VR Equipment Supply Conditions

1. DEFINITIONS AND INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in these Conditions. “Business Day” a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

“Conditions” these terms and conditions set out in clause 1 (Definitions and Interpretation) to clause 23 (Governing Law and Jurisdiction) (inclusive) and in the Schedule to these terms and conditions.

“Contract” the contract between the Customer and Talkout for the supply of the Equipment in accordance with the Order Form and these Conditions.

“Customer” the customer organisation referred to in the OrderForm.

“Equipment” the VR headsets supplied by Talkout to the Customer.

“Force Majeure Event” any act, event, omission or accident beyond Talkout’s reasonable control examples of which are set out in clause 16.

“Normal Business Hours” 9.00 am to 5.00 pm Greenwich Mean Time, each Business Day.

“Order Form” the order form signed by the Customer and Talkout detailing the provision of the Equipment.

“Talkout” Talkout Holding Limited, a company incorporated in England and Wales under company number 12632046 and having its registered office at 4 Vicarage Road, Edgbaston, Birmingham B15 3ES.

1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.3 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract.

1.4 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.

1.5 Any words following the terms including, include, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. APPLICATION OF CONDITIONS

2.1 These conditions shall:

(a) apply to and be incorporated in the Contract; and

(b) prevail over any inconsistent terms or conditions contained in or referred to in the Customer's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing).

2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Talkout unless in writing and signed by a duly authorised representative of Talkout.

3. BASIS OF SALE

3.1 Any quotation is valid for a period of 30 days only, and Talkout may withdraw it at any time by notice to the Customer.

3.2 Each order or acceptance of a quotation for Equipment by the Customer shall be deemed to be an offer by the Customer subject to these conditions. The Customer shall ensure that its order is complete and accurate.

3.3 A binding contract shall not come into existence between Talkout and the Customer unless and until the parties have signed the Order Form.

4. QUANTITY AND DESCRIPTION

4.1 The quantity and description of the Equipment shall be as set out in the Order Form.

4.2 All samples, drawings, descriptive matter, specifications and advertising issued by Talkout, and any descriptions or illustrations contained in Talkout's catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.

4.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Talkout shall be subject to correction without any liability on the part of Talkout.

4.4 Talkout reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment which are required to conform with any applicable legislation or, where the Equipment is to be supplied to the Customer's specification, which do not materially affect their quality or performance. Talkoutshall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to Talkout.

4.5 Talkout's employees, contractors, and agents are not authorised to make any representations or contractually binding statements concerning the Equipment.

5. PRICES

5.1 All prices shall be as stated in Talkout's acknowledgement of order. All prices are exclusive of VAT.

5.2 The price of the Equipment shall be the price stated in the Order Form.

5.3 Talkout reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Equipment as has not been delivered to reflect any increase in the cost to Talkout which is due to any change in delivery dates, quantities or specifications for the Equipment which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Talkout adequate information or instructions.

6. PAYMENT

6.1 Subject to any special terms agreed in writing between the Customer and Talkout, for example in the Order Form, Talkout shall invoice the Customer for the price of the Equipment immediately following both parties signing the Order Form.

6.2 The Customer shall pay Talkout’s invoices within 7 days of receipt.

6.3 Until Talkout has received payment of its invoice in full it shall be under no obligation to arrange for the delivery of the relevant Equipment.

6.4 If the Customer fails to make payment in full on the due date, the whole of the balance of the price of the Equipment then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to Talkout, Talkout shall be entitled to:

(a) terminate the Contract or suspend any further deliveries of Equipment (whether ordered under the same contract or not) to the Customer;

(b) appropriate any payment made by the Customer to such of the Equipment (or the Equipment supplied under any other contract between the Customer and Talkout) as it thinks fit (despite any purported appropriation by the Customer);

(c) charge interest on the amount outstanding from the due date to the date of receipt by Talkout (whether or not after judgment), at the annual rate of 8% per annum, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. Talkout reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;

(d) suspend all further manufacture, delivery, installation or warranty service until payment has been made in full;

(e) make a storage charge for any undelivered Equipment at its current rates from time to time;

(f) stop any Equipment in transit; and

(g) a general lien on all Equipment and property belonging to the Customer, exercisable in respect of all sums lawfully due from the Customer to Talkout. Talkout shall be entitled, on the expiry of 14 days' notice in writing, to dispose of such Equipment or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.

6.5 All sums payable to Talkout under the Contract shall become due immediately on its termination, despite any other provision of the Contract. This condition 6.5 is without prejudice to any right to claim for interest under the law, or any right under the Contract.

6.6 Talkout may, without prejudice to any other rights it may have, set off any liability of the Customer to Talkout against any liability of Talkout to the Customer.

7. DELIVERY OF EQUIPMENT AND ACCEPTANCE

7.1 Talkout shall use its reasonable endeavours to deliver the Equipment on the date or dates specified in Talkout's acknowledgment of order, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the order. Time is not of the essence as to the delivery of the Equipment and Talkout is not in any circumstances liable for any delay in delivery, however, caused.

7.2 The Equipment may be delivered by Talkout in advance of the quoted delivery date on giving reasonable notice to the Customer.

7.3 Delivery shall be made during Normal Business Hours. Talkout may levy additional charges for any deliveries made outside such hours at the Customer's request.

7.4 The Customer shall be responsible (at the Customer's cost) for preparing the delivery location for the delivery of the Equipment and for the provision of all necessary access and facilities reasonably required to deliver the Equipment. If Talkout is prevented from carrying out delivery on the specified date because no such preparation has been carried out, Talkout may levy additional charges to recover its loss arising from this event.

7.5 The Customer shall be deemed to have accepted the Equipment when the Customer has had 5 days to inspect the Equipment after delivery and has not within such time notified Talkout of its rejection of the Equipment due to material defects in the Equipment.

7.6 Talkout shall be responsible for any damage, shortage or loss in transit, provided that the Customer notifies it to Talkout (or its carrier, if applicable) within three days of delivery or the proposed delivery date of the Equipment and that the Equipment has been handled in accordance with Talkout's stipulations. Any remedy under this clause 7.6 shall be limited, at the option of Talkout, to the replacement or repair of any Equipment which is proven to Talkout's satisfaction to have been lost or damaged in transit.

8. RISK AND PROPERTY

8.1 The Equipment shall be at the risk of Talkout until delivery to the Customer at the place of delivery specified in Talkout's acknowledgement of order. Talkoutshall off-load the Equipment at the Customer's risk.

8.2 Ownership of the Equipment shall pass to the Customer on the later of completion of delivery (including off-loading), or when Talkout has received in full in cleared funds all sums due to it in respect of:

(a) the Equipment; and

(b) all other sums which are or which become due to Talkout from the Customer on any account.

8.3 Until ownership of the Equipment has passed to the Customer under clause 8.2, the Customer shall:

(a) hold the Equipment on a fiduciary basis as Talkout's bailee;

(b) store the Equipment (at no cost to Talkout) in satisfactory conditions and separately from all the Customer's other equipment or that of a third party, so that it remains readily identifiable as Talkout's property;

(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment; and

(d) keep the Equipment insured on Talkout's behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of Talkout.

8.4 The Customer's right to possession of the Equipment before ownership has passed to it shall terminate immediately if any of the circumstances set out in clause 12 arise or if the Customer encumbers or in any way charges the Equipment, or if the Customer fails to make any payment to Talkout on the due date.

8.5 Until ownership of the Equipment is transferred to the Customer in accordance with clause 8.2, the Customer grants Talkout, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect it, or where the Customer's right to possession has terminated, to remove it. All costs incurred by Talkout in repossessing the Equipment shall be borne by the Customer.

8.6 On termination of the Contract for any reason, Talkout's (but not the Customer's) rights in this clause 8 shall remain in effect.

8.7 Talkout may appropriate payments by the Customer to such Equipment as it thinks fit, notwithstanding any purported
appropriation by the Customer to the contrary, and may make such appropriation at any time.

9. WARRANTY

9.1 Talkout warrants to the Customer that the Equipment is freefrom defects of workmanship and materials. Talkout undertakes (subject to the remainder of this clause 9), at its option, to repair or replace Equipment which is found to be defective as a result of faulty materials or workmanship within three months of delivery.

9.2 Talkout shall not in any circumstances be liable for a breach of the warranty contained in clause 9.1 unless:

(a) the Customer gives written notice of the defect to Talkout within seven days of the time when the Customer discovers or ought to have discovered the defect; and

(b) after receiving the notice, Talkout is given a reasonable opportunity of examining such Equipment and the Customer (if
asked to do so by Talkout) returns such Equipment to Talkout's place of business at Talkout's cost for the examination to take place there.

9.3 Talkout shall not in any circumstances be liable for a breach of the warranty in clause 9.1 if:

(a) the Customer makes any use of Equipment in respect of which it has given written notice under clause 9.2(a); or

(b) the defect arises because the Customer failed to follow Talkout's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice;

(c) the Customer alters or repairs the relevant Equipment without the written consent of Talkout; or

(d) the Customer uses the Equipment with third party accessories or applications which Talkout has not approved.

9.4 Any repaired or replacement Equipment shall be under warranty for the unexpired portion of the three month period.

9.5 Talkout shall not in any circumstances be liable for any damage or defect to the Equipment caused by improper use of the Equipment or use outside its normal application, exposure to direct sunlight or other strong source of light or as a result of a Force Majeure Event.

10. REMEDIES

10.1 Talkout shall not in any circumstances be liable for any nondelivery of Equipment unless the Customer notifies Talkout in writing of the failure to deliver within seven days after the scheduled delivery date.

10.2 Any liability of Talkout for non-delivery of the Equipment shall in all circumstances be limited to replacing the Equipment within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Equipment.

10.3 If Talkout's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, the Customer shall in all circumstances be liable to pay to Talkout all reasonable costs, charges or losses sustained by it as a result.

11. LIMITATION OF LIABILITY

11.1 Except as expressly and specifically provided in the Contract:

(a) the Customer assumes sole responsibility for results obtained from the use of the Equipment and for conclusions drawn from such use; and

(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract.

11.2 Nothing in the Contract shall limit or exclude the liability of Talkout:

(a) for death or personal injury caused by Talkout’s negligence;

(b) for fraud or fraudulent misrepresentation; or

(c) for any matter in respect of which it would be unlawful to limit or exclude liability.11.3 Subject to clause 11.1 and clause 11.2:

(a) Talkout shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, 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 under the Contract; and

(b) Talkout’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall not exceed the price payable for the Equipment under clause 5.

12. TERM AND TERMINATION

12.1 Without prejudice to any other right or remedy available to Talkout, Talkout may terminate the Contract or suspend any further deliveries under the Contract without liability to the Customer and, if the Equipment has been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous Contract or arrangement to the contrary if:

(a) the Customer fails to pay any amount due under the Contract on the due date for payment;

(b) the Customer commits a material breach of any other provisions of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so;

(c) the ability of the Customer to accept delivery of the Equipment is delayed, hindered or prevented by circumstances beyond the Customer's reasonable control;

(d) the Customer makes a resolution for its winding up, makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors or an administration or winding-up order is made or an administrator or receiver is appointed; or

12.2 Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.

12.3 Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

13. FORCE MAJEURE

Talkout shall have no liability to the Customer under the Contract (and reserves the right to defer the date of delivery, or to cancel the Contract or reduce the amount of Equipment ordered) if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control including: epidemic, pandemic, strikes, lock-outs or other industrial disputes (whether involving the workforce of Talkout or any other party), 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, fire, flood, storm or default of suppliers or sub-contractors.

14. VARIATION

No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

15. WAIVER

No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16. SEVERANCE

16.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.

16.2 If any provision or part-provision of the Contract is deemed deleted under clause 16.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

17. ENTIRE AGREEMENT

17.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

17.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.

17.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

18. ASSIGNMENT

18.1 The Customer shall not, without the prior written consent of Talkout, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.

18.2 Talkout may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Contract.

19. THIRD PARTY RIGHTS

The Contract does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

20. COUNTERPARTS

The Contract may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

21. NO PARTNERSHIP

Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

22. NOTICES

22.1 Any notice given to a party under or in connection with this Contract shall be in writing and shall be:

(a) delivered by hand to its registered office (if a company) or its principal place of business (in any other case);

(b) sent by email to the relevant contact email address as stated by each party in or in accordance with the Order Form.

22.2 Any notice shall be deemed to have been received if

(a) delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or

(b) if sent by email at the time of the transmission provided that no bounce back message is received. This clause 22 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution

23. GOVERNING LAW AND JURISDICTION

23.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including
non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

23.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

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