RealD Europe Limited

Standard Terms and Conditions for Purchase of Goods

1. DEFINITIONS; APPLICATION

1.1 In these Standard Terms and Conditions of Sale (these “Conditions”), the following terms have the following meanings:

“Company” means RealD Europe Limited.

"Contract” means any contract between Company and Customer for the sale and purchase of Products by Customer that incorporates these Conditions.

 “Customer” means the person(s), firm or company who agrees to buy the Products from Company.

“Destination” means the place(s) of delivery of Products identified by Customer to Company in advance in writing for a particular Order or in general.

“Order” means an order placed by Customer with Company for the purchase of Products.

"Party” means individually each, and “Parties” means collectively both, of Company and Customer.

“Product” means any good agreed in the Contract or an Order to be purchased by Customer from Company.

“Shipping Costs” means any costs, expenses, charges, taxes, customs duties, and fees resulting from or arising out of or in connection with the shipment or delivery of any Product, including, without limitation, any that are related to shipping, freight, transshipment, loading, unloading, delivery, storage, warehousing and insurance.

“Taxes” means any tax arising from or in connection with the order, sale, purchase, shipment or delivery of any Product, including, without limitation, value added taxes, sales taxes, imposts, and custom duties of any kind.

1.2 In these Conditions:

(i) any reference to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time;

(ii) the principle ejusdem generis shall not apply to any provision in these Conditions;

(iii) the provisions shall not be interpreted against the drafter;

(iv) where these Conditions state that a Party “shall” or “will” perform, act or omit to act, it means that such Party is legally obligated to do so in accordance with these Conditions;

(v) all article and section headings or titles herein are intended solely for the convenience of the Parties, and none will be deemed to affect the meaning or construction of any provision hereof; and

(vi) words of any gender used in these Conditions are intended to include any other gender, and words in the singular number include the plural, and vice versa, unless the context clearly indicates otherwise.

1.3 The Contract, an Order and these Conditions set forth the complete and entire agreement and understanding between Company and Customer regarding the subject matter hereof and no other terms and conditions (including, without limitation, on any order confirmation, bill of lading, website, and otherwise). In the event of any inconsistency or conflict between a provision in these Conditions and any provision in the Contract or an Order, the provision in these Conditions shall prevail except solely if and to the extent the Parties expressly agree in a written Contract or an Order signed by each Party through its authorized representatives to replace, amend or vary from any provision in these Conditions identified in such Contract or an Order.

2. ORDER AND DELIVERY; ACCEPTANCE; RISK AND TITLE

2.1 Each Order for any Product by Customer shall be deemed to be accepted by Company if Customer does not receive an express written rejection of such Order from Company within two (2) business days after Customer placed such Order.

2.2 Products shall be shipped to the Destination and delivered by such time as stated in the Order, otherwise as stated in the Contract or, if none stated, promptly and expeditiously, after Company’s receipt of the Order. Time is of the essence. Except if and to the extent expressly agreed in writing in the Contract or an Order, all Products shall be delivered “DDP destination” (Incoterms® 2020) using Company’s designated carrier and Company shall be responsible for all shipping, handling and insurance costs and any Taxes to ship the Products to the Destination. For the avoidance of doubt, Customer is responsible for any value added taxes payable in relation to the Products.

2.3  Customer may return any Products that are damaged or defective in material or workmanship within ten (10) days of delivery. Any Products not rejected within such time period will be deemed accepted. Company will use commercially reasonable efforts to replace damaged or defective Products within ten (10) days of return receipt. Non-defective or custom items may not be returned under any circumstances. Customer shall notify Company of any disputes with respect to shipment amounts within three (3) days of delivery, after which the parties will have thirty (30) days to resolve any such disputes. Any shipment for which Customer fails to notify Company of a disputed amount within three (3) days of delivery will be deemed accepted.

2.4 Title to, and risk of loss for, any Product shall transfer to Customer upon delivery of such Product into the care of Customer at the Destination.

 

3. PRICE.

Customer agrees to pay for each Product delivered and accepted by Customer under these Conditions the price agreed by Company and Customer in the Contract or an Order for such Product (the “Price”). Company shall deliver a written invoice of the Price no later than thirty (30) calendar days after delivery of such Product to Customer under these Conditions. Customer shall pay the Price for a Product delivered and accepted within thirty (30) calendar days after receipt of the invoice such invoice for, or Customer’s acceptance of, such Product, whichever is later.

4. WARRANTIES AND REPRESENTATIONS

1.   Representations. Each party represents and warrants to the other party that: (i) such party is duly organized and validly existing under the laws of the jurisdiction of its formation and has full power and authority to enter into this Agreement and to carry out the provisions hereof; (ii) this Agreement is a legal and valid obligation of such party, binding upon such party and enforceable against such party in accordance with the terms of this Agreement.
2.   DISCLAIMER OF ADDITIONAL REPRESENTATIONS AND WARRANTIES. EXCEPT AS SPECIFICALLY SET FORTH HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REALD MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED IN RESPECT OF THE REALD GLASSES, AND DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY terms implied by sections 13 to 15 of the Sale of Goods Act 1979 AND ANY OTHER REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

5. LIMITATION OF LIABILITY

5.1 NO CONSEQUENTIAL DAMAGES.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH IN THIS CONTRACT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT OR CONSEQUENTIAL LOSS INCLUDING WITHOUT LIMITATION ANY INDIRECT LOSS OF ACTUAL OR ANTICIPATED PROFITS, DAMAGE TO  PROPERTY RESULTING FROM A BREACH OF THIS AGREEMENT.

5.2 LIABILITY CAP.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, IN NO EVENT SHALL COMPANY'S LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (WHEN AGGREGATED WITH COMPANY'S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT) EXCEED THE TOTAL AMOUNT RECEIVED BY COMPANY UNDER THIS CONTRAT DURING THE 6-MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE.

5.3 Exceptions from Exclusions and Limitations. Nothing in this Agreement excludes or limits a party's liability for (i) injury or death caused by negligence; (ii) any willful default or fraudulent misrepresentations or fraudulent concealment; or (iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979.

 

6. UNITED STATES FOREIGN CORRUPT PRACTICES ACT; THE UNITED KINGDOM BRIBERY ACT 2010

Each of Company and Customer makes the following representations and warranties:

6.1 Acknowledgment of Applicability of FCPA. Each Party is aware that the United States Foreign Corrupt Practices Act, as amended (the “FCPA”), the United Kingdom Bribery Act 2010 (the “Bribery Act”), and the anti-bribery laws and regulations of other countries, apply to each Party in the course of its performance under these Conditions, the Contract or an Order.

6.2 Compliance with FCPA and the Bribery Act. Neither Party nor any of its affiliates or subsidiaries, nor any of their respective shareholders, directors, officers, employees, agents, consultants or other representatives have performed or will perform, in connection with these Conditions, the Contract or an Order, directly or indirectly, any act constituting a violation of the FCPA, the Bribery Act or the anti-bribery laws of any other countries, or any regulations promulgated thereunder, including, without limitation, making, promising to make or offering to make any contribution, gift, bribe, rebate, payoff, influence payment, kickback or other payment to anyone, including any “foreign official” (as defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, whether in money, property, services or anything else of value, in violation of any laws or for the purpose of (i) obtaining favorable treatment in securing business, (ii) paying for favorable treatment for business secured, (iii) obtaining special concessions or for special concessions already obtained, (iv) otherwise influencing the acts of such foreign official, political party or official thereof or candidate for foreign political office in their official capacity, or (v) otherwise obtaining an improper advantage in securing or retaining business.

6.3 No Foreign Official Agents. No director, officer, employee, agent, consultant or other representative of either Party is a “foreign official” (as defined in the FCPA).

6.4 Cooperation with Investigations. Each Party will fully cooperate with any ethics or compliance investigations into possible FCPA violations of the FCPA, the Bribery Act or the anti- bribery laws and regulations of other countries that arise in connection with these Conditions, the Contract or an Order.

6.5 Complete and Accurate Books and Records. Each Party will keep accurate financial books and records in connection with its performance under the Contract or an Order.

 

7. GENERAL

7.1 Each right or remedy of Customer under the Contract or an Order is without prejudice to any other right or remedy of Customer whether under the Contract, an Order or not. Failure or delay by Customer in enforcing or partially enforcing any provision of the Contract or an Order will not be construed as a waiver of any of its rights under the Contract or an Order. Any waiver by Customer of any breach of, or any default under, any provision of the Contract or an Order by Company will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract or an Order.

7.2 Customer may not assign the Contract, an Order or any rights under, or delegate any obligations under, the Contract or these Conditions or an Order. Otherwise, the Contract, an Order and these Conditions shall bind any successor or assign of a Party.

7.3 In the event and to the extent that any part or provision of these Conditions is found by any court, tribunal or agency of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable under any applicable law, such part or provision shall be interpreted or deemed revised so as to be valid and enforceable under such law while preserving, to the greatest permissible under such law, the intents and purposes of such part or provision. Any such illegality, invalidity, voidness, voidability, unreasonableness, or unenforceability shall not affect any other part or provision of these Conditions, the Contract or an Order.

7.4 The parties do not intend any third party to be a third party beneficiary under the Contract, an Order, these Conditions or any sale, purchase and transaction hereunder, and nothing in the Contract, an Order and these Conditions shall be construed for any third party to be a third party beneficiary or to confer any third party beneficiary rights or status on any third party.

7.5 All notices, demands or other communications to be given or delivered to Company under or by reason of the Contract, an Order or these Conditions shall be in writing and sent to Company by reputable express courier service (charges prepaid), or mailed to Company by certified or registered mail, return receipt requested and postage prepaid, at Company’s address at Spaces, The Maylands Building, Maylands Avenue, Hemel Hempstead HP2 7TG, Attn.: Legal Department.

7.6 The Contract, an Order and these Conditions and all disputes arising between the parties will be governed by and construed in accordance with the laws of England and Wales and subject to the non- exclusive jurisdiction of the English courts.  The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement.