1.1 Definitions

1.1.1 “BBCAA” means Chivers North America dba BBC Audiobooks America and all its relevant officers, servants and/or agents; “The Contract” means these Purchase Conditions and the Purchase Order; “The Contract Period” shall be as defined in Clause 1.4; “The Contract Price” means the price as specified in the Purchase Order; “The Facilities” means any facilities to be provided by the Supplier pursuant to the description in the Purchase Order; “The Goods” means any item(s) to be constructed, manufactured or provided by the Supplier pursuant to the description in the Purchase Order or in the case of Services the physical product(s) of the Services; “The Purchase Order” means the purchase order and/or other documentation detailing the Goods, Facilities and/or Services, “The Services” means any services to be provided by the supplier pursuant to the description in the Purchase Order (which will include where appropriate any equipment/materials provided by the Supplier to perform the Services); “The Supplier” shall be the organisation or individual responsible for providing the Goods, Facilities and/or Services and shall include all its relevant officers, servants and/or agents.

1.2 Existence of Contract

1.2.1 The Contract shall prevail at all times to the exclusion of all other terms and conditions including any terms and conditions which the supplier may purport to apply and the provision of the Goods, Facilities and/or Services shall be deemed conclusive evidence of the Supplier’s acceptance of the Contract.

1.3 Good Faith/Outside Activities

1.3.1 The Supplier shall act in good faith towards BBCAA and shall not bring BBCAA into disrepute nor, without the prior consent of BBCAA, make any reference to it in association with any advertising or other promotional material or write for publication or speak in public about BBCAA or its affairs.

1.4 Contract Period

1.4.1 The Contract shall be completed in accordance with/by the date(s) specified in the Purchase Order, subject to Clause 1.5.

1.5 Contract Price/Payment

1.5.1 BBCAA shall pay to the Supplier the Contract Price within the payment terms agreed upon in the contract and with receipt of a valid invoice(s) from the Supplier. Any invoice relating to more than one order number must stipulate all applicable order numbers or it will not be accepted.

1.5.2 BBCAA reserves the right to withhold payment where the Goods, Facilities and/or Services have not been provided in accordance with the Contract and shall notify the Supplier accordingly.

1.6 Standard of Goods/Facilities/Services

1.6.1 The Supplier shall ensure that any Goods and/or Facilities conform as to both quantity and description as detailed in the Purchase Order, are of satisfactory quality and fit for their intended purpose, shall be equal in all respects to any samples previously supplied and/or are (as appropriate) of good construction, suitable and sound material and adequate strength.

1.6.2 The Supplier shall be competent to fulfil its obligations under the Contract (which includes having relevant experience, training and/or qualifications), under proper care, skill and diligence and the best workmanship whilst discarding its obligations under the Contract, execute the Contract in a timely and professional manner and hold any licence, permit and/or certificate required by law for the performance of the Contract.

1.7 Security/Access/Inspection

1.7.1 BBCAA reserves the right to request identification of the Supplier and conduct random security checks of its possessions and vehicle(s) whilst on or entering or leaving BBCAA premises.

1.7.2 The Supplier shall give BBCAA, at all reasonable times upon giving reasonable notice, access to the Supplier’s premises or such other premises as BBCAA may reasonably require for inspection of any Goods, Facilities and/or equipment/materials to be provided under the Contract.

1.8 Equipment Materials

1.8.1 The Supplier shall be responsible for the care, control, security, insurance and maintenance of any equipment/materials required by the Supplier in relation to the fulfilment of its obligations under the Contract and BBCAA accepts no liability for loss or damage to the equipment/materials otherwise than in consequence of any negligence on the part of BBCAA.

1.8.2 The Supplier shall not use any BBC or BBCAA equipment/materials without the prior consent of BBCAA.

1.9 Compliance

The Supplier shall comply with:

1.9.1 all current relevant legislation, rules, regulations or codes relating to the Goods, Facilities and/or Services to be supplied, including but not limited to sale and supply of goods and services legislation and all applicable national and/or international technical standards and procedures.

1.9.2 health, safety, fire and environmental legislation and official Codes of Practice and guidance.

1.10 Hire or Loan of Goods

Where the contract consists of the hire or loan of Goods BBCAAL shall be responsible to the Supplier for any accidental physical loss of or damage to the Goods whilst in the charge and control of BBCAA provided that the Supplier notifies BBCAA promptly upon any discovery of any such loss or damage.

1.11 Delivery of Goods

1.11.1 The Supplier shall ensure that the goods are kept in a proper, careful and secure manner at the Supplier’s own risk and expense until the whole or any part thereof are delivered to BBCAA, at the Supplier’s own risk and expense, in accordance with the Purchase Order. The Supplier shall ensure that the Goods are packed in such a manner as to reach BBCAA in good condition, clearly labelled and accompanied by delivery notes specifying the quantity and type thereof and the relevant Purchase Order number. The Supplier shall, at its expense, remove all cases, boxes or other packaging from BBCAA premises.

1.11.2 Where the Contract consists of the sale of Goods ownership thereof shall vest in BBCAA absolutely at such time as BBCAA takes physical possession of the Goods unless the Contract is terminated pursuant to Clause 1.15 in which case ownership of any part of the Goods for which payment has been made under the Contract shall vest absolutely in BBCAA at the time of termination.

1.11.3 Where any Goods are found by BBCAA, upon delivery or subsequently, not to conform with the Contract, BBCAA reserves the right to accept or reject the whole or any part thereof and if rejected return the Goods to the Supplier at the Supplier’s own risk and expense, such acceptance or rejection being without prejudice to any other remedy available to BBCAA.

1.12 Third Party Liability and Insurance

1.12.1 The Supplier shall indemnify BBCAA against any claim, cost, loss, damage and/or expense which BBCAA may incur as a direct or indirect consequence of the negligence of the Supplier or the breach of its obligations under the Contract and the Supplier shall arrange and maintain Public Liability Insurance, and where applicable Product Liability Insurance, with an adequate indemnity limit which shall be no less than (aaaaaa) ($#####) with the scope of cover appropriate to the Goods, Facilities and/or Services in respect of any one claim or incident.

1.12.2 The Supplier shall be responsible for insuring any equipment such as motor vehicles or mobile plant provided by the Supplier to perform the Contract against loss or damage and liabilities to third parties and anyone carried in or on such equipment.

1.13 Clearance of Third Party Rights/Copyright

1.13.1 The Supplier shall obtain all necessary consents, permissions and/or clearances from third parties (whether in respect of copyright, trade mark, patent or other intellectual property rights or otherwise) so that BBCAA shall be entitled to use the Goods or Facilities provided or the result of the Services without liability to any third party and the Supplier shall indemnify BBCAA against any actions, claims, costs, damages, demands or expenses brought against, suffered or incurred by BBCAA arising from any breach or non-observance by the Supplier of its obligations under the sub-clause.

1.13.2 The Supplier hereby assigns to BBCAA absolutely and warrants that all Supplier’s relevant officers, servants and/or agents have assigned to the Supplier absolutely the complete copyright in any Goods in all languages throughout the Universe for the full period of copyright (including all rights to renewal and extensions thereof).

1.13.3 The Supplier hereby assigns to BBCAA the unlimited right to edit, copy, alter, add to, take from, adapt or translate any Goods and with regard to those Goods the Supplier hereby waives irrevocably and warrants that all the Supplier’s relevant officers, servants and/or agents have waived irrevocably the benefits of any provision of law known as “moral rights” (including without limitation any right of the Supplier, its officers, servants and/or agents under sections 77 to 85 inclusive of the Copyright, Designs and Patents Act 1988 or any similar laws of any jurisdiction).

1.14 Confidentiality

1.14.1 Except where necessary on a “need to know” basis, the Supplier shall keep confidential any information communicated in confidence or relating to the business of the BBC or BBCAA and which is obtained as a result of its relationship with BBCAA under the Contract.

1.15 Termination

1.15.1 Where BBCAA considers that the Supplier has failed to perform in part or in whole its obligations and the failure is in the reasonable opinion of BBCAA capable of remedy BBCAA shall notify the Supplier thereof and the Supplier shall use its best endeavours to remedy the failure. If the failure is not remedied by the Supplier to the satisfaction of BBCAA within the period specified by BBCAA, BBCAA may remedy the failure and recover the cost thereof from the Supplier and/or terminate the Contract under sub-clause 1.15.2

1.15.2 Notwithstanding sub-clause 1.15.1 above, BBCAA may terminate the Contract with immediate effect in writing if:
a) there has been a material breach by the Supplier of its obligations under the Contract; or
b) the Supplier commits an act of bankruptcy, or makes any composition or arrangement with its creditors, or goes into liquidation whether voluntary or compulsory, or if any order is made or a resolution is passed for the winding up of the Supplier, or if it ceases or prepares to cease trading, or if it suffers the appointment of a receiver or administrator of the whole or part of any of its assets; or
c) there is a change of control of the Supplier. For the purposes of this sub-clause 1.15.2 “control” means the ability to direct the affairs of the Supplier whether by virtue of contract, ownership of shares or otherwise howsoever; or
d) the continued performance thereof is prevented by reason of any event beyond the reasonable control of BBCAA or the Supplier (any such occurrence being deemed an event of force majeure).

1.15.3 Termination of the Contract howsoever arising shall be without prejudice to any right of action accruing or already accrued to either party at the date of the termination.

1.15.4 Termination of the Contract howsoever arising shall not in itself give rise to a claim by the Supplier for damages or otherwise beyond a claim for payment due under the Contract up to and including the date of termination.

1.15.5 Upon termination of the Contract for whatsoever reason the Supplier shall promptly deliver up to BBCAA at the Supplier’s own risk and expense the whole or any part of any Goods for which payment has been made under the Contract up to and including the date of termination and any BBCAA equipment/materials provided under the Contract. BBCAA shall be deemed to have irrevocably all powers and authority to enter the Supplier’s premises to recover and remove such items and recover the cost thereof from the Supplier.

1. Definitions

"BBCAA" means Chivers North America dba BBC Audiobooks America and all its relevant officers, servants and/or agents. "The Contract" means any contract between BBCAA and the Customer for the sale of Goods, incorporating these conditions. "The Contract Price" means the price as specified in the Contract. "The Customer" means the person(s), firm or company who purchases the Goods from BBCAA and whose name appears on the Invoice or delivery note. "The Invoice" means the invoice or delivery note documenting the Contract price to be paid to BBCAA by the Customer for the Purchase of the Goods. "The Goods" means any product or goods agreed in the Contract to be supplied to the Customer by BBCAA (including any part or parts of them).

2. Existence of Contract

The Contract shall prevail at all times to the exclusion of all other terms and conditions including any terms and conditions which the Customer may purport to apply and the provision of the Goods shall be deemed conclusive evidence of the Customer's acceptance of the Contract.

3. Good Faith/Outside Activities

The Customer shall act in good faith towards BBCAA and shall not bring BBCAA into disrepute nor, without the prior consent of BBCAA, make any reference to it in association with any advertising or other promotional material or write for publication or speak in public about BBCAA or its affairs.

4. Contract Price/Payment

(1) Unless otherwise agreed by BBCAA in writing the price for the Goods shall be the price set out on the Invoice.
(2) Unless otherwise agreed in writing the price for the Goods shall include any costs of packaging postage and delivery.
(3) The Customer shall pay to the BBCAA the Contract price plus sales tax and shipping and handling (if applicable) within thirty (30) days of receipt of the Invoice, unless specifically agreed upon in writing. Time for payment shall be of the essence.
(4) The Customer shall make payments due under the Contract without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.
(5) If any sum due from the Customer to BBCAA under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Customer to BBCAA shall become due and payable immediately and BBCAA shall be entitled to (a) cancel or suspend its performance of the Contract or any order including suspending deliveries of the Goods; (b) require the Customer to pay for Goods prior to their despatch or collection from BBCAAs place of business; and (c) charge the Customer: (i) interest calculated on a monthly basis on all overdue amounts both before and after judgment) until actual payment at the rate of four per cent (4%) above the HSBC base rate in force, compound per month until payment is made in full; (ii) and the cost of obtaining judgment or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.

5. Hire or Loan of Goods

Where the Contract consists of the hire or loan of Goods the Customer shall be responsible to BBCAA for any accidental physical loss of or damage to the Goods whilst in the charge and control of the Customer.

6. Delivery and Acceptance of Goods

(1) Unless otherwise agreed in writing by BBCAA delivery of the Goods shall take place at the business address of the Customer or the Customer's agent as stated on the Invoice or to a carrier designated by the Customer.
(2) Unless otherwise indicated on the Invoice or agreed in writing by BBCAA delivery shall be carriage and insurance paid/at the cost and risk of the Customer.
(3) Any dates specified by BBCAA for delivery of the Goods are intended to be an estimate only and time for delivery shall not be of the essence. If no dates are specified, delivery will be within a reasonable time.
(4) Orders are accepted by BBCAA subject to availability of stock. BBCAA reserve the right to deliver the Goods in two or more instalments.
(5) If for any reason the Customer does not accept delivery of any of the Goods when they are ready for delivery or BBCAA is unable to deliver the goods on time because the Customer has not provided appropriate instructions, documents, licences or authorizations then the Goods will be deemed to have been delivered, risk passing to the Customer (including for loss or damage caused by BBCAAs negligence) and BBCAA may (a) store the Goods until actual delivery whereupon the Customer will be liable for all related costs and expenses (including without limitation storage, re-delivery and insurance; or (b) sell the Goods at the best price readily obtainable and (after deduction of all reasonable storage and selling expenses) charge the Customer for any shortfall below the Contract Price
(6) The Customer will be deemed to have accepted the Goods as being in accordance with the Contract unless the Customer notifies BBCAA in writing of any defect or other failure of the Goods to conform with the Contract within 7 days of the date of delivery of the Goods and claims for complete loss of consignment must be notified within 14 days of the date of the statement of account for the period in which the Invoice was raised, failing which the Customer shall not be entitled to reject the Goods and BBCAA shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
(7) Unless otherwise agreed in writing Goods, once delivered, may not be returned unless their return is agreed in accordance with BBCAA Returns Policy from time to time in force.

7. Passing of risk and legal title

(1) The Goods shall be at the risk of the Customer from the time of delivery.
(2) Full legal, beneficial and equitable title to and property in the Goods shall remain vested in BBCAA (even though they have been delivered and risk has passed to the Customer) until payment in full, in cash or cleared funds, for all the Goods has been received by the Company and all other money payable by the Customer to BBCAA on any other account or under the Contract or any other contract has been received by BBCAA.
(3) Until full legal, beneficial and equitable title to and property in the Goods passes to the Customer (a) the Customer shall hold the Goods on a fiduciary basis as BBCAA’s bailee; (b) the Customer shall store the Goods at its premises in a proper manner in conditions which adequately protect and preserve the Goods separately from any other Goods (whether or not supplied by BBCAA) and ensure that they are clearly identifiable as belonging to BBCAA and shall insure them, without any charge to BBCAA; and (c) BBCAA may at any time, on demand and without prior notice, require the Customer to deliver the Goods up to BBCAA and BBCAA may repossess and resell the Goods if any of the events specified in Condition 10 occurs or if any sum due to BBCAA from the Customer under the Contract or on any other account or under any other contract is not paid when due.
(4) For the purposes of this Condition 7 BBCAA, its employees, agents and sub-contractors will be entitled to free and unrestricted access to any premises owned, occupied or controlled by the Customer and/or any other location where any of the Goods are situated at any time without prior notice.
(5) BBCAA shall be entitled to maintain an action against the Customer for the price of the Goods notwithstanding that legal, equitable and beneficial title to and property in the Goods has not passed to the Customer.
(6) BBCAA herby authorises the Customer to use and/or sell the Goods in the normal course of the Customer's business and to pass good title in the Goods to its customers, if they are purchasers in good faith without notice of BBCAA's rights. This right shall automatically cease on the occurrence of any event set out in Condition 10 and/or if any sum owed to BBCAA by the Customer is not paid when due.

8. Intellectual Property Rights

Any intellectual property rights created by BBC/BBCAA in the course of the performance of the Contract or otherwise in the manufacture of the Goods shall remain BBC/BBCAA's property. Nothing in the Contract shall be deemed to have given the Customer a licence or any other right to use the intellectual property rights of BBC/BBCAA.

9. Confidentiality

Except where necessary, on a need to know basis, the Customer shall keep confidential any information communicated in confidence or relating to the business of the BBC or BBCAA and which is obtained as a result of its relationship with the BBCAA under the Contract.

10. Termination

(1) Where BBCAA considers that the Customer has failed to perform in part or whole its obligations and the failure is in the reasonable opinion of BBCAA capable of remedy BBCAA shall notify the Customer thereof and the Customer shall use its best endeavours to remedy the failure. If the failure is not remedied by the Customer to the satisfaction of BBCAA within the period specified by BBCAA, BBCAA may remedy the failure and recover the cost thereof from the Customer and/or terminate the Contract under sub-clause (2).
(2) Notwithstanding sub-clause (1) above, BBCAA may terminate the Contract with immediate effect in writing if (a) there has been a material breach by the Customer of its obligations under the Contract; or (b) the Customer commits an act of bankruptcy, or makes any composition or arrangement with its creditors, or goes into liquidation whether voluntary or compulsory, or if any order is made or a resolution is passed for the winding up of the Customer, or if it ceases or prepares to cease trading, or if it suffers the appointment of a receiver or administrator of the whole or part of any of its assets; or (c) there is a change of control of the Customer. For the purposes of this sub-clause (2), "control" means the ability to direct the affairs of the Customer whether by virtue of contract, ownership of shares or otherwise howsoever ; or (d) the continued performance thereof is prevented by reason of any event beyond the reasonable control of BBCAA or the Customer (any such occurrence being deemed an event of force majeure).
(3) Termination of the Contract howsoever arising shall be without prejudice to any right of action accruing or already accrued to either party at the date of the termination.
(4) Termination of the Contract howsoever arising shall not in itself give rise to a claim by the Customer for damages or otherwise beyond a claim for payment due under the Contract up to and including the date of termination.

11. Exclusion and Limitation of Liability

(1) BBCAA's total liability in contract, tort (including negligence and breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance of the Contract shall be limited to the Contract Price.
(2) BBCAA shall not be liable to the Customer for any loss of profit or other economic loss (direct or indirect), indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) or loss or damage (contractual, tortious, breach of statutory duty or otherwise) which arises out of or in connection with the Contract, or for any liability incurred by the Customer to any other person for any economic loss, claim for damages or awards howsoever arising from the Goods or otherwise.
(3) Nothing in these Conditions excludes or limits the liability of BBCAA for death or personal injury caused by BBCAA’s negligence, or for fraudulent misrepresentation.

12. Notices

Any notice required to be given pursuant to the Contract shall be in writing and sent either by prepaid recorded delivery, registered post or telefacsimile transmission to BBCAA or the Customer at their place of business and any such notice shall be deemed to have been received by the addressee at the time of delivery.

13. Waiver

The failure of either party to exercise or enforce any right conferred upon it by the Contract shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time(s) thereafter. No waiver of any term or condition of the Contract shall operate as a waiver of another or constitute a continuing waiver.

14. Assignment/Sub-contracting

The Customer shall not assign, sub-licence, sub-contract, transfer or otherwise dispose of any of its rights or obligations under the Contract to any third party.

15. No Agency, Partnership or Joint Venture

Nothing in the Contract shall be deemed to constitute either party as the agent of the other or create a partnership or joint venture between the parties.

16. Variation

Any amendment or variation to the Contract shall be made by prior written agreement between the parties.

17. Severability

The unenforceability of any single provision of the Contract shall not affect any other provision thereof.

18. Whole Contract

The Contract and any appendices and any documents referred to therein constitutes the entire understanding between the parties with respect to the subject matter thereof and supersedes all prior agreements, negotiations and discussions between the parties relating thereto.

19. Law

The Contract shall be construed in accordance with the laws of the State of Rhode Island.