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SONY INTERACTIVE ENTERTAINMENT

TERMS AND CONDITIONS OF PURCHASE (“Terms”)

1.             Definitions

“Applicable Laws” means all applicable laws, regulations, regulatory requirements and codes of practice of any jurisdiction, as amended and in force from time to time,  including but not limited to all applicable national and European Union laws, regulations, directives and/or codes of conduct relating to advertising, sales promotion,  consumer protection (including the Consumer Protection Act 1987), data protection (including the Data Protection Act 1998), hazardous substances, packaging, child labour, forced labour (including the Modern Slavery Act 2015),  anti-bribery legislation (including the Bribery Act 2010), employee rights and discrimination, disability discrimination, health and safety, product safety and product liability and the environment;

"Buyer" means Sony Interactive Entertainment Europe Limited and its subsidiaries incorporated in the United Kingdom;

"Contract" means the contract for the purchase by the Buyer of the Goods specified in an Order, which shall be concluded on the earlier of (i) the Seller issuing a written acceptance of the Order; and (ii) the Seller doing any act consistent with the fulfilling of the Order;

"Goods" means the goods or services or works described in an Order or any of them, and includes any Specification and other documentation provided by the Seller in relation thereto;

“Intellectual Property Rights” means  any patents, rights to inventions, copyright and related rights, moral rights, trade marks, trade names, domain names, rights to goodwill, rights in designs, database rights, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

"Order” means the Buyer's printed order form together with the terms of any other document expressly referred to in such order form or any other document of the Buyer in which the Buyer offers to purchase or obtain Goods;

"Seller” means the person, firm or company to whom an Order is addressed;

"Specification" means the description of the Goods and details (if any) of their manufacture and/or performance set out or referred to in the Order and any plans, drawings, data or information relating to the Goods.

2.             General

The Goods shall be supplied by the Seller to the Buyer under these Terms which supersede and cancel any other terms and conditions (including any express or implied terms and conditions of the Seller) and which shall not be varied, waived or added to except by agreement in writing signed by an  authorised representative of the Buyer.  In the event of any contradiction between these Terms and the express terms of an Order then the terms of the Order shall prevail.

 

3.             Price and Payment

3.1           The prices payable for Goods shall be the prices stated in the Order.  If no prices are stated, the prices shall be the lowest prices currently quoted or charged by the Seller at the date of the Order.  The prices set out in the Order are the only amounts payable by the Buyer in relation to the Order and are inclusive of packaging, packing, carriage, insurance and delivery costs but unless specified otherwise do not include VAT or any other tax in relation to the supply of the Goods which shall be determined as at the date of despatch and shall be payable by Buyer against receipt of the Seller's VAT invoice.  Where a fixed purchase price is specified the Seller shall not vary the price or levy any surcharge.

3.2           The Buyer’s terms of payment are 30 days from receipt of invoice.  Unless otherwise agreed invoices may be issued when Goods are accepted by the Buyer.

3.3           Payment may be delayed (but no prompt payment discount shall be forfeited) in the event that the Seller:-

(a)            fails to send a monthly statement of account by the 10th of the month or such other date as is agreed;

(b)           fails to send on the day of despatch for each consignment appropriate advice of despatch and invoices; or

(c)            fails to quote the Buyer’s order number on all correspondence and documents relating to the Order.

3.4           The Buyer shall be entitled to set off against the price of any Goods any sums owed to the Buyer by the Seller and such rights of set off shall apply to and against the beneficiary of any novation or assignment of any debt owed by Buyer.  The price includes all fees payable in respect of any and all use or exploitation of the Goods.

4.             Quality Control

4.1           The quantity, quality and description of the Goods shall be as specified in the Order and/or in any applicable Specification.

4.2        The Buyer shall have the right at any reasonable time to inspect and test the Goods during performance, manufacture or processing or while stored under the control of the Seller.  Such inspection shall not relieve the Seller of any liability nor shall it imply acceptance of any Goods by the Buyer.

4.3           The Buyer shall be entitled at any time before delivery to cancel the Order or any part thereof without incurring any cost or liability to the Seller.

 

5.             Obligation of Seller

5.1           Where the Buyer provides to the Seller any equipment and/or materials the Seller accepts full responsibility for their proper storage, safe custody and method of use.  The Seller accepts the risk of loss of or damage to such equipment and/or materials, which shall at the Seller’s expense be returned to the Buyer or otherwise disposed of in accordance with the Buyer’s instructions.

5.2           Where any Goods require and/or are capable of maintenance, the Seller will endeavour to ensure the continued availability of service parts for a reasonable time after delivery of the Goods.

5.3        The Seller shall provide the Buyer with all information required in order to enable the Buyer to understand and operate the Goods (including, but not limited to installation, commissioning, operation and maintenance). The Buyer shall have the right to copy, reproduce and generally use any documentation provided for the Buyer’s business purposes and the implementation and operation of the Goods. The right to copy, reproduce and use such documentation shall also extend to the Buyer’s third party suppliers provided that such use is required for the purposes of providing services to the Buyer.

5.4        The Seller shall comply with any Sony standards, guidelines and policies notified to Seller as updated by Buyer from time to time.

6.             Delivery of Goods

6.1           The Seller shall, at the Seller's own risk and expense in all respects, deliver the Goods or undertake performance at the place or places in the manner and within the time or times specified in the Order and during the Buyer's normal business hours.  Time of delivery of the Goods shall be of the essence.

6.2           The Buyer shall not be under any obligation to accept delivery of and pay for any Goods other than the Goods specified in the Order, and unless (where appropriate) a packaging or delivery note bearing the Buyer’s order number accompanies each delivery or consignment and such note is prominently displayed.

6.3           If the Goods are to be delivered by instalments the Contract shall be treated as a single contract and not severable.

6.4           The Buyer shall not be obliged to return to the Seller any packaging or packing materials for the Goods whether or not any Goods are accepted by the Buyer.

6.5           If the Seller fails to perform and/or deliver the Goods by the delivery date or times specified in the Order or extended under this sub-clause (whether or not such failure is attributable to industrial disputes or other causes beyond the control of the Seller) the Buyer may either grant to the Seller such extension or extensions of time as the Buyer considers reasonable (time being the essence of the Contract as specified or so extended) or rescind the Contract.  If the Buyer elects to rescind the Contract the following provisions shall apply:-

(a)            the Buyer shall return to the Seller, at the Seller's risk and expense, any Goods already delivered which by reason of the non-delivery of the balance are not reasonably capable of use by the Buyer in the ordinary course of business;

(b)           the Seller shall immediately refund to the Buyer any money paid by the Buyer for, or in respect of, undelivered or returned Goods;

(c)            the Seller shall pay to the Buyer an amount equal to the excess (if any) over the Contract price of expenditure reasonably incurred by the Buyer in buying other goods in place of the Goods; and

(d)           the Buyer shall be under no other liability to the Seller for, or in respect of, rescission of the Contract pursuant to the provisions of this clause.

 

7.             Passing of risk and title in Goods

7.1           The risk and title in the Goods shall pass to the Buyer on delivery subject to any right of the Buyer to reject or return the Goods or any part of them.  If the Buyer makes any advance payment, title but not risk shall pass to the Buyer as soon as items are allocated to the Order and the Seller shall record such allocated items as the Buyer’s property.

7.2           Upon delivery the Goods shall not be subject to any option, charge, lien, encumbrance or other adverse right and neither the Seller nor any third party shall be entitled either to retain title to the Goods or to have any equitable or other rights over the Goods.

 

8.             Rejection of Goods

8.1           The Buyer may by notice in writing to the Seller given within 28 days (or such other period as may be agreed) after delivery or performance reject any or all Goods comprised in such delivery which are defective or which are not in accordance with the Order.  Notwithstanding the foregoing the Buyer shall not be deemed to have accepted and may reject any Goods within a reasonable time after any latent defect has become apparent or otherwise known to the Buyer.

8.2           The Buyer may at its option return any rejected Goods to the Seller at the Seller's risk and expense or require the Seller to collect the same.

8.3           The Buyer may at its option require the Seller within a reasonable time to deliver Goods which are in all respects in accordance with the Order in place of any rejected Goods or treat the tender of Goods which the Buyer is entitled to reject as a repudiation of the Contract.

8.4           The Seller shall forthwith repay to the Buyer any money paid by the Buyer to the Seller for, or in respect, of any rejected Goods not replaced by the Seller under sub-clause 8.3; and shall further forthwith pay to the Buyer a sum equal to the excess (if any) over the Contract price of expenditure reasonably incurred by the Buyer in obtaining other Goods in place of the rejected Goods without prejudice to any claim of the Buyer in respect of other loss or damage including consequential damage.

9.             Warranties

9.1           The Seller represents and warrants that: (a) the Goods shall be supplied with full title guarantee; (b) the Goods shall be free from defects in material and workmanship; (c) the Goods shall conform to and in all respects be in accordance with the Specifications set out in the Order and any other specifications, standards, procedures and requirements agreed in writing between the parties from time to time; (d) the Goods shall not infringe the Intellectual Property Rights of a third party; and (e) the Goods shall comply in all respects with all Applicable Laws and are safe, of satisfactory quality, fit for their purposes and to the extent comprising services are performed diligently with a high degree of skill, care and professionalism.

9.2        The Seller shall provide the Buyer with the benefit of any manufacturer’s warranties in respect of the Goods.

9.3           The Goods shall be marked in accordance with any written instructions of the Buyer and any applicable regulations or requirements of any carrier, and be properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.

10.           Intellectual Property Rights

Unless the Seller and the Buyer agree in writing to the contrary, all Intellectual Property Rights in developed or commissioned Goods shall belong to the Buyer.  The Seller hereby assigns to the Buyer with full title guarantee all such rights for the full term thereof and agrees upon the request of the Buyer to execute and deliver such documents and to do all such acts as may be necessary to give effect to this provision.  Seller confirms that the payments made under the Contract include equitable remuneration for rental and that all moral rights and rights of a similar nature in respect of the Goods have or will be waived.

11.           Subcontracting and Assignment

The Seller shall not without the prior written consent of the Buyer assign, transfer or grant any right over any Contract or part thereof,  or sub-contract its rights or obligations hereunder.  Buyer shall be entitled to assign its rights and/or obligations upon notice.

12.           Termination

The Buyer shall be entitled to terminate any  Contract summarily by notice in writing to the Seller and without liability to the Seller but without prejudice to any right of action which shall have accrued at the date of such notice to either party.  If a longer notice period is agreed, Buyer shall in any event be entitled to terminate any Contract forthwith if:

(a)           the Seller breaches Contract;

(b)        there is a change in control of the Seller (“control” having the meaning attributed to it in Section 1124 of the Corporation Tax Act 2010);  

(c)        an order is made or an effective resolution is passed for the liquidation, winding up, administrative receivership or administration of the Seller or the Seller seeks or enters into any composition or arrangement with its creditors or the Seller suffers or permits any distraint or distress proceedings or an encumbrance takes possession or a receiver or manager is appointed of all or any part of its assets or undertaking;

(d)           the Seller ceases or threatens to cease to carry on its business or substantially the whole of its business or disposes of its undertaking or stops or threatens to stop payment of its debts; or

(e)            the Seller commits any act prejudicial to the interests of the Buyer.

13.           Indemnity

13.1         The Seller shall indemnify the Buyer and any member of its group and their respective employees, officers, agents and contractors against all losses, claims, expenses, costs and damages (including all interest, fines, penalties, management time and other professional costs and expenses) of whatever nature arising from or in connection with:

(a)            breach of any express or implied term, warranty or condition given by the Seller in relation to the Goods;

(b)           any liability under any Applicable Laws in respect of the Goods or a Contract;

(c)            any act or omission of the Seller or the Seller's employees, agents or sub-contractors in supplying or delivering the Goods or otherwise in relation to the Contract;

(d)           any infringement or alleged infringement of any Intellectual Property Rights or other rights by the use, sale or possession of the Goods; or

(e)            any injury, damage or loss to any person, firm or company or damage to any property caused by or resulting from the Goods.

13.2         The Seller shall insure against the risks described in this clause and shall maintain such insurance in force and shall produce on request the relevant policy of insurance to the Buyer.

13.3         If the Seller shall fail to insure or to produce the relevant policy of insurance at the request of the Buyer then the Buyer may insure such risks in the joint names of the Buyer and the Seller in such sum and on such terms as the Buyer considers appropriate and the Seller shall pay to the Buyer a sum equal to the premium paid.

 

14.           Specification and Confidentiality

14.1         Any Specification supplied by the Buyer to the Seller, or specifically produced or otherwise specifically provided by or for the Seller to the Buyer in connection with the Contract, together with any applicable Intellectual Property Right or any right to apply for any and all such rights shall be the exclusive property of the Buyer and shall be kept confidential in accordance with clause 14.2 below.

14.2         The Seller shall treat as confidential all information provided by the Buyer or to which the Seller has access in performance of the Contract and shall not disclose to any third party or use for its own benefit, or for the benefit of any third party, any such information except to the extent that it is or can be demonstrated by the Seller to be in the public domain otherwise than by the breach by the Seller of this clause 14, or as properly required for the purpose of a Contract.  The Seller shall obtain the prior written consent of the Buyer before issuing any publicity in relation to any Contract or Order.

14.3      The Seller shall comply with the terms of any non-disclosure agreement between the Seller and the Buyer (“NDA”) and the Seller shall ensure that its employees, agents and permitted sub-contractors are aware of and comply with terms of such NDA. For the avoidance of doubt, the terms of this clause 14 are without prejudice to the provisions of any NDA.

 

15.           Consumer Protection Act and Data Protection Act

15.1         In order to assist the Buyer to minimise any liability under the Consumer Protection Act 1987 the Seller shall for a period of ten years from the date of delivery of the Goods under this Contract or such longer period as the Buyer may reasonably require retain full and complete records of all matters pertaining to the Goods, each component part of the Goods and all raw materials used and shall upon the Buyer's request provide details and copies of the same.

15.2         The Seller shall at all times comply with the provisions and obligations imposed by the Data Protection Act 1988 and the Data Protection Principles together with any subsequent amendments or enactments in storing and processing personal data and all personal data acquired from the Buyer shall be returned to the Buyer on request.

16         Anti-Bribery

16.1      The Seller acknowledges that it is of the utmost importance to the Buyer that the Seller in the performance of its obligations under each Contract complies with all Applicable Laws including without limitation anti-corruption statutes such as the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010 (“Anti-Corruption Laws”).

16.2      The Seller represents, warrants and undertakes that:

(a)        it shall comply with all applicable Anti-Corruption Laws;

(b)        no officer, employee, agent or shareholder of Seller is a government or foreign public official (together “Government Official”) and no Government Official has or will have any legal, financial or beneficial interest in a Contract or the payments made by the Buyer hereunder;

(c)        during the term of each Contract, no Government Official shall become an officer or employee of Seller and/or any of its permitted subcontractors nor shall any Government Official acquire a direct or indirect interest in the Seller and/or any of its permitted subcontractors without the prior written consent of the Buyer;

(d)        it will not use any subcontractors in connection with a Contract without having in place appropriate checks and procedures to ensure compliance with Anti-Corruption Laws; and

(e)        it shall promptly inform the Buyer if it becomes aware of any improper payment to a Government Official in connection with a Contract or if it otherwise breaches any of the provisions of this section 2.

 

17.           General

17.1         No delay, neglect or forbearance on the part of the Buyer in enforcing any term or condition of a Contract shall either be deemed to be a waiver or in any way prejudice any right of the Buyer under that Contract.

17.2         Each Contract shall be construed and have effect in all respects in accordance with the Law of England and the Seller hereby submits to the exclusive jurisdiction of the English courts.