Terms and conditions
Our terms and conditions for sale can be obtained below.
Table of contents
1.0 Scope of Applicability
2.0 Offers, Order Forms, Order Form Confirmations
3.0 Prices and terms of payment
4.0 Term and Termination
5.0 Intellectual property rights infringement
6.0 Limitation of liability
7.0 Indemnification
8.0 Confidentiality
9.0 Assignment
10.0 Governing Law; Attorney Fees
11.0 Force Majeure
12.0 General Terms
1.0 Scope of Applicability
1.1 These General Terms and Conditions of Sales (referred to herein as the “Terms and Conditions” or the “Agreement”) effective as of the date specified in the Order Form (“Effective Date”), are entered into by and apply to all sales of products and/or services (“Services”) supplied by M&I Broadcast Services B.V. (the “Supplier”), with its principal place of business at Marathon 2, 1213PH, Hilversum, The Netherlands, and the entity identified as the “Buyer” in the Order Form (collectively Supplier and Buyer may be referred to herein as the “Party” or “Parties”). No such conflicting, contrary or additional terms and conditions shall be deemed accepted by Supplier unless and until expressly confirmed in writing as an addendum to this Agreement or in the Order Form.
1.2 Supplier reserves the right to change the terms and conditions set forth in this Agreement at any time. Supplier commits to providing a twenty (20) working days’ notice of any changes by posting notice on Supplier’s website. If Buyer does not object in writing to the changes within ten (10) working days of the notice, the changes will be deemed accepted.
1.3 Supplier will make the Services available to Buyer pursuant to this Agreement and the applicable Order Form. If agreed to by the parties, the Supplier will provide support for the Services via a separate Support Service Agreement consistent with industry-standards and its general business practices. Any Support Service Agreement entered into by the parties shall be controlled by and subject to the terms and conditions set forth in this Agreement.
2.0 Offers, Order Forms, Order Form Confirmations
2.1 All offers made by Supplier in the Order Form are open for acceptance by Buyer within thirty (30) calendar days from the date of issue, unless otherwise specifically stated therein.
2.2 If an Order Form is issued by Buyer, the Order Form shall contain a reference to the offer issued by Supplier. Order Forms are only binding when confirmed to Buyer by Supplier.
3.0 Prices and terms of payment
3.1 Unless expressly stated otherwise in Supplier’s order confirmation or other means of written agreement, payments for products and/or services shall be made within thirty (30) calendar days after date of invoice without offset.
3.2 If Buyer fails to pay an invoice issued by Supplier before or on the due date agreed, Supplier has the right to suspend delivery of products and/or services until the balance is settled. Supplier is entitled to charge interest at a rate of 1.75% of the amount unpaid per month. If payments are not made before or on the due date, Supplier can no longer guarantee timely delivery of products and/or services purchased by Buyer.
4.0 Term and Termination
4.1 The Order Form and this Agreement starts on the Effective Date and continues for an Initial Term of two (2) years unless the Order Form states otherwise (the “Initial Term”). Following the Initial Term, the Order Form and Agreement will automatically renew for additional one (1) year terms (each a “Renewal Term”) unless either party provides written notice to the other within sixty (60) days of the end of the then current Initial Term or Renewal Term that it intends to terminate the Order Form and Agreement.
4.2 Either party may terminate this Agreement (including all Order Forms) if the other party (a) fails to cure a material breach of this Agreement or Order Form within 30 days after notice, (b) ceases operation without a successor, (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within sixty (60) days or (d) by paying the outstanding fees for the remainder of the current Term within thirty (30) days of termination.
5.0 Intellectual property rights infringement
5.1 OmniPlayer, Nimbus and directly related products and/or services are intellectual property owned by Supplier. By purchasing and/or hiring products and/or services from Supplier, no ownership of any kind or property rights in the intellectual property is transferred to Buyer. Buyer agrees that it will not change or alter the products and/or services provided by Supplier, or engage in any improper use thereof as determined by Supplier. Any such misuse or alteration of the products/services provided by Supplier shall be considered an infringement on Supplier’s intellectual property rights and shall result in legal action.
6.0 Limitation of liability
6.1 Supplier shall not be held responsible or liable for indirect, incidental or consequential damages of any nature including but not limited to: business interruption costs, loss of profit, loss of data, injury to reputation of loss of customers, removal or reinstallation costs or re-procurement costs. In no event shall Supplier’s aggregate liability in connection with the products or services procured by Buyer from Supplier exceed the purchase price of the products and/or services procured by Buyer.
6.2 SUPPLIER SHALL NOT AND CANNOT BE HELD RESPONSIBLE NOR LIABLE FOR ANY CLAIMS BASED ON SUPPLIER’S COMPLIANCE WITH BUYERS’ DESIGNS, SPECIFICATIONS, MODIFICATION OR ALTERATION OF ANY OF SUPPLIER’S PRODUCTS AND/OR SERVICES.
7.0 Indemnification
7.1 Buyer, at its own cost, will defend Supplier from and against any third-party claim arising from Customer’s breach or alleged breach of the Order Form or this Agreement (“Claims”), and will indemnify and hold harmless Supplier from and against any damages or costs awarded against Supplier (including reasonable attorneys’ fees) or agreed in settlement by Buyer resulting from any Claims.
8.0 Confidentiality
8.1 As a recipient, each Party will (a) use Confidential Information only to fulfill its obligations and exercise its rights under the Order Form or this Agreement, (b) not disclose Confidential Information to third parties without the discloser’s prior approval, except as permitted in any Order Form or this Agreement and (c) protect Confidential Information using at least the same precautions recipient uses for its own similar information and no less than a reasonable standard of care.
8.2 The recipient may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know provided it remains responsible for their compliance with this Section, and they are bound to confidentiality obligations no less protective than this Section.
8.3 These confidentiality obligations do not apply to information that the recipient can document (a) is or becomes public knowledge through no fault of the recipient, (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the discloser, (c) it rightfully received from a third party without confidentiality restrictions or (d) it independently developed without using or referencing Confidential Information.
8.4 Breach of this Section may cause substantial harm for which monetary damages are an insufficient remedy. Upon a breach of this Section, the discloser is entitled to seek appropriate equitable relief, including an injunction, in addition to other remedies.
8.4(I) Required Disclosures. The recipient may disclose Confidential Information (including Customer Data) to the extent required by law. If permitted by law, the recipient will give the discloser reasonable advance notice of the required disclosure and reasonably cooperate, at the discloser’s expense, to obtain confidential treatment for the Confidential Information.
8.4(II) Publicity. Provider may publicly announce the Order Form or this Agreement without Buyer’s prior approval. Furthermore, Provider may use the name, logo or trademark of the Buyer on its website and in marketing material without the Buyer’s prior approval.
8.4(III) Trials and Betas. Supplier may offer optional Trials and Betas. Use of Trials and Betas is permitted only for Supplier’s internal evaluation during the period designated by Supplier on the Order (or if not designated, 30 days). Either Party may terminate Buyer’s use of Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features never released. Notwithstanding anything else in this Agreement, Supplier offers no warranty, indemnity, SLA or support for Trials and Betas and its liability for Trials and Betas will not exceed US$1,000.
9.0 Assignment
9.1 Buyer may not assign any Order Form or this Agreement without the prior consent of Supplier, except that either Party may assign an Order Form or this Agreement, with notice to the other Party, in connection with the assigning Party’s merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
10.0 Governing Law; Attorney Fees
10.1 The laws applicable in Hilversum, Netherlands shall govern any Order Form and this Agreement and any action arising out of or relating to any Order Form or this Agreement, without reference to conflict of law rules and the parties submit to the jurisdiction of the courts of that place. To the fullest extent permitted by law, the parties agree that any dispute, claim, or controversy arising out of or relating to any Order Form or this Agreement, including its formation, performance, breach, enforcement, interpretation, or validity, shall be resolved on an individual basis.
10.2 To the maximum extent permitted by law, if any dispute arises between the Parties with respect to the matters covered by this Agreement or Order Form which leads to a proceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive such prevailing party’s reasonable attorneys’ fees and documented out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief to which such prevailing party may be entitled.
11.0 Force Majeure
11.1 Either party, both Supplier as well as Buyer shall be excused from any delay or failure in performance if caused by reasons of any occurrence or contingency beyond its reasonable control including but not limited to: acts of God, acts of war, fire, lockouts, riots, earthquakes, explosions or other acts of nature.
12.0 General Terms
12.1 Notices. Any notices, requests, and approvals required under this Agreement must be in writing addressed to the Supplier’s address as set forth in this Agreement, and to the Buyer’s address as set forth in the applicable Order Form. Notice will be deemed given: (1) upon receipt if by personal delivery, (2) upon receipt if by certified or registered mail (return receipt requested), (3) one day after dispatch if by a commercial overnight delivery or (4) upon delivery if by email. Either Party may update its address with notice to the other.
12.2 Order of Precedence. First this Agreement and then any Exhibits to this Agreement will control in any conflict with this Agreement. An Order Form may not modify any other part of the Agreement unless the Order Form specifically identifies the provisions that it supersedes, is agreed to by Supplier in writing, and is signed by both parties' authorized representatives.
12.3 Amendments. Any amendments to this Agreement must be in writing and signed by each party’s authorized representatives.
12.4 Waivers and Severability. Waivers must be signed by the waiving Party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary, so the rest of this Agreement remains in effect.
12.5 Independent Contractors. The Parties are independent contractors, not agents, partners or joint venturers.
Note: these Terms and Conditions might be subject of change. Changes will not be centrally communicated. It is the sole obligation of the client and/or partner to frequently verify and validate compliance.
