered into or to be entered into pursuant to their provisions, constitute the entire agreement between the parties in relation to its subject matter and supersedes any and all prior agreements, communications and understandings between the parties regarding such subject matter other than representations made fraudulently.