1. Applicability.
These terms and conditions of sale (these “Terms”) are the terms which govern the sale of the goods & services (“Goods”) by RealNetworks, GmbH. (”RealNetworks”) to the entity whose name appear in the accompanying invoice (“Buyer”). These Terms are subject to any Agreement signed between RealNetworks and Buyer, and prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
2. Delivery.
(a) The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order and subject to the availability of finished Goods. RealNetworks shall not be liable for any delays, loss or damage in transit.
(b) RealNetworks Seller shall deliver the Goods to RealNetworks place of business (the “Delivery Point”) using RealNetworks’ standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within 3 days of RealNetworks written notice that the Goods have been delivered to the Delivery Point.
(c) RealNetworks may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
(d) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to RealNetworks’ notice that the Goods have been delivered at the Delivery Point, or if RealNetworks is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) RealNetworks, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses.
3. Non-delivery.
(a) The quantity of any installment of Goods as recorded by RealNetworks on dispatch from RealNetworks’ place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
(b) RealNetworks shall not be liable for any non-delivery of Goods (even if caused by RealNetworks’ negligence) unless Buyer gives written notice to RealNetworks of the non-delivery within seven days of the date when the Goods would in the ordinary course of events have been received.
(c) Any liability of RealNetworks for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
4. Quantity.
If RealNetworks delivers to Buyer a quantity of Goods of up to five percent (5%) more or less than the quantity set forth in the invoice, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the invoice adjusted pro rata.
5. Price
(a) Buyer shall purchase the Goods from RealNetworks at the price set forth in the invoice and if the Price[s] should be increased by RealNetworks before delivery of the Goods to Buyer, then these Terms shall be construed as if the increased price[s] were originally inserted herein, and Buyer shall be billed by RealNetworks on the basis of such increased price[s].
(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, RealNetworks income, revenues, gross receipts, personnel or real or personal property or other assets.
6. Payment Terms
(a) Buyer shall pay all invoiced amounts due to RealNetworks within thirty days from the date of RealNetworks’ invoice. Buyer shall make all payments hereunder by wire transfer/check/ or other mutually acceptable payment method and in US dollars.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of one and a half percent [1.5%] per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse RealNetworks for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which RealNetworks does not waive by the exercise of any rights hereunder), RealNetworks shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for seven (7) days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with RealNetworks, whether relating to RealNetworks breach, bankruptcy or otherwise.
7. Reservation of Intellectual Property Rights in the Goods .
(a) The Buyer shall be given a non-exclusive, non-assignable, revocable license to the Intellectual Property Rights (IPR) embodied in the Goods solely for the purpose of consuming and or utilizing the Goods. Buyer shall not be entitled to create or modify the IPR without express written permission of RealNetworks and Buyer shall not be entitled to any other RealNetworks pre-existing or new IPR. Notwithstanding anything contrary herein Buyer may create backup copies of the Goods as reasonably necessary.
(b) The Goods may contain software which originated with third party vendors or open source software providers and Buyer agrees that (i) the title to any third party software incorporated in the Goods shall remain with the third party which supplied the same; and (ii) Buyer will not distribute any such third party software available with the Goods, unless the license terms of such third party software provide otherwise.
(c) Buyer shall not grant sub-licences of the licenses granted herein to any of the group of companies or third parties.
(d) All the Goods shall be delivered in the object code format and the Buyer shall not be entitled to the source code of the software embodied in the Goods.
(e) All new IPR including the IPR which are created by the usage or application of the Goods shall be exclusively owned by RealNetworks and Buyer shall irrevocably and unconditionally assign to RealNetworks (by way of present assignment of future rights) all right, title and interest in and to such IPR. Buyer shall at its own cost do all things necessary to perfect such assignment. If it is not legally possible to make an assignment of the such IPR to RealNetworks Buyer shall grant to RealNetworks as full and free an exclusive license to such IPR, together with the exclusive right to control the exploitation of such IPR.
8. Title and Risk of Loss.
Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to RealNetworks a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the State of Washington Uniform Commercial Code. Notwithstanding anything contrary contained herein the Buyer shall insure against all foreseeable risks and liabilities which it may face in relation to this sale.
9. Amendment and Modification.
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
10. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within three (3) days of receipt (”Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies RealNetworks in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as [reasonably] required by RealNetworks. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies RealNetworks of any Nonconforming Goods, RealNetworks shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to RealNetworks’ facility. If RealNetworks exercises its option to replace Nonconforming Goods, RealNetworks shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth above are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 10 (b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased to RealNetworks.
11. Warranty.
RealNetworks does not warrant that the Goods will be error-free. Subject to applicable laws and except as provided herein, the Goods are furnished “as is” without warranty of any kind, including the warranties of merchantability, non- infringement or fitness for a particular purpose and without warranty as to the performance or results Buyer may obtain by using the Goods. Buyer is solely responsible for determining the appropriateness of using the Goods and assumes all risks associated with the use of it, including but not limited to the risks of program errors, damage to or loss of data, programs or equipment, and unavailability or interruption of operations.
12. Limitation of Liability.
(a) In no event shall RealNetworks be liable to buyer or any third party for any loss of use, revenue or profit [or loss of data or diminution in value], or for any consequential, indirect, incidental, special, exemplary, or punitive damages whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not RealNetworks has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall RealNetworks’ aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid to RealNetworks for the goods sold hereunder or One Hundred Thousand United States Dollars (US$ 100,000), whichever is less.
(b) The limitation of liability set forth in Section 12(a) above shall not apply to (i) liability resulting from RealNetworks’ gross negligence or willful misconduct and (ii) death or bodily injury resulting from RealNetworks’ acts or omissions.
(c) RealNetworks shall not indemnify the Buyer for any loss, liability, damages, claims or costs arising out of or relating to this sale including any alleged or actual infringement of IPR by or relating to the Goods, any alleged or actual infringement by or on behalf of RealNetworks of applicable data protection or confidentiality obligations; (c) any alleged or actual infringement by or on behalf of RealNetworks in relation to bribery and corruption; and (d) any damage to property and any claims for loss or injury to any person arising from RealNetworks’ default, negligence, act or omission.
13. Compliance with Law.
Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under these Terms or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance.
14. Waiver.
No waiver by RealNetworks of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by RealNetworks. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15. Confidential Information.
All non-public, confidential or proprietary information of RealNetworks, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by RealNetworks to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this sale is confidential, solely for the use of performing this sale and may not be disclosed or copied unless authorized in advance by RealNetworks in writing. Upon RealNetworks request, Buyer shall promptly return all documents and other materials received from RealNetworks. RealNetworks shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
16. Assignment.
Buyer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of RealNetworks. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms.
17. Governing Law and submission to jurisdiction.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule or any other jurisdiction that would cause the application of the laws of any jurisdiction other than those of the State of Washington. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Washington in each case located in the City of Seattle and County of King, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
18. Notices.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the invoice or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.