All sales or licenses made by ATEME SA. a corporation with offices at 6 rue Dewoitine, immeuble green Plaza, 78140 VELIZY-VILLACOUBLAY, FRANCE (“ATEME”) or its Affiliates as defined hereinafter, are made to the Buyer in compliance to the following General Terms and Conditions (hereinafter the “Agreement”). Affiliates shall mean any entity, directly or indirectly, controlling, controlled by or under common control with ATEME SA, where “control” means the ownership of at least fifty percent (50%) of the equity or beneficial interests of such entity or the right to vote or appoint a majority of the board of directors or other governing body of such entity, and any other entity with respect to which ATEME SA or any such Affiliates has management or operational responsibility.
DEFINITIONS:
“Professional Services” shall refer to a set of services provided by the Company, which may include, but are not limited to, the following activities (i) Project management, (ii) Acceptance tests (iii) Software installation, (iv) Software updates or upgrades, (v) Product configuration, (vi) Integration services, (vii) Change requests, including but not limited to lineup modifications, extensions, and improvements, (viii) Training, (ix) Cabling and racking; This list is illustrative and not exhaustive. The Company may provide additional services as part of the Professional Services at its discretion.
1. Acceptance
This Agreement applies to that certain purchase order (the “Purchase Order”) received by ATEME from the Buyer for the acquisition of ATEME’s products (the “Products”) or Professional Services (the “Professional Services”) or Support Services (the “Support Services”) as set forth in the Purchase Order. Support Services shall be provided to Buyer pursuant to the ATEME Support Terms attached hereto as Exhibit A. ATEME’s acceptance of the Purchase Order is conditional on Buyer’s full consent to the terms and conditions set forth in this Agreement instead of those in Buyer’s Purchase Order. Any terms and conditions contained on Buyer’s Purchase Order shall be null and void. Any changes in this Agreement must be agreed in writing by an authorized officer of ATEME before becoming binding.
2. Incoterms
All sales are made EXW or as per the incoterms specified in the quote which shall prevail in case of discrepancy.
3. Shipment
In absence of specific shipping instructions from Buyer, ATEME will ship by the method it deems most appropriate to the address set forth in the Purchase Order. Unless otherwise specified, the Products shall be shipped in Seller’s standard commercial packaging and any other special packaging shall be paid for by Buyer.
4. Delivery
Shipping dates set forth in the Purchase Order are given on an indicative basis. ATEME may send partial deliveries and invoice each such delivery separately. The Buyer cannot refuse such partial deliveries. Unless otherwise agreed in a Purchase Order, Buyer shall pay all related transportation, insurance and customs costs and fees.
Products and Professional Services, if any, as referenced in the corresponding quote, are considered as accepted and delivered if at least one of the following conditions is met: (1) the Products moved to production, (2) the Products have been delivered and the related Professional Services , if any, have been completed and formally accepted by the Buyer, (3) notification of completion of Professional Services has been sent by Seller and no response has been received from the Buyer within a 30 day-period, (4) the acceptance of the Professional Services has been postponed for more than 90 days due to Buyer’s failure to deliver its part of the project.
The start of Support Services (the “Start Date”) is triggered upon delivery of Products, or acceptance of Professional Services as applicable.
5. Order Cancellation
Once a Purchase Order has been received by ATEME but prior to shipment of the Product, Buyer may cancel this Purchase Order. Any such cancellations shall be subject to administrative charges to be paid by Buyer in accordance with the following schedule. Buyer may also postpone the shipment of a Product specified in a Purchase Order once in writing for up to ninety (90) days after the scheduled ship date identified in the order acknowledgement. If a Purchase Order has been postponed and then subsequently cancelled (or deemed cancelled because Buyer has not authorized shipment prior to the end of the postponement period) the cancellation charge shall apply.
Number of days prior to original scheduled ship date that notice of cancellation is received by SellerCancellation charge as a percent of original Purchase Order
– 1-30 100%
– 31-90 50%
– 91 or more 25%
Notwithstanding the foregoing, in the event that, at any time prior to shipment, Buyer reasonably determines that the technical configuration of the Products as described in the relevant Purchase Order are in fact incompatible with Buyer’s network (a “Configuration Error”), then Buyer may cancel the Purchase Order for an administrative fee equal to twenty-five percent (25%) of the original Purchase Order amount, provided that Buyer submits both (i) a replacement Purchase Order for the same number of (correctly configured) units of Product as covered by the original Purchase Order, and (ii) detailed supporting documentation describing the Configuration Error.
6. Payment
6.a. Payment terms The applicable prices for the Products or Services are set forth in Sellers’ prices list. The currency of the quote shall be the currency of payment; if payment is made in a currency that is not the one used in the quotation, Buyer shall make payment using the exchange rate published by the Federal Reserve Bank of New York as of the close of business on the date of the Purchase Order. Buyer is responsible for payment of all transportation, handling, insurance and brokerage charges incurred in delivering the Products to Buyer’s location.
All invoices are payable thirty (30) calendar days from date of invoice. Amounts past due shall be subject to late payment interests eligible for capitalization, at the legal interest rate of the European Central Bank for capital refinancing operations plus ten (10) points.
Payment for the Support Services is due upon the start of the Support Services. Customer shall pay the total amount of the Support Services price invoiced by the Seller, plus the corresponding VAT, within thirty (30) calendar days from the date of the invoice.
6.b. Taxes Buyer agrees to pay all taxes or levies of whatever nature arising out of or in connection with this Agreement, excluding any taxes based on ATEME’s net income. Buyer shall reimburse ATEME in full for any of the foregoing taxes or levies paid by ATEME for which Buyer is responsible hereunder. If Buyer asserts that any transaction under this Agreement is tax exempt, Buyer will provide ATEME with an exemption certificate acceptable to the taxing authorities. If Buyer is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, ATEME receives an amount equal to the sum it would have received had no such deduction or withholding been made. The buyer shall promptly deliver to ATEME a certificate as prescribed by Law, reflecting the amount deducted or withheld.
7. Warranty
7.a. Hardware Warranty: Unless otherwise specified in the accompanying documentation, ATEME warrants that the hardware Products (excluding any software contained therein) purchased hereunder shall be free from defects of material and workmanship under normal use and service. For a period of one (1) year following shipment of the Product, ATEME shall at no charge and at its sole option (i) supply either new or refurbished replacement parts for defective parts of the Products or new or refurbished Products to replace defective Products; or (ii) repair defective Products.
7.b. RMA: Buyer must obtain a Return Merchandise Authorization (“RMA”) from ATEME prior to returning any Products for repair or replacement. After having received the information necessary to investigate, ATEME shall issue an RMA number to Buyer if necessary. The cost of shipping Products to ATEME shall be supported by Buyer and the return shipping cost shall be paid by ATEME. However, if the returned Products are neither non-conforming nor defective, ATEME shall bill Buyer for the cost of such shipping.
7.c. After receiving a quote, the Buyer must indicate his willingness to undertake repairs by sending a purchase order. Once the repair mechanism has been completed, ATEME shall send an invoice to the Buyer.
7.d. Ownership and the associated risks of the Products returned for repair shall remain to the Buyer’s. However, according to 7.c, if six months after receipt of the quote the Buyer has not indicate his willingness to undertake the repairs or claimed the Product, the ownership of the Product shall be transferred to ATEME. As a result, ATEME will be entitled to assign the Product to recycling. The Buyer waives any action against ATEME concerning the recycled Product.
7.e. Software: ATEME warrants the software for a period of ninety (90) days following shipment. SELLER DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED
7.f. Procedures: Warranty obligations apply only to Products returned to ATEME’s premises, transportation and customs charges prepaid by buyer, during the applicable warranty period and confirmed defective by ATEME. Further, the warranty obligations set forth the sole and exclusive remedy to Buyer.
7.g. Exclusions: The warranties will not apply to any Products that have been repaired or altered by others than ATEME, damaged by Buyer’s or any other third party, fail to meet environmental specifications, or subjected to misuse, negligence, accident, unusual physical or electrical stress, or other causes than the normal and intended use of the Products.
7.h. Out of Warranty Costs: All out-of-warranty costs for repair or replacement (including the costs of shipment) shall be supported by Buyer. Out-of-warranty diagnostic investigations, repairs, workarounds, and/or replacements are subject to a charge as quoted by ATEME and accepted by Buyer evidenced by a purchase order. Such out-of warranty repairs shall be done under the Buyer’s liability.
7.i. Disclaimers: THE WARRANTY FOR THE PRODUCTS SET FORTH HEREIN IS IN LIEU OF, AND SELLER HEREBY DISCLAIMS, ALL OTHER WARRANTIES EXPRESSED, STATUTORY OR IMPLIED, WHETHER ORAL OR WRITTEN, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
8. Limitation of Liability
SELLER’S TOTAL LIABILITY ARISING OUT OF THIS SALE OR THIS AGREEMENT SHALL NOT EXCEED THE PURCHASE PRICE PAID BY BUYER. IN NO EVENT WILL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, ANY LOST PROFITS OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The limitations specified in this Section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its purpose.
9. Ownership
All patents, trademarks, trade names, copyrights, mask works, design rights, trade secrets, know-how and other proprietary rights in or related to the Products or the Service and any ATEME’s Confidential Information are and shall remain the exclusive property of ATEME or its licensors, whether or not specifically recognized or perfected under the laws of the country where the Products, Services or items of ATEME Confidential Information are located. Buyer will not take any action that jeopardizes such proprietary rights or acquire any such right in the Products, Services or ATEME’s Confidential Information, except the limited right to use the Confidential Information in operating the Products or Services
10. Software License
Buyer is hereby granted a limited, non-transferable, nonexclusive, fully paid license to use the software and the documentation solely in conjunction with the Products or Services purchased under this Agreement (subject to the limitation in 10(b) below, if applicable) and solely for use by Buyer for its internal business purposes. Buyer receives no title or ownership rights to such software or documentation. Except for the license granted in this section, all right, title and interest in the software and documentation, and all copies thereof, shall remain the exclusive property of ATEME or its licensors. This Agreement does not entitle Buyer to the receipt or use of, or access to, software source code or any right to reproduce the software or the documentation, and Buyer agrees that it shall not decompile, disassemble, reverse engineer or otherwise attempt to gain access to the software source code. This license shall terminate and Buyer’s right to use the software shall cease upon termination of this Agreement for any reason. Buyer shall destroy all copies of the software upon termination of the license and shall certify such destruction to ATEME in writing.
11. Intellectual Property
Indemnification: ATEME will defend Buyer against claims based on an allegation by any third party that the Products or Services supplied to ATEME hereunder infringe a patent valid in the European Union issued as of the date such Products or Services were shipped by Seller. ATEME, at its own expense, shall defend the Buyer against any claim, suit or proceeding insofar as such claim, suit or proceeding is based on an allegation that the Product or Service directly infringe patent, copyright, or trade secret, and will pay those damages, liabilities or costs (excluding consequential and exemplary damages) finally awarded against the Buyer, by the highest court of competent jurisdiction, or agreed to in writing by ATEME as settlement or compromise, as a result of such claim, suit or proceeding; PROVIDED ATEME shall be (i) promptly notified of such claim, suit or proceeding, (ii) given all evidence in the Buyer’s possession, custody or control, and (iii) given reasonable assistance in and sole control of the defense thereof and all negotiations for its settlement or compromise. The Buyer shall be entitled to participate in its defense at its own expense with counsel of its own choosing. ATEME shall have no liability hereunder with respect to any claim of infringement which is based upon (i) a combination of the Product with any other product not furnished by ATEME hereunder, (ii) any modification or addition to the Product or the documentation by a party other than ATEME, (iii) any effective use of a Product according to a process not allowed by ATEME or (iv) use of other than the most current, unaltered update to the Product..
In the event of an infringement allegation for which ATEME is obligated to indemnify the Buyer, ATEME may at its sole discretion: (i) obtain a license that allows Licensee to continue to use the Products, (ii) replace or modify the Products so as to be non- infringing, or (iii) if neither (i) nor (ii) is available to ATEME at a commercially reasonable expense, then ATEME may accept the return of the Product and, if the infringing Product is still used by the Buyer, shall refund to the Buyer the depreciated value of the license fee paid for the use of such product to ATEME by the Buyer. If ATEME elects to provide any one of the options set forth in (i) and (ii) above, ATEME ’s indemnity obligation under this Agreement will be fulfilled as to that individual claim, except for any damages, liabilities or costs (excluding consequential and exemplary damages) incurred by the Buyer prior to ATEME taking such action. If ATEME elects the option set forth in (iii) above, ATEME’s indemnity obligation under this Agreement shall be entirely fulfilled. ATEME shall not indemnify the Buyer or any other customer against essential patent claims related to the implementation of international standards. In this respect, for instance, in the event a third party brings any claim that Buyer should pay royalties for using H.264, HEVC or any other standard in its IPTV service, ATEME shall not provide indemnification. Buyer acknowledges that the ATEME can potentially offer the possibility to use (MPEG-H encode, MPEG-H decode) and technology provided by Fraunhofer from which ATEME has obtained licensing rights. ATEME shall not indemnify Buyer or any other customer against Intellectual and industrial property claim related to the use by the customer of Fraunhofer technology including MPEG-H encode and MPEG-H decode. Buyer will indemnify and hold ATEME harmless against any damages, liabilities or costs finally awarded against ATEME or agreed to by Buyer as settlement or compromise, and will defend any claim, suit or proceeding brought against ATEME insofar as such claim, suit or proceeding is based on an allegation arising from other claims; provided Buyer is promptly notified of such claim, suit or proceeding, given all evidence in ATEME ’s possession, custody or control, and given reasonable assistance in and sole control of the defense thereof and all negotiations for its settlement or compromise.
THE PARTIES AGREE THAT THE FOREGOING STATES EACH PARTY’S ENTIRE LIABILITY WITH RESPECT TO INFRINGEMENT OF ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT UNDER THIS AGREEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO.
12. Confidentiality
Buyer shall hold the software and other non-public information about ATEME’s technology, Products and Services (the “Confidential Information”) in confidence. Buyer shall not disclose, distribute or make available any part of the Confidential Information to any third par ty without ATEME’s prior written consent. Buyer shall take every reasonable precaution to protect the confidentiality of the Confidential Information. These obligations shall not extend to any information relating to the Confidential Information that is now or later becomes available without restriction to the general public by acts not attributable to Buyer. Buyer acknowledges that ATEME’s Confidential Information is unique property of extreme value to Seller, and that unauthorized use or disclosure thereof would cause Seller irreparable harm that could not be compensated by monetary damages, entitling Seller to injunctive and preliminary relief.
13. Product Changes
ATEME reserves the right to make substitutions, modifications and improvements to the Products or Services, provided that such substitutions, modifications or improvements shall not materially affect performance of the Products or Services.
14. Breach of Agreement
Either party reserves the right to terminate this Agreement immediately upon notice to the other party in the event that the other party is in breach of a material obligation hereunder, including, but not limited to, failure to comply with credit terms. If Buyer is in breach, Buyer shall remain liable for all unpaid sums and reimburse ATEME for all damages suffered or incurred as a result of Buyer’s breach. The remedies provided herein will be in addition to all other legal means and remedies available to ATEME. ATEME reserves the right at ATEME’s sole option to require Buyer to accept delivery of and pay for all Products on order as of the termination date. Any payment obligations of Buyer to ATEME and the obligations of either party under Sections 7(h), 8 – 10, 12, 14 – 16 shall survive termination of this Agreement for any cause.
15. Termination
: Either party may terminate this Agreement if either files or has filed against it a petition in bankruptcy or otherwise for the protection of debtors, makes an assignment for the benefit of creditors, has a trustee or receiver appointed for all or substantially all of its assets any of which are not discharged within sixty (60) days. ATEME reserves the right at its sole option to require Buyer to accept delivery of and pay for all Products on order as of the termination date. Termination of this Agreement by ATEME will be without prejudice to any other remedies ATEME may have.
16. General
16.a. No Waiver Failure of either party to enforce at any time any of the provisions hereof will not be construed to be a waiver of the right of such party thereafter to enforce any such provisions.
16.b. Assignment Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of ATEME and any such attempt at assignment will be null and void. ATEME shall be entitled to assign all or any portion of this Agreement.
16.c. Governing Laws and Disputes THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF FRANCE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. Any action or proceeding seeking to enforce any provision of, or based on any claims for equitable relief arising out of this Agreement or the transaction contemplated hereby may be brought against any Party only in front of Paris Commercial Court.
16.d. Personal Data Each party acknowledges that it is fully informed and in compliance with the Personal Data Protection Regulations, especially but not limited to Regulation 2016/679/EU of April 27, 2016, that it considers as essential.
16.e. Force Majeure Other than Buyer’s obligation to make payment for amounts due and payable under this Agreement, neither party shall be responsible for delays in fulfilment of obligations under this Agreement due to an event of Force Majeure as defined by the law or the jurisprudence.
16.f. Notices All notices under this Agreement shall be in writing at the address first set forth above or as provided by each party to the other.
16.g. Severability If any portion of this Agreement is held invalid, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement, and the parties shall seek in good faith to agree to substitute for the invalid provision a valid provision that most closely approximates its terms.
16.h. ENTIRE AGREEMENT; MODIFICATIONS This Agreement, including all exhibits hereto, supersedes all proposals, oral or written, all negotiations, conversations or discussions between the parties and contains the entire understanding and agreement of the parties relating to this subject matter. Buyer represents and agrees that it has not relied on any representation or warranty other than those contained herein in entering into this agreement. NO MODIFICATION TO THIS AGREEMENT, NOR ANY WAIVER OF ANY RIGHTS, SHALL BE EFFECTIVE UNLESS AGREED TO IN A WRITING SIGNED BY BOTH (I) BUYER AND (II) ATEME’S GENERAL COUNSEL.