TSL Products Sales Terms and Conditions

STANDARD TERMS AND CONDITIONS OF SUPPLY

The following Standard Terms and Conditions for Supply of Products and Services ("Terms and Conditions") shall govern all orders made by you (the “Customer”) for licences, purchases or delivery of, Products (as defined below) and Services (as defined below). TSL Professional Products Ltd., (hereinafter ‘TSL’) shall not be bound by any terms additional to or different from those in these Terms and Conditions that may appear in any purchase order or in any other communication be it hard copy, electronic or verbal, unless TSL issues a specific amendment to these Terms and conditions as detailed in clause 26 of this document. All Quotations (as defined below) shall be deemed to incorporate and be governed by these Terms and Conditions. TSL’s acceptance of an order is subject to and conditional on Customer’s acceptance of these Terms and Conditions.

1 Definitions:

1.1 “Documentation” means any user manuals, reference manuals, installation, release, application or methodology notes, written utility programs and other materials in any form which are supplied by TSL for use in conjunction with Products together with such Updates thereto as TSL may from time deliver to the Customer.

1.2 “Error” means a defect that causes a Product not to perform substantially in accordance with the applicable specification set forth in the Documentation.

1.3 “Error Correction” means the use of reasonable commercial efforts to remedy an Error.

1.4 “Firmware” means the firmware embedded in or supplied with the Hardware for use in conjunction with the Hardware, together with such additional or replacement firmware as may from time to time be made available by TSL, or supplied by TSL in performance of warranty obligations or pursuant to a Support and Maintenance Agreement in the form of an Update, Error Correction or as part of a Workaround, including all copies made thereof.

1.5 “Warranty Period” means a period of 12 months from the date the Product(s) are delivered to the Customer.

1.6 “Hardware” means tangible, physical equipment directly involved in the performance of signal processing, communication, or other information technology functions made available from, or through, TSL, together with Updates thereto.

1.7 Quotation has the meaning set out in Clause 2.

1.8 “Product(s)” means, together, or individually, as the context may so require, the Hardware, Software, Firmware and Documentation purchased from TSL by Customer, including, in respect of the foregoing, (a) any Workarounds, Error Corrections and Updates as may from time to time be provided by TSL, as part of a purchased Support and Maintenance Service agreement.

1.9 “Software” means the object code version of the particular software programme identified in the applicable Quotation, together with such additional or replacement software as may from time to time be made available by TSL in performance of warranty obligations or pursuant to a Support and Maintenance Agreement in the form of an Update, Error Correction or as part of a Workaround, including all copies made thereof.

1.10 “Services” means the provision of specifically purchased professional services to aid with the development, configuration, installation and deployment of TSL hardware and software products. Support and maintenance services are covered by the TSL Customer Support Terms and Conditions of Sale and Service found appended at the end of these Standard Terms and Conditions of Supply.

1.11 “Service Level Agreement” means an Agreement for the provision of Support and Maintenance Services in respect of one or more Products.

1.12 “Update(s)” means improvements, enhancements or modifications to existing features and / or functionality of the Hardware, Software or Documentation which may include Error Corrections that TSL makes available to customers with a current Support and Maintenance Agreement for no additional licence fee.

1.13 “Workaround(s)” means a change in the procedures followed or data supplied by TSL to avoid an Error without substantially impairing use of the Hardware or Software.

2 Quotations: Only a written quotation of prices and terms for Products or Services executed by an authorised representative of TSL shall constitute a quotation hereunder (a "Quotation"). Services will be provided by TSL only if Customer has purchased Products pursuant to a Quotation and the applicable Quotation specifies such Services. Unless specified explicitly, Quotations shall be valid for a period of 30 days from the date of issue.

3 Orders and Acceptance of Orders: All orders must be made by Customer in writing and are subject to these Terms and Conditions and TSL’s acceptance. All payments made by Customer are non-refundable except as otherwise provided herein.

4 Prices: Unless otherwise specified in a valid Quotation, all prices for Products and Services shall be as specified in TSL’s current price list and shall be net shipping, insurance, handling and taxes unless specified. Discounts, if any, applicable to qualifying Products and Services shall be only as specified in a Quotation.

5 Terms of Payment: Unless otherwise specified in a Quotation or order, all amounts due for Products or Services must be prepaid before delivery. Any other payment terms offered by TSL are subject to Customer and TSL maintaining a mutually acceptable credit arrangement. TSL reserves the right to withdraw any credit advanced at any time. If Customer fails to pay the price or any other payment due hereunder when due, TSL may recover, in addition to the price or other payment, interest thereon at the rate of one and one half percent (1.5%) per month and reasonable legal fees for the collection of such amounts. If Customer fails to pay the price or any other amount due and payable hereunder, TSL shall cease to be obligated to provide warranty remedies hereunder. Payments must be made by electronic transfer or credit card. Payment by cheque will not be accepted.

6 Delivery: With the exception of quotations, orders and invoices clearly described as DDP (Duty, Delivery Paid), all Products will be shipped Ex Works (as defined in Incoterms 2000) from TSL's facilities in Marlow, England or Northridge, California, USA. TSL will advise the Customer that the goods are ready for collection and the Customer must make arrangements to collect the goods from the TSL facility within five (5) days of the notice. If the goods are not collected within the five (5) day period TSL reserves the right to charge a storage fee to the customer equal to 1% of the value of the shipment per week of delay, rounded up to a complete week. If the Customer asks TSL to manage the delivery, TSL will obtain a quotation and obtain the agreement of the Customer before scheduling the shipment with the Customer selected carrier. The quotation will not include any taxes, customs duty or fuel surcharges that the carrier or importing authorities may impose and in all cases, additional charges shall remain the responsibility of the Customer. TSL shall not be deemed thereby to assume any liability in connection with the shipment, nor shall the carrier be construed to be the agent of TSL. TSL will use reasonable efforts to ship as close to the estimated despatch as detailed in the order confirmation.

Shipment shortages must be reported to TSL in writing within five (5) working days of receipt by Customer. Delivery of Services shall be deemed to have taken place upon performance of such Services.

7 Taxes: All prices are exclusive of taxes (including without limitation any value added, use, sales, or similar tax). Customer shall pay all import duties, levies or other import charges, and all sales, use, value added, property or other taxes of any nature, assessed upon or with respect to any of the Products or Services, which are imposed by any nation or community of nations or any political subdivision of any nation, but excluding taxes based upon TSL's net income. Customer shall pay on or before their due dates all such taxes, fees, duties and charges which arise out of or in connection herewith.

If the Customer requests special documents, for instance but not limited to; Certificates of Origin, ATR customs documentation, Certificate of Conformity etc., TSL reserves the right to re-charge the costs of obtaining such documents to the Customer which may include an administration fee. The Customer will be advised of any additional costs and agreement secured in advance of any instructions being made.

Where the customer wishes to use a Letter of Credit (LOC) the costs associated with raising and administrating the LOC including Bank charges will be always be the responsibility of the Customer.

8 Software and Firmware Licences:

8.1 TSL hereby grants to Customer, and Customer hereby accepts, a non-exclusive, non-transferable, non-sublicensable licence to operate any Software or Firmware and use any related Documentation provided by TSL pursuant hereto solely for Customer’s own internal use. Customer’s licence rights are limited to those expressly granted by these Terms and Conditions and by the licence terms and conditions embedded on or supplied with the medium on which the Software or Firmware is supplied. TSL and its licensors reserve all other rights.

TSL, or its licensors, own all intellectual property rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software, Firmware and / or Documentation. Customer may not: (i) modify, adapt, decompile, disassemble, or reverse engineer the Software, Firmware, Updates or Documentation, (ii) create derivative works based on the Software Firmware, or Documentation; (iii) make unauthorized copies of the Software, Firmware, Updates and Documentation; (iv) allow any further disclosure, distribution or relocation (other than within the Customer), resale, lease, loan, rental, licence, or assignment of any type or nature or unauthorised third party use or access to the Software, Firmware, Updates or Documentation thereof without the prior written consent of TSL; (v) use the Software, Firmware or Documentation for the benefit of, or to support or provide services to any third party; (vi) disclose to any third party the results of any Software or Firmware performance benchmarks or any specific detailed comparisons between the Software or Firmware and any Customer or third-party product; (vii) to the fullest extent permitted by law, use any functionality of the Software, Firmware or any output generated by such functionality to augment or replace functionality in a third party product or as an add-in to any third party product without TSL’s prior written consent; or (viii) use the Software, Firmware or Documentation for any purpose that competes with the Product or to substantially duplicate its capabilities. For the avoidance of doubt, the Software, Firmware and Documentation are licensed and not sold.

8.2 All temporary and permanent Error Corrections, patches, Workarounds, releases, versions and Updates supplied by or on behalf of TSL in the provision of the Services provided under these Terms and Conditions are supplied to Customer subject to a non-exclusive, non-transferable, non-sublicensable licence to operate any such items and use any related documentation provided by TSL pursuant thereto solely for Customer’s own internal use in conjunction with the Product.

9 Confidentiality:

9.1 All information that is identified as constituting Confidential Information at the time of disclosure by means of a clearly obvious confidential stamp or legend or by means of a clear oral representation prior to an oral or visual disclosure. Information that is disclosed orally or visually or in writing without a confidential stamp or legend, shall constitute Confidential Information only if it would be reasonably apparent to a reasonable person that such information is of a confidential or proprietary nature. For purposes of clarification and not limitation, the following shall be deemed to constitute Confidential Information regardless of whether it is disclosed orally or visually or in writing without a mark, stamp or legend indicating that it is deemed to be Confidential Information: hardware, firmware and software in object and source code form, and any related technology, ideas, algorithms or information contained therein, and any trade secrets related to any of the foregoing; product plans, costs, prices, customer names, non-published financial information, marketing plans, business opportunities, personnel, research, development or know-how and these Terms and Conditions. In addition to the foregoing, information that is orally or visually or in writing without a confidential stamp or legend, shall constitute Confidential Information if TSL, within ten (10) days after such disclosure, delivers a written document or documents describing such information and referencing the place and date of such oral, visual or written disclosure.

9.2 As used herein, the term “Confidential Information” does not include any information which (i) is or becomes generally available to the public other than as a result of the commission of a breach of these Terms and Conditions, (ii) is known prior to disclosure or is hereafter furnished by a third party, as a matter of right and without restriction on disclosure; or (iii) is developed independently without use of, or reference to, any Confidential Information so long as a Customer claiming independent development can provide clear and convincing evidence of such independent development, (iv) is required to be disclosed pursuant to a judicial, administrative or governmental proceeding provided that TSL has been provided with a reasonable opportunity to seek an appropriate protective order or to waive the provisions of these Terms and Condition.

9.3 Customer agrees that it shall protect TSL’s Confidential Information from unauthorised disclosure and shall use the same degree of care that Customer uses to protect its own like information. Customer shall not disclose Confidential Information to third parties without the prior written consent of TSL. Nor shall Customer use TSL’s Confidential Information for purposes other than that which is necessary for Customer to use and operate the Product(s). Customer shall limit use of, and access to, the Product(s) and related Documentation to such of Customer’s employees and contractors as are directly involved in the operation and maintenance of the Products. All appropriate copyright and other proprietary notices and legends shall be retained on the Product and Customer shall maintain and reproduce such notices on all authorized copies of the Software and related Documentation. Customer shall hold the Product and related Documentation strictly confidential. Customer shall, by all appropriate means, prevent disclosure to, or display or use of, the Product and related Documentation by third parties and employees not authorised to use the Product.

10 Warranties:

10.1 TSL warrants that the Hardware shall be free from defects in workmanship for a period of twelve (12) months and that the Software shall perform substantially as described in the documentation furnished by TSL for a period of ninety (90) days. The warranty period starts when the Product is delivered. A warranty claim is only valid if the Customer notifies TSL or its authorised representative during the warranty period of any defect in the Product or substantial non-performance of the Software. Customer’s sole remedy under this warranty shall be, at TSL’s discretion, the repair or replacement of the non-conforming Software or defective Hardware. No Product shall be returned to TSL without TSL’s prior authorisation and with the relevant RMA number clearly marked. TSL reserves the right to use the services of third parties to perform any repairs or replacements of the non-performing Product. TSL does not warrant that the Products are free from defects or that all defects can be corrected. The warranty for any replacement or repaired Product shall expire at the end of the original warranty period, with the exception where a subsequent failure is attributed to a failed repair where an additional 12 months warranty from the date of the repair will apply. In the case where products are returned under warranty and at TSL expense and ‘no fault is found’ TSL reserves the right to charge any shipment costs to the Customer.

10.2 The foregoing warranty shall not apply, if (i) the Products have been tampered with by any unauthorised individual, or to the extent that any non-conformance or defect was caused by or attributable, whether in whole or in part, to: (a) any associated or complementary equipment or software not furnished by TSL, (b) modification, misuse, neglect or abuse of, or accident to, the Products, (c) exposure of the Products to conditions beyond the environmental, power or operating constraints specified by TSL, or (d) installation or wiring practices not in accordance with those recommended by TSL; or, (ii) Customer has either failed to comply with the provisions of Clause 8.

10.3 TSL warrants that all Services provided under these Terms and Conditions shall be performed in a professional and workmanlike manner.

10.4 No action arising out of these Terms and Conditions may be brought by either party more than one (1) year after the cause of action has accrued except that actions for non-payment.

11 Disclaimer: THE WARRANTIES IN CLAUSE 10 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTY WHATSOEVER IS MADE WITH RESPECT TO THE SERVICES.

TSL’S EXPRESS WARRANTY SHALL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF, TSL RENDERING TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE PRODUCTS.

12 Limitation of Liability:

12.1 UNDER NO CIRCUMSTANCES SHALL TSL'S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS, THE SERVICES, THESE TERMS AND CONDITIONS OR TSL'S PERFORMANCE OR ASSERTED FAILURE TO PERFORM HEREUNDER, IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE PURCHASE PRICE OF THE APPLICABLE PRODUCT OR SERVICE THAT GAVE RISE TO THE CLAIM.

NOTHING IN THESE TERMS AND CONDITIONS SHALL HOWEVER LIMIT OR EXCLUDE TSL’S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF TSL.

12.2 IN NO EVENT WILL TSL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR TORT DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS, SERVICES OR TSL'S PERFORMANCE OF ANY OF ITS OBLIGATIONS UNDER THESE TERMS AND CONDITIONS, WHETHER OR NOT TSL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.3 THE PROVISIONS OF THIS CLAUSE ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN TSL AND CUSTOMER. TSL’S PRICING OF PRODUCTS AND SERVICES REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

13 Intellectual Property Indemnity:

13.1 TSL shall defend or, at its option, settle, any claim, action or proceeding brought against Customer that any Product or Service infringes a trade mark, patent, copyright or trade secret or other intellectual property right, and shall indemnify and hold harmless Customer against all damages and costs finally awarded against Customer in any such action or proceeding, provided that Customer (a) promptly notifies TSL in writing of the claim, (b) gives TSL full authority, information and assistance to defend such claim and (c) gives TSL sole control of the defence of such claim and all negotiations for the compromise or settlement thereof. If a Product or any part thereof becomes, or in TSL's opinion is likely to become, the subject of a valid claim of infringement or the like under any trademark, patent, copyright or trade secret or other intellectual property right law, TSL shall have the right, at its option and expense, either to obtain for Customer a license permitting the continued use of the Product or such part, to replace or modify it so that it becomes non-infringing, or to grant Customer a credit for the then-value of the Product, as depreciated on a straight line basis over a three-year life and to terminate the license thereof, and Customer shall return such Product to TSL. TSL shall have no liability hereunder for any costs incurred or settlement entered into without its prior written consent. TSL shall have no liability hereunder with respect to any claim based upon (i) the combination of the Product with other products not furnished by TSL; (ii) any addition to or modification of the Products by any person or entity other than TSL; (iii) TSL furnishing to Customer any information, data, service or applications assistance, other than the Products and the printed manuals relating thereto; or (iv) use of a superseded or altered release of the Product.

13.2 THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF TSL AND ITS LICENSORS AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER PROPRIETARY RIGHTS INFRINGEMENT BY THE PRODUCTS, ANY SERVICE, ANY PART THEREOF OR THE USE THEREOF, AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND INDEMNITIES WITH RESPECT THERETO. NOTWITHSTANDING THE FOREGOING, ALL OPEN SOURCE SOFTWARE OR FREEWARE INCLUDED WITH THE SOFTWARE IS PROVIDED WITHOUT INDEMNIFICATION.

14 Proprietary Rights:

14.1 The Products and Services ordered or delivered pursuant to this Agreement are provided to Customer solely for Customer’s use and shall not be distributed or resold to third parties. Unless otherwise agreed in writing, any resale or redistribution of TSL Products by Customer shall be void. Customer shall not change, remove or obscure any labels, plates, insignia, lettering or other markings that are on the Products at the time of delivery.

14.2 The Products incorporate proprietary technology and trade secrets of TSL. All right, title and interest in and to the Products, other than that expressly granted to Customer herein, shall remain vested in TSL and its third party suppliers.

Customer shall not, and shall not permit others to, copy, translate, modify, create derivative works from, reverse engineer, disassemble, dissect or decompile the Products or Software, except as may be required by law. All appropriate copyright and other proprietary notices and legends shall be retained on all Products supplied by TSL, and Customer shall maintain and reproduce such notices on all authorized copies of the Software and related documentation.

14.3 Customer shall hold the Software and related Documentation strictly confidential. Customer shall limit use of, and access to, the Software and related documentation to such of Customer's employees and contractors as are directly involved in the operation and maintenance of the Products. Customer shall, by all appropriate means, prevent disclosure to, or display or use of the Software and related documentation by third parties and employees not authorised to use the Products hereunder. Customer shall enter into binding written agreements with employees and contractors to prevent unauthorized publication, disclosure or use of Software and related documentation. In the event that Customer is in default of its obligations under this Clause and TSL requests the return of Products and / or Software, Customer shall immediately discontinue use of and shall return to TSL the original and all copies of the Software, related documentation and the related Products.

15 End of Life Policy: Products have a finite production life span and the Customer acknowledges that insofar as any Product is or becomes the subject of an End of Life Announcement, with effect from the Last Time Buy Date determined by that End of Life Announcement, the Services provided under these Terms and Conditions shall not extend to Error Corrections, patches or Workarounds other than those which TSL, in its sole discretion, determines are necessary to deal with operability related issues affecting the Products.

17 Remote Systems Access Policy: TSL may require access to the Customer’s network to undertake remote fault testing and diagnosis and the ability of TSL to have such access is a pre-requisite to the delivery of the services supplied during the warranty period. If access is denied the Customer will be responsible for the costs of any necessary on-site remedial activity.

18 On-site support Offerings: Customer may request on-site support and training. Such services are provided by TSL for an additional charge (excluding expenses) that will be quoted to the Customer, with a PO issued by the Customer to be invoiced at the time of execution. On-site support visits are subject to engineer availability.

19 Exclusions from Services: The following are specifically excluded from the scope of Services to be provided:

19.1 Customer’s use of TSL Software versions that are no longer supported or which have entered TSL’s End of Life Programme and are beyond their allocated End of Support date;

19.2 Electrical work external to the Products;

19.3 Repair of damages, defects or malfunctions due to any cause external to the Product adversely affecting the Product’s operability or serviceability which shall include, but not be limited to, excess temperature, fire, flood, water, wind, lightning and transportation, or due to accident, abuse, neglect, misuse, tampering, or any act of God;

19.4 Repair of non-conforming or damaged Products caused by failure to provide a suitable installation environment including, but not limited to, the failure to provide adequate electrical power and properly use, manage and supervise the equipment in accordance with TSL’s specifications;

19.5 Repair of non-conforming or damaged Products caused by the use of the Products for purposes other than normal and intended use, from using accessories or supplies not approved by TSL, or from modification or replacement of any components on any boards supplied with the Products;

19.6 Furnishing software, supplies or accessories, painting or refinishing the machines or furnishing material therefore, making specification changes or performing services in connected with the relocation of the Products, or adding or removing approved accessories, attachments or other devices except as set forth herein; and

19.7 Defects or errors which would not have arisen had Customer taken the steps recommended by TSL personnel in the performance of either the Warranties listed in 10 above or any approved Maintenance Agreement.

Any Services provided as a result of any of the above may be invoiced to the Customer as an additional charge based on TSL’s then-current rates.

20 Access to Products: In cases where on-site assistance is required or requested by Customer, Customer shall provide the TSL personnel with full and free access to the Products and in a place, which conforms to the health and safety regulations of the country where the TSL personnel is to perform such Services. If persons other than TSL’s technical engineers repair, modify or attempt to perform Services on any Products covered by these Terms and Conditions, and as a result thereof, any Services by TSL are required to restore the Products to acceptable operating condition, such Services will be provided only at the applicable TSL rates and terms then in effect.

21 Engineering Changes:

20.1 Engineering changes determined applicable by TSL will be made available to Customer for Products covered by these Terms and Conditions. Customer may, by providing notice, elect to have only those changes mandated by TSL for safety purposes, such changes will be provided at no cost to Customer.

21.2 If Customer requests installation of engineering changes, including safety changes, at times other than during TSL’s normal working hours, TSL reserves the right to assess Customer an additional charge for such service at the applicable TSL rates and terms then in effect.

22 Default: TSL reserves the right to terminate or suspend Services in the event Customer is in default under these Terms and Conditions with TSL and such default is not corrected within five (5) business days after written notice. In addition, the contract formed between Customer and TSL on the basis of these Terms and Conditions, and all charges due thereunder will become immediately due and payable in the event that Customer makes an assignment for the benefit of creditors or a voluntary or involuntary petition is filed by or against Customer under any bankruptcy or insolvency laws.

23 Cancellation of Orders:

23.1 Regular, non-custom and non-special orders for Products accepted by TSL may be cancelled by Customer only upon written notice to TSL forty five (45) days before the Products are to be shipped. Such cancelled orders are subject to a forty percent (40%) cancellation fee. Custom and special orders accepted by TSL may not be cancelled unless otherwise agreed by TSL in writing.

23.2 TSL may cancel any accepted order and may delay or decline to make any further shipments in the event of (a) any non-payment or other default by Customer, (b) any conduct prohibited by Clause 14 of these Terms and Conditions, (c) bankruptcy or insolvency of Customer, or (d) any proceeding brought by or against Customer, voluntarily or involuntarily, under any provision of any bankruptcy or other insolvency law of any nation or community of nations and any political subdivision thereof.

24 Import and Export: Customer shall supply TSL with such documents, information and undertakings as may be required to enable TSL in a timely fashion to apply for export licenses or comply with import requirements, where necessary, or to apply for any authorisation required to allow TSL to deliver the products to the Customer. The Customer shall not export either directly or indirectly any Products, or any direct product thereof, without first obtaining express written authorisation from TSL.

25 Assignment: This Agreement, including these Terms and Conditions, shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Customer may not assign or transfer its rights or obligations hereunder without the prior written consent of TSL.

26 Agreement:

These Terms and Conditions, including Quotation(s) or accepted order(s), constitute the entire agreement between the parties with respect to the subject matter hereof and no addition to or modification of any provision hereof shall be binding upon TSL unless made in the form of a written Addendum to these Terms and Conditions, which Addendum is signed by an authorised officer of TSL. Without limiting the generality of the foregoing, TSL shall not be bound by any terms additional to or different from those in these Terms and Conditions, including pre-printed terms, that may appear in, or be referenced in, Customer’s purchase orders or any other communications irrespective of whether TSL (a) countersigns such purchase order or communication; or, (b) causes Product(s) to be delivered subsequent to receipt of such purchase order or communication. All Quotations shall be deemed to incorporate these Terms and Conditions and shall accordingly be governed by the provisions of these Terms and Conditions.

27 Severability: In the event that any term, clause or provision of these Terms and Conditions is construed to be or adjudged invalid, void or unenforceable, such term, clause or provision will be modified or severed in such manner as to cause these Terms and Conditions to be valid and enforceable while preserving to the maximum extent possible the terms, conditions and benefits of these Terms and Conditions, and the remaining terms, clauses and provisions will remain in full force and effect.

28 Notices: All notices or other communications required or permitted shall be in writing and shall be deemed duly served if sent by a recognised commercial courier or other express mail service, or by certified or registered mail, return receipt requested, first class postage prepaid, to TSL at the address stated on the face hereof and to the Customer at the address given in the Quotation or order signed by Customer, or to such other address as the parties may designate from time to time by giving notice as prescribed in this Clause. Any such notice shall be deemed to be served on the second business day after posting.

29 Governing Law: These Terms and Conditions shall be governed by, and construed and enforced in accordance with, the laws of England and Wales for all sales fulfilled from Marlow, UK and with the laws of California for all sales fulfilled from Northridge, USA. No failure by TSL to enforce or take advantage of any of its rights shall constitute a waiver of TSL's right subsequently to enforce any of its rights. The Customer and TSL agree to submit to the exclusive jurisdiction of the English or Californian courts according to the TSL site from which the sale was dispatched or collected.

30 Property and Title:

30.1 No right, title or interest in or to the Products shall pass from TSL to the Customer unless and until all monies owed by the Customer to TSL for all Products ordered by the Customer have been paid in full. While TSL’s ownership continues the Customer shall keep such Products labelled as belonging to TSL and separate and identifiable from all other goods in its possession as bailee for TSL.

30.2 In the event of a failure by Customer to pay the purchase price in full TSL shall have the power to resell the Products and TSL and its agents and employees may forthwith enter any premises or land occupied or owned by the Customer and remove the Products. Risk of damage to or loss of the Products shall pass to the Customer when the Products are made available for collection by the Customer.

The Customer shall indemnify TSL against any loss or damage to the Products prior to the passing of title therein while in the Customer’s custody.

31 Force Majeure: Except for payment of funds, neither TSL nor Customer shall be liable for any failure or delay in performing its obligations hereunder during any period in which such performance is prevented or delayed by causes beyond its reasonable control, including without limitation, flood, war, embargo, strike or other labour dispute, riot or the intervention of any government authority. If any such contingency occurs, TSL may allocate production and deliveries among its customers.

32 No Third Party Beneficiaries: TSL and Customer agree that these Terms and Conditions are intended to govern the rights and obligations between TSL and Customer only and that there are no express or implied third party beneficiaries under these Terms and Conditions.

TSL CUSTOMER SUPPORT TERMS & CONDITIONS OF SALE & SERVICE

You should read and print this service agreement for your records.

This service agreement (“Service Agreement”) applies to Support Services (defined below) and is entered into by and between the customer using the Support Services (“you” or “your”) and TSL (“we,” “us” or “our”) (you and us, each, a “Party” and, collectively, the “Parties”). This Service Agreement does not apply to any professional services (i.e. consulting, configuration) offered, sold or provided separately (e.g. subject to a TSL Support Level Agreement (‘SLA’) or specific services contract for sale and scope of works). All products and services sold by TSL are also subject to TSL’s standard terms and conditions of supply to be found here - TSL Products Sales Terms and Conditions). These support terms and conditions should always be read in conjunction with TSL’s standard terms and conditions of supply.

TSL reserves the right at any time in its sole discretion to change the Support Services and this Service Agreement. If changes increase the price or materially decrease the level of Support Services purchased, 30 days’ email notice will be provided. Your use of the Support Services after the effective date of any change constitutes your acceptance of the changed Support Services and Service Agreement.

ALL LIMITATIONS OF REMEDIES AND DISCLAIMERS OF WARRANTIES, CONDITIONS AND LIABILITY FORM AN ESSENTIAL BASIS OF THE PARTIES’ AGREEMENT.

YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL THE PROVISIONS OF THIS SERVICE AGREEMENT.

Support Services

TSL Customer Support Services connects you with support agents for help with a range of TSL support-related tasks connected with TSL’s provision to you of hardware and/or software products subject to a TSL sales order. (“Support Services”).

TSL Customer Support Services can be contacted at support@tslproducts.com or on the dedicated phone numbers provided to you with any maintenance and support agreement (MSA) purchase and if the products concerned are within warranty or you have purchased MSA covering the products concerned they will respond within 2 hours during TSL’s working hours (07:00-01:00 UK time Monday-Friday – TSL’s ‘in hours’ support).

Any contact received outside of these hours is considered ‘out of hours’ support and will only be provided if you have a MSA in place which has been fully paid for and if you access the Customer Support Team by using the dedicated phone number provided to you. The response time during these times is within 4 hours.

Bespoke Service Level Agreements (SLAs) are also available for negotiation and purchase, but these will be governed by their own defined terms and conditions and are not subject to these general support terms and conditions.

1. Consent for Remotely Based or Data-Connected Services. The software used with the Support Services may connect to TSL and other service providers over a data connection (e.g. the internet or a wireless carrier). In some cases, you will not receive a separate notice when they connect. By using the Support Services, you consent to the transmission of information via the Support Services.

2. Misuse of Remotely Based or Data-Connected Services. You may not use the Support Services in any way that could harm TSL, its affiliates or any other service provider or any computer network or system or impair anyone else’s use thereof. You may not use the Support Services to try to gain unauthorized access to any service, data, account or network by any means.

3. Cooperation and Supportability. TSL’s ability to deliver the Support Services depends upon your full and timely cooperation as well as the accuracy and completeness of any information you provide. You must have an eligible device and validly licensed TSL software that meet(s) the applicable minimum requirements for supportability before TSL can provide the Support Services – this includes but is not limited to, the software having been used only for its intended purpose and no unauthorised adaptations or other changes having been made to the software since acquired from TSL. TSL reserves the right to cancel the Support Services and/or provide a refund due to problems with your device, your system requirements, or configuration, or for any other reason beyond our control that makes providing the Support Services impossible or impractical.

4. Data Backup. You understand that data can be inadvertently lost, corrupted or breached, and agree that you are wholly responsible for the backup of any and all data, software, information or other files stored on your device, including all disks and drives, or other associated devices (collectively, “Your Data”) before receiving the Support Services. You further understand and agree that TSL may need to transfer Your Data, including any confidential, proprietary and personal information stored on your device, to third party service providers in order to perform the Support Services. To the maximum extent permitted by law, TSL is not responsible or liable for any disclosure, loss or corruption of Your Data.

5. Remote Access. To provide the Support Services, TSL may be required to connect remotely to your device, which allows us to access and control your device, view your device screen, install software and change settings on your device. We may ask you to download or accept TSL or third-party software licensing terms to establish the remote connection. You are responsible for any download charges that may apply and for paying the fees charged by your data connection provider(s) (e.g. via internet, or Wi-Fi or wireless carrier). Those fees are in addition to any fees you pay us for the Support Services and we will not reimburse you for them.

We may run diagnostic tools on your device to determine whether it meets the minimum system requirements for us to perform certain Support Services, such as upgrades. You must agree to this step for us to provide those Support Services. If we are unable to establish a remote access connection to your device or complete any of the above steps, we may not be able to provide Support Services.

6. Software Installations/End User License Agreements/Authority. If the Support Service includes software installations, regardless of whether the software is provided by TSL or a third party software provider, you must have your software and software product keys available before installation. By providing TSL with information, software or applications to install or transfer on your behalf, you represent that you have the right to authorise TSL to take such action. You understand and acknowledge that TSL may need to accept End-User License Agreements (“EULAs”) on your behalf for such software installations and you agree to comply with any EULAs. If you request installation of software from a third party software provider in connection with the Support Services, we will give you the opportunity to review the corresponding EULA; you assume sole responsibility if you decide not to review it. You understand and agree that TSL does not control the terms of any third party EULAs and will not review such EULAs prior to accepting them on your behalf.

7. Support Services Renewal Cancellation. You may cancel any MSA by contacting a TSL support agent or your local RSM. When any MSA is automatically near the end of its existing term, you must cancel the subscription at least 3 days before the billing date to avoid a charge for the next period. The billing date is the anniversary of your initial purchase date. TSL reserves the right, in its sole discretion, to terminate your subscription for Support Services without notice if your payment is not made on time, you violate this Service Agreement, or we determine that the subscription was used by someone else or for support on someone else’s device. We may also terminate the Support Services or your subscription if we determine that you are ineligible to receive the Support Services.

Payment, Billing, Refund

1. Payment. The cost of any MSA must be paid annually in advance. The costs of any non on-air critical ad hoc support services must also be paid in advance and all existing invoices due to TSL must be up to date. ‘On-air critical’ support will be provided without payment on the signing and return of a Support Charges Acknowledgement (SCA). The Support Services will not be provided if payment has not been made or the SCA not signed except where a product remains under warranty.

2. Billing. MSA invoices will be issued annually unless you give notice to cancel.

3. Refund. You may cancel any MSA within 30 days after initial purchase and request a refund if we are unable to resolve your support issue. If you or TSL cancels your Support Services subscription after the initial 30-day period, we will not refund the amount you paid.

Links to Third-Party Sites

If you are presented with a link to a third-party website while receiving the Support Services (whether the link is provided by TSL or embedded in the website on which you receive the Support Services or otherwise), you acknowledge that these links are provided for your ease of reference and convenience only, that the linked sites are not under TSL’s control and TSL is not responsible for the contents of any link or linked site or any changes or updates to such sites, and provision of the linked sites does not constitute endorsement of any kind of material they contain or any association with their operators. TSL is not responsible for webcasting or any other form of transmission received from any linked site.

Notices

When you sign up for Support Services and give your email address, you consent to TSL providing you notifications about the Support Services or information the law requires us to provide to you via that address. Notices emailed to you will be deemed given and received when the email is sent.

No Warranty, Limitation of Remedies

NO WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SUPPORT SERVICES ARE PROVIDED “AS IS” AND TSL DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, SATISFACTORY CONDITION OR QUALITY, MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY SUPPORT SERVICES, SOFTWARE, DIAGNOSTICS, OR OTHER MATERIALS OR INFORMATION WE PROVIDE. YOU BEAR THE ENTIRE RISK OF THE SUPPORT SERVICES’ QUALITY AND PERFORMANCE.
LIMITATION OF REMEDIES. If the law provides any implied warranties despite the exclusions and limitations in this Service Agreement, your remedies are limited as determined by us, in the case of Support Services, to either:

Re-performance of the Support Services, or
a refund of the price you paid (if any) for the Support Services.

This is your only remedy for a breach of warranty or condition, even if the remedy fails of its essential purpose.

Unless the law mandates otherwise, we will determine the order in which these limited remedies are provided. You may have additional consumer rights under the law which this Service Agreement cannot change.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW:

IF YOU HAVE ANY BASIS FOR RECOVERING DAMAGES, YOU CAN RECOVER FROM TSL AND ITS VENDORS ONLY DIRECT DAMAGES UP TO THE AMOUNT YOU PAID FOR THE SUPPORT SERVICES; AND

NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, DIRECT, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF YOUR DATA OR LOSS OF BUSINESS, FOR ANY MATTER RELATED TO THIS SERVICE AGREEMENT, ANY SUPPORT SERVICES OR ANY OTHER MATERIALS OR INFORMATION THAT TSL PROVIDES, EVEN IF TSL WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY WERE FORESEEABLE.

THIS LIMITATION OF LIABILITY DOES NOT APPLY TO EITHER PARTY’S LIABILITY TO THE OTHER FOR VIOLATION OF ITS CONFIDENTIALITY OBLIGATION OR THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR FOR FRAUD, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY A PARTY OR FOR DEATH OR PERSONAL INJURY CAUSED BY THAT PARTY’S NEGLIGENCE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

YOU ARE RESPONSIBLE FOR YOUR USE OF THE SUPPORT SERVICES AND ARE LIABLE FOR ANY RESULTING DAMAGE THEREFROM TO THE MAXIMUM EXTENT THE LAW PERMITS.

Contracting Party, Governing Law, and Location for Resolving Disputes

If you are located in the United States, Canada or elsewhere in North or South America, you are contracting with TSL Products Inc, 19770 Bahama St, Northridge, CA 91324, USA. California state law governs the interpretation of this Service Agreement and claims for breach of it, regardless of conflict of laws principles. The laws of the country where you live govern all other claims, including consumer protection, unfair competition, and tort claims.

If you are located anywhere else in the world - in Europe, the Middle East, Africa, Asia, Australasia you are contracting with TSL Professional Products Limited, Unit 1, First Avenue, Globe Park, Marlow, SL7 1YA, UK and the laws of England & Wales govern the interpretation of this Service Agreement and claims for breach of it, regardless of conflict of laws principles. The laws of the country where you live govern all other claims, including consumer protection, unfair competition, and tort claims. You and we irrevocably agree to the exclusive jurisdiction and venue of the English courts for all disputes arising out of or relating to this Service Agreement or the Support Services.

Binding Arbitration and Class Action Waiver (United States Only)

Binding Arbitration and Class Action Waiver If You are Located In the United States. We hope we never have a dispute, but if we do, you and we agree to try for 60 days to resolve it informally. If we can’t, you and we agree to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury. Instead, a neutral arbitrator will decide and the arbitrator’s decision will be final except for a limited right of review under the FAA. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity aren’t allowed. Nor is combining individual proceedings without the consent of all parties.

1. Disputes Covered—Everything Except IP. The term “dispute” is as broad as it can be. It includes any claim or controversy between you and us concerning this Service Agreement, the Support Services, your subscription or account, their price, advertising, marketing, communications, your purchase transaction, billing, or your Data, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of your, your licensors’, our, or our licensors’ intellectual property rights.

2. Mail a Notice of Dispute First. If you have a dispute and our customer service representatives can’t resolve it, send a Notice of Dispute by Recorded Mail or Courier to TSL Products Inc., 19770 Bahama Street, Northridge, CA 91324. Tell us your name, address, how to contact you, what the problem is, and what you want. We’ll do the same if we have a dispute with you. After 60 days, you or we may start an arbitration if the dispute is unresolved.

3. Arbitration Procedure. The AAA will conduct any arbitration under its Commercial Arbitration Rules. For more information, see www.adr.org or call 1-800-778-7879. In a dispute involving $25,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. Any in-person hearing will take place in Los Angeles County, California. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually to satisfy your individual claim. Under AAA rules, the arbitrator rules on his or her own jurisdiction, including the arbitrability of any claim. But a court has exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity.

4. Arbitration Fees and Payments.

a. Disputes Involving $75,000 or Less. We will promptly reimburse your filing fees and pay the AAA’s and arbitrator’s fees and expenses. If you reject our last written settlement offer made before the arbitrator was appointed, your dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards you more than this last written offer, we will: (i) pay the greater of the award or $1,000; (ii) pay your reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration.

b. Disputes Involving More than $75,000. The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.

5. Conflict with AAA Rules. This Service Agreement governs to the extent it conflicts with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.

6. Must File Within One Year. You and we must file in small claims court or arbitration any claim or dispute (except intellectual property disputes—see paragraph 1 above) within one year from when it first could be filed. Otherwise, it’s permanently barred.

7. Rejecting Future Arbitration Changes. You may reject any change we make to the Binding Arbitration and Class Action Waiver section (except address changes) by sending us notice within 30 days of the change by U.S. Mail to the address in paragraph 2 above. If you do, the most recent version of the section before the change you rejected will apply.

8. Severability. If any part of the Binding Arbitration and Class Action Waiver section is found to be illegal or unenforceable, the remainder will remain in effect (with an arbitration award issued before any court proceeding begins), except that if a finding of partial illegality or unenforceability would allow class-wide or representative arbitration, the Binding Arbitration and Class Action Waiver section will be unenforceable in its entirety.

Binding Arbitration and Class Action Waiver (United States Only)

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