In these General Conditions the following terms shall have the following meanings:
Confidential Information means all information disclosed by FriendMedia or Customer to the other party whether orally or in writing that is designated as being confidential or that by its nature reasonably should be understood to be confidential given its content and/or the circumstances of its disclosure.
Contract means a contract between FriendMedia and a Customer for the sale of the Products;
Customer means the person so described in the FriendMedia Offer, or if none, in the Order Confirmation, who purchases the Products from FriendMedia;
EULA has the meaning described in Clause 13;
General Conditions means these General Terms and Conditions of Sale;
Order Confirmation means a written confirmation by FriendMedia setting out the terms of the Contract created by Customer’s acceptance of the terms of a FriendMedia Offer;
Price means the price of the Products (excluding VAT);
Products means FriendMedia’s products (including Software) or services;
Return Material Authorization Procedure means the return material authorization procedure set out from time to time on FriendMedia’s website;
Schedule means a schedule to these General Conditions;
Software has the meaning described in Clause 13;
FriendMedia means FriendMedia Inc and/or its affiliates; and
FriendMedia Offer means an offer by FriendMedia to supply any Products in response to an enquiry from a Customer.
FriendMedia’s website means www.FriendMedia.com/legal.
- Application of General Conditions
2.1 By accepting a FriendMedia Offer for any Products, Customer shall be deemed to have accepted these General Conditions, as well as, if applicable, any specific conditions contained in the FriendMedia Offer and the Order Confirmation.
2.2 Any modification of these General Conditions, regardless of their nature or purpose, including any terms contained in any of Customer’s documentation which conflict with these General Conditions, will only be valid if accepted by FriendMedia in writing.
2.3 The contents of FriendMedia’s catalogues, brochures and other notices, whether hard copy or online, are for information purposes only, including with respect to prices, and are subject to modification by FriendMedia at any time without notice.
- Contract Creation/Order Confirmation
3.1 FriendMedia Offers, including the Prices therein and an initial estimate of the delivery date, shall remain in effect for 30 days from issue by FriendMedia, unless they are stated by FriendMedia to have a longer duration. If Customer does not accept a FriendMedia Offer within this period, the FriendMedia Offer will automatically lapse. Upon request, FriendMedia will issue a new FriendMedia Offer on the same or revised terms.
3.2 A valid contract between Customer and FriendMedia for the sale of a Product shall be created only when Customer has accepted a FriendMedia Offer in writing. FriendMedia will then issue an Order Confirmation which shall specify the delivery date, whether the delivery date is binding or an estimate only, and other delivery terms. These are deemed to be accepted by the Customer unless the Customer immediately notifies FriendMedia in writing.
- Delivery and Delivery Costs
4.1 Customer shall pay for transportation, insurance and the payment of all applicable duties, taxes and other official charges payable upon importation of the Products, and the costs of related customs formalities. Customer shall bear the handling and packaging costs for any deliveries.
4.2 Any disputes with the carrier of the Products after delivery where Customer has paid for the transportation charges shall be the sole responsibility of Customer. Customer shall inform FriendMedia in writing of any such dispute. The fact that Customer may have a claim against the carrier shall not entitle Customer to refuse the Products, or to delay or reduce the payment of the Price.
4.3 FriendMedia shall not be bound by any binding delivery dates in the event that Customer has failed to make timely payments of the Price in respect of the Products under any Contract or that payments are overdue in respect of any other Products under that or another Contract.
4.4 Customer shall only be entitled to cancel a Contract for late delivery in cases where (i) FriendMedia specifies in the Order Confirmation (or otherwise agrees in writing) that a delivery date is binding and (ii) a delivery is more than 30 days late. Apart from cancellation, Customer shall have no other remedies for late delivery.
- Acceptance of Products
Claims that the Products received by Customer are not those which were ordered, or that the number received does not correspond to the number ordered must be made in writing within 10 days after their receipt by Customer. Failing receipt of such a claim, the Products shall be deemed to have been definitively accepted by Customer unless the Products failed to function correctly within their first 24 hours of operation and the end-customer has notified Customer, and Customer has notified FriendMedia, of a suspected ‘Dead on Arrival’ (please refer to FriendMedia’s Return Material Authorization Procedure) within the sooner of (i) 30 days from receipt of the Product by the Customer or (ii) 10 days from receipt of the Product by the end-customer. FriendMedia’s responsibility in respect of such a claim shall be limited to the supply of Products functioning correctly and in the quantity and according to the specification ordered. FriendMedia shall have no responsibility for Products lost or damaged after delivery Ex-Works or under any other delivery term.
- Force Majeure
FriendMedia shall have no liability to Customer if it is prevented from or delayed in performing its obligations under any Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of FriendMedia or any other person), non-performance by third parties including internet service and hosting providers, third party server downtime or unavailability, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, earthquake, fire, flood, storm, or other natural disasters, default of suppliers or sub-contractors. FriendMedia will use its reasonable efforts to notify Customer of any such occurrence as soon as possible.
- Warranties/Limitation of Liability
7.1 FriendMedia warrants its Products according to Schedule 1. The warranties applicable to services are described in the ‘FriendMedia Terms of Service’ which are available on FriendMedia’s website.
7.2 The warranties described in Clause 7.1 are Customer’s sole and exclusive remedy against FriendMedia, the Products therefore are provided without any other express or implied warranties or other promises (including warranties of merchantability or satisfactory quality, fitness for purpose, or non-infringement.
7.3 FriendMedia shall not be liable to the maximum extent permitted under applicable law whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, sales, revenues or savings, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising or otherwise resulting from the use of the Products or any inability to use the Products. FriendMedia shall not be liable for any of the losses described in this Clause even if you have informed FriendMedia of the possibility of such losses. FriendMedia shall also not have any liability as described in this Clause in the event of any delay in the performance of its warranty obligations. No warranties are applicable in cases where Customer (i) has failed to pay the Price of the Products in question, even if Customer’s own end-customers have paid for the Products, or if payments are overdue in respect of any other Products or (ii) Customer fails to comply with the Return Material Authorization Procedure.
7.4 FriendMedia PRODUCTS ARE NOT INTENDED FOR USE IN DIRECT LIFE SUPPORT, HEALTH OR MEDICAL APPLICATIONS WHERE A SYSTEM OR COMPONENT MALFUNCTION MAY RESULT IN PHYSICAL HARM OR INJURY TO PERSONS. FriendMedia GIVES NO WARRANTIES IN RESPECT OF USE ITS PRODUCTS IN DIRECT LIFE SUPPORT, HEALTH OR MEDICAL APPLICATIONS.
7.5 In no event shall FriendMedia’s liability to Customer exceed the Price of the Products in question.
7.6 In all cases FriendMedia will not be liable for any loss or damage that was not reasonably foreseeable.
7.7 FriendMedia gives no warranties in respect of any training it may carry out for Customer.
7.8 The warranties given hereunder are to Customer only. Customer hereby indemnifies and holds FriendMedia harmless from any claims in relation to the Products which extend or increase FriendMedia’s liability beyond these General Conditions.
7.9 In the event of any claim that your use of the Products infringes the intellectual property rights of a third party, you shall immediately notify FriendMedia, permit FriendMedia to have sole conduct of the claim at FriendMedia’s expense, including defending or settling such claim at FriendMedia’s discretion. FriendMedia may procure the right for you to continue using the Products, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the relevant Product on 7 days’ notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
7.10 Nothing in these General Conditions or in respect of any Contract shall limit FriendMedia’s warranties or liability for losses which may not be lawfully limited or excluded by applicable law.
- Return of Defective Products
8.1 In the event that Customer believes a hardware Product has a defect, the Return Material Authorization Procedure shall be followed.
8.2 Under no circumstances shall FriendMedia have any responsibility for Products returned to it, unless the Return Material Authorization Procedure has been followed.
The Price shall be indicated by FriendMedia in the FriendMedia Offer except that pricing relating to the delivery terms are described in the Order Confirmation. Prices exclude all applicable VAT, sales or withholding taxes which if applicable shall be payable by Customer.
- Terms of Payment
10.1 Customer shall pay FriendMedia 100% of the Price in advance (i.e. before delivery in accordance with Clause 4 above), or be subscribed to its monthly SaaS subscription, unless a FriendMedia Offer provides otherwise.
10.2 In some cases, FriendMedia may require a non-refundable reservation deposit in advance to cover the production charges. The deposit is not refundable in the event that Customer cancels the Contract.
10.3 FriendMedia reserves the right by written notice to change the terms of payment granted to Customer at any time before Customer has accepted a FriendMedia Offer.
- Penalties for Late Payment
11.1 In the event of Customer’s failure to pay the Price in whole or part under any Contract, or any other amount owing to FriendMedia when due, FriendMedia may in relation to that Contract and any other Contracts, suspend its business relationship with Customer, including suspending all the open deliveries, Product reservations, technical support to Customer and warranties for Products. This suspension shall apply whether or not the Products are in possession of Customer or any other person, including any end-customer. FriendMedia may also take legal action against Customer to recover such amounts. To end this suspended status, Customer must pay FriendMedia all the due amounts (plus interest as described in Clause 11.2 and any costs that FriendMedia has incurred due to the late payment), including but not limited to currency conversion losses, bank charges, administration charges, and Product reservation charges.
11.2 Late payments shall be subject to interest in the amount of 2% over the 1 month prime rate (or nearest equivalent) for the currency applicable to the Contract, with a minimum of 2% per annum, and shall accrue as of the date when payment is due until the date that the funds are received by FriendMedia.
11.3 In the event that anyone in possession of a Product for which FriendMedia has suspended the warranty as above makes a claim against FriendMedia in respect of that warranty suspension, Customer shall indemnify and hold FriendMedia harmless against that claim.
- Retention of Title
FriendMedia shall retain title to the Products until payment in full of the Price, plus any applicable interest. In the event payment is not made when due, FriendMedia may, at FriendMedia’s option, repossess the Products, and the sale shall then be automatically null and void. If Customer has resold the Products, FriendMedia may claim the Price, or that portion of the Price which remains unpaid, from the person who has so acquired the Products.
Firmware installed in hardware Products and other software (Software) is subject to a FriendMedia End-User Software License Agreement (EULA) as available on FriendMedia’s website. Customer acknowledges and agrees that (i) all copyright and other intellectual property rights in the Software belong to FriendMedia, (ii) that rights in Software are licensed (not sold) to Customer and title thereto is retained by FriendMedia, and (iii) Customer has no rights in the Software other than the right to use the Software in accordance with the license as described in the EULA.
FriendMedia’s on-line services are subject to the ‘FriendMedia Terms of Service’ as available on FriendMedia’s website.
The supply of Products is subject to FriendMedia’s policies posted on FriendMedia’s website. Customer agrees that it is its responsibility to understand and comply with these policies, as applicable. FriendMedia’s policies may be updated from time to time upon notice including via FriendMedia’s website.
- Data Protection
16.1 If FriendMedia processes any of Customer’s personal data on Customer’s behalf when performing its obligations under any Contract, Customer shall be the data controller and FriendMedia shall be a data processor and in any such case:
(a) Customer acknowledges and agrees that the personal data may be transferred or stored outside the European Economic Area or the country where Customer is located in order that FriendMedia can carry out its obligations under that Contract;
(b) Customer shall ensure that it is entitled to transfer the relevant data (including personal data) to FriendMedia so that FriendMedia may lawfully use, process and transfer the personal data on Customer’s behalf;
(c) Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and
(d) FriendMedia shall process the personal data only in accordance with that Contract and any lawful instructions reasonably given by Customer from time to time.
17.1 FriendMedia and Customer agree to hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than for the purposes of any Contract.
17.2 FriendMedia and Customer agree to each take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of Clause 16.1.
17.3 Customer acknowledge that details of the Products, FriendMedia’s specifications and the results of any performance tests of the Products, constitute FriendMedia’s Confidential Information.
18.1 Notices under any Contract must be given in writing. Notices in writing include by fax, email and FriendMedia may publish notices on FriendMedia’s website.
18.2 FriendMedia may make changes to its General Conditions from time to time which will be published on FriendMedia’s website or otherwise notified to you.
18.3 Each FriendMedia Offer, Order Confirmation, these General Conditions, together with FriendMedia’s policies, EULAs, and any other document referred to herein constitute the entirety of each Contract and supersede any previous arrangement, understanding or agreement between FriendMedia and Customer relating to the Products.
18.4 Customer may not assign or transfer any of its rights or obligations under any Contract, by operation of law or otherwise, without FriendMedia’s prior written consent. FriendMedia may at any time assign, transfer, mortgage or charge any of its rights or obligations under the Contract.
18.5 There are no third party beneficiaries under these General Conditions or any Contract.
18.6 When we use words like including, include, in particular, for example or any similar expression, these are illustrative and do not limit the sense of the words, description, definition, phrase or term preceding those terms. Also words in the singular also mean the plural (and vice-versa) where the context permits.
18.7 These General Conditions and any Contract formed pursuant to them, shall be governed by the laws of California without regard to its conflict of laws provisions. FriendMedia and you irrevocably agree to the exclusive jurisdiction of the courts of California for the adjudication of any disputes arising under these General Conditions and any Contract.
Schedule 1 – Warranties
Hardware: FriendMedia manufactures its hardware products from parts and components that are new or equivalent to new in accordance with industry-standard practices. FriendMedia warrants to Customer in accordance with the following provisions that its branded hardware Products, purchased by Customer from FriendMedia or an authorized FriendMedia distributor/reseller, will be free from defects in materials, workmanship and design affecting normal use, as follows:
(a) For FMS and FMP Products, until 2 years from its end of life (in accordance with FriendMedia’s end-of-life policies).
(b) For other hardware Products, for 36 months from the date of invoice to the Customer from FriendMedia or an authorized FriendMedia distributor.
Software (and firmware): Subject to the limitations in the EULA, FriendMedia warrants that the software and firmware will perform substantially in accordance with FriendMedia’s specification for a period of 30 days from the date of receipt.
Repair or Replacement: Products for which proper claims are made will, at FriendMedia’s option, be repaired or replaced. FriendMedia shall own all parts removed from repaired Products. FriendMedia uses new and reconditioned parts made by various manufacturers in performing repairs and building replacement Products. FriendMedia is not liable for in any respect, nor does it provide, any installation or re-installation service in respect of any repaired or replaced Products.
Exclusions: These warranties do not apply to, and under no circumstance shall FriendMedia bear any liability for any physical or other damages whether to persons or to equipment of any kind, which may have resulted directly or indirectly from, misuse of the Products, defects from improper or inadequate installation, use or maintenance, actions or modifications by unauthorized third parties or Customer, or accidental or wilful damage. These warranties do not apply to the external power supply unit nor the internal memory medium.
Making a claim: To make a claim Customer must request a Return Material Authorization (RMA) from FriendMedia and then comply with the Return Material Authorization Procedure as described at www.FriendMedia.com/legal. FriendMedia has the right to reject the warranty claim in the event that the Customer does not follow and fully cooperate with the Return Material Authorization Procedure.
If you did not purchase your Products directly from FriendMedia then you must first contact the FriendMedia distributor/reseller from who you purchased the Product who will then inform you of the Return Material Authorization Procedure/warranty claim procedure to follow. FriendMedia is not able to accept returns or provide replacement or repaired products direct to customers who purchased the Product from a FriendMedia distributor/reseller (however FriendMedia will honour any valid warranty claim from FriendMedia distributor/reseller).
15 September 2016
At FriendMedia, your privacy is important to us. This statement sets out our privacy practices with respect to the collection, use and disclosure of personal information on this site.
Personal information is information that is personally identifiable to you. Personal information may include your name, e-mail address and mailing address, as the case may be. Visitors to this website are not requested to reveal any personal information. However, on a voluntary basis, you may provide and disclose personal information to us in using certain features of our site, such as the jobs/careers, download and Extranet sections of this site.
FriendMedia will never disclose, sell or lease to any third party other than our subsidiaries or certified partners, any personal information that you provide on this site without your permission, unless we are required to do so by law.
If you have already requested to be part of a mailing list, you may cancel your profile by going back to the section where you created that request or by contacting us using the information provided at the end of this privacy statement. If you have previously provided us with personal information and wish to verify it or have the information removed from our records or corrected, please contact us using the information provided on the ‘Contact’ page of this website.
Your personal information is treated as private, confidential information by FriendMedia and we strive to ensure that your personal information is protected at all times. To maintain the confidentiality of your personal information, this information is kept in a secure environment by FriendMedia.
However, even though FriendMedia has implemented methods designed to ensure the protection of your personal information that are considered to be effective, we cannot guarantee that such information will not be lost, used unlawfully or modified in a fraudulent manner since no data transmission over the Internet can be guaranteed to be completely confidential. Consequently, we bear no liability for the use that may be made of the information by you or any third party.
Confidential or Proprietary Information
FriendMedia is pleased to hear from you and welcomes your comments regarding FriendMedia products and services. Unfortunately, you will understand that FriendMedia does not want to receive confidential or proprietary information from you through our website. Please note that any non-personal information or material sent to FriendMedia will be deemed NOT to be confidential. By sending FriendMedia any information or material, you grant FriendMedia an unrestricted, irrevocable license to use, reproduce, display, exploit, modify, transmit and distribute such material or information, and you also agree that FriendMedia is free to use any ideas, concepts, know-how or techniques that you send us for any purpose.
If you submit an e-mail inquiry to this site, any personal information you might submit at the same time will only be used by FriendMedia employees or its subsidiaries and certified partners that who need to have access to it in order to respond to your inquiry.
FriendMedia reserves the right to change this privacy statement as it sees fit and without prior notice.
This site may contain links that take you to other websites. This privacy statement does not extend to the data collection practices of third parties and FriendMedia does not assume any responsibility for the privacy practices, policies or actions of third parties. You should read the individual privacy policies of such sites and make an informed decision as to whether or not you wish to use these sites based on their privacy practices.