Merging Terms and Conditions of Sale

1. Preliminary

1.1 In these Terms and Conditions of Sale “Merging” shall mean Merging Benelux B.V., Mr. F.A. Van Hallweg 20, NL-1181ZT Amstelveen

1.2 “The Parties” shall mean the Purchaser and Merging together.

1.3 These Conditions shall apply to any agreement or contract (“the Agreement”) between Merging and any person, firm or company (“the Purchaser”), placing an order with Merging in respect of any DAW and/or HDR systems, components or other items or services (“the Systems”).

1.4 The Purchaser acknowledges that no terms, conditions, advertisements or particulars whether verbal or otherwise, made or represented by Merging or Merging ’s agents to the Purchaser or his agents, other than such terms and conditions as are incorporated either into these Terms and Conditions of Sale or into any other written agreement signed by Merging and the Purchaser shall expressly or impliedly or by law be deemed to form part of an agreement between the Parties or to have induced the Purchaser to enter into this agreement.

1.5 These Terms and Conditions of Sale are based upon the Terms and Conditions of Merging Technologies S.A., Le Verney, Puidoux (Switserland), shareholder of Merging Benelux B.V..

2. Orders

2.1 Merging will be under no liability for any order received until the order is accepted by Merging in writing.

2.2 If the Purchaser orders a special design, manufacture or other non-standard requirement in respect of the Systems then the Purchaser must give Merging full and adequate instructions and drawings and fulfill any other requirements specified by Merging before Merging can specify a date for delivery.

3. The Systems

3.1 Merging reserves the right to alter the design or specification or packaging of the Systems at any time on 30 days written notice to the Purchaser. The Purchaser shall be deemed to accept such alteration unless it notifies Merging otherwise by facsimile within 7 days of receipt of notification by Merging

3.2 Published specifications, descriptions, photographs, measurements or capacities are approximate only and do not form part of any contract for the sale of the Systems.

3.3 If the Purchaser requires any variation to the Systems or to the work in respect of the installation of the Systems then notice of such variation must be given to Merging with its order in writing giving full details of the variation required.

3.4 Merging reserves the right to charge for such variations. No variation work will be commenced until Merging receives a signed acknowledgment from the Purchaser of the revised terms and conditions and prices. Merging reserves the right to refuse any such request for variations.

4. Installation and Commissioning

4.1 The Purchaser shall ensure that the Systems are installed and commissioned by a duly qualified competent installer.

4.2 If the Purchaser requires installation and commissioning by Merging, it shall so state on its order and Merging shall quote a price for such installation and commissioning.

4.3 Merging shall accept no liability for any defects in the Systems unless the installation and commissioning was carried out by a duly qualified competent installer.

5. Demonstration Systems

In the event that Merging lends any of the Systems for demonstration or evaluation purposes to the Purchaser, then the Purchaser shall be responsible for ensuring the return of the Systems to Merging within three days of receiving a request for return by Merging and the Purchaser shall be liable for any damage incurred to the Systems whilst on loan (including during transit) and shall compensate Merging for any such damage to the full cost of the replacement of the Systems or their repair to be decided at the discretion of Merging

6. Prices

6.1 Prices for the Systems are ex-works Merging ’s premises and do not include the costs of transportation, packaging, value added tax-insurance, or any other local taxes and duties which shall additionally be borne by the Purchaser.

6.2 Merging reserves the right to increase or decrease any price quoted for the Systems in the event that any of the following charges change after the date of acceptance of the order: charges by suppliers, rates for freight, marine insurance, customs duties, landing, clearing and delivery charges and other taxes and duties. Merging will notify the Purchaser promptly of any such changes in writing by facsimile and the Purchaser shall be deemed to accept such price change unless it notifies Merging otherwise by facsimile within 7 business days of receipt of Merging notice of increase.

6.3 The price for the Systems does not include the cost of installation and/or commissioning of the same.

6.4 If Merging incurs additional costs due to delays caused by the Purchaser Merging reserves the right to increase the price of the Systems to take into account the increased costs.

6.5 Prices for the Systems do not include any repairs to or servicing of the Systems other than those covered by the normal warranty unless the Purchaser has entered into a service agreement with Merging

7. Payment

7.1 Unless agreed otherwise in writing before acceptance of order payment shall be made in cash in full in the invoice currency ( EUR, U.S. Dollars or CHF) without deduction on or before delivery by telegraphic transfer or Irrevocable Letter of Credit in a form approved by Merging confirmed by a major Dutch bank and payable on presentation of shipping documents.

7.3 The Purchaser must ensure that any lease or hire purchase finance is arranged in sufficient time to enable settlement on or before the delivery or installation date. Any deposit paid by the Purchaser will be refunded within 5 working days upon receipt of payment in full of the purchase price by the finance company.

7.4 Failure by the Purchaser to pay in accordance with the provisions of this clause shall entitle Merging, without prejudice to any of its rights, to suspend any outstanding deliveries or to cancel the contract.

7.5 Merging shall be entitled in addition to its rights under sub-clause 7.4 to charge interest on any amounts outstanding at the rate of 2% per month from the due date to the date of payment (both after and before any judgment).

8. Delivery and Passing of Risk

8.1 The time for delivery shall be agreed in writing and signed by both Merging and the Purchaser. Merging shall use all reasonable endeavours to comply with such delivery date.

8.2 Delivery shall be at Merging ’s premises unless otherwise agreed between the Parties.

8.3 Risk will pass on delivery, which will be the time of delivery of the Systems from Merging’s premises to the Purchasers’ shipping agent or other carrier.

8.4 If by reason of any act or omission of the Purchaser, Merging is not able to deliver the Systems within 14 days of the agreed time for delivery Merging may charge storage fees to the Purchaser.

8.5 If the Systems are not collected within 30 days of the agreed delivery date by the Purchaser Merging shall have the right to terminate immediately by notice in writing the contract for the sale of the Systems and sell the Systems elsewhere.

9. Shortage

The Purchaser or its agent or carrier shall examine the Systems before taking delivery and notify Merging in writing of any shortage within 7 days of delivery of the Systems, in which event Merging shall make good the shortage.

10. Licenses and Permits

10.1 The Purchaser shall be responsible for ensuring that any license or consent required by law in the Purchaser’s territory is obtained and Merging shall have no liability for any such omission by the Purchaser. If the Purchaser is unable to obtain such license or consent then the contract shall immediately terminate and neither Merging nor the Purchaser shall have any liability towards each other.

10.2 When required by Merging, the Purchaser shall show proof of any import or export licence or any other licence or consent required either to Merging or to any supplier of Merging

11. Title

11.1 Title to the Systems shall not pass to the Purchaser until Merging has received in cash or cleared funds the price together with any ancillary or other sums in respect of the Systems and the Purchaser shall hold the Systems (whether by its servants, agents or sub-bailee or otherwise) as fiduciary bailee for Merging

11.2 Until payment in full is made the Purchaser shall not incorporate the Systems in or use the Systems as material for other Systems.

11.3 Notwithstanding that payment in full shall not have been made, the Purchaser shall be entitled to sell the Systems on, provided that this right may be terminated by notice in writing from Merging, if the Purchaser is in default of any contract or obligation owing to Merging

11.4 Until payment in full has been made the Purchaser shall take all necessary measures to store the Systems safely and keep them in good condition, and shall insure them against all risks normally insured against by businesses similar to the Purchaser (including fire, theft and accidental damage) to their full replacement value.

11.5 Merging shall be entitled to require the Purchaser to deliver up the Systems to Merging at any time following a notice of default pursuant to clause 11.3.

12. Intellectual Property

12.1 The Purchaser acknowledges that it has no right, title or interest in any copyright, design rights, know how, patents, trade marks or any other intellectual property right used in or for the purpose of selling the Systems (“the Intellectual Property”) other than expressly set out herein.

12.2 Merging hereby grants the Purchaser a non-exclusive royalty free license of the Intellectual Property in respect of each Product commencing with the accepted order and continuing until terminated on notice by Merging. Such license is assignable only to bona fide purchasers of the Systems from the Purchaser. Any license of copyright relating to software contained in the Systems is restricted solely to the use of such software in the Systems.

12.3 The Purchaser acknowledges that the manual supplied by Merging to the Purchaser with the Systems is the property of Merging and no part of the manual may be reproduced or transmitted in any form or by any means, electronic or mechanical for any purpose without the prior written permission of Merging.

12.4 Any license of copyright relating to software contained in the Systems is restricted solely to the use of such software in the Systems.

13. Warranties and Exclusions of Liability

13.1 The Purchaser confirms that he is relying on no terms, conditions or warranties other than those expressly set out herein. All terms, conditions and warranties, which may be implied by law, are hereby excluded.

13.2 Subject to any mandatory law or regulation and excepting any liability of Merging for death or personal injury arising from Merging’s negligence, Merging will not be liable for any costs, claims damages or demands arising from any personal injury, loss or damage to Systems whatsoever occurring as a result of either an act or omission by Merging, its distributors or agents and in no case will Merging be liable for consequential loss or damage or loss of profit.

13.3 If within 12 months of delivery, the Systems sold as new fail due to faults in manufacture or workmanship, then Merging shall at its discretion repair or replace such Systems at its own cost provided that the Customer obtains a Return Authorisation and provides product number and date, product serial number, a description of the product failure, and returns the Systems.

13.4 If Systems are sold expressly containing exchange parts, clause 13.3 shall apply but only for three months from delivery.

13.5 If Systems are sold expressly containing upgraded or modified components, or containing second hand or non OEM components, clause 13.3 shall apply but only for three months from delivery.

13.6 The warranty contained in clauses 13.3 to 13.5 inclusive does not extend to:-

a) any software contained in the Systems;

b) any peripherals not manufactured and sold as a Merging product;

c) the cost of removal, reinstallation, any customs duties, insurance, storage fees, or loss of time due to failure of a Product; or

d) any failure which Merging determines, in its sole discretion to be the result of abuse, neglect, alteration, or repair by unauthorised personnel.

13.7 The Purchaser shall at its own expense provide electrical power for the Systems of a quality and at locations specified by Merging. Merging shall not be liable for any loss or damage incurred resulting from the insufficient availability of power on the Purchaser’s premises.

14. Indemnity

The Purchaser shall indemnify Merging against any costs, claims, proceedings or demands (including any reasonable legal costs or the cost of any bona fide out of court settlement as the result of a claim against Merging) arising from any act or omission of the Purchaser other than the resale of the Systems on terms substantially similar to these terms.

15. Force Majeure

Merging shall be under no liability for any delay or failure to perform in the event that the manufacture, supply or delivery of the Systems is prevented or delayed by any acts or circumstances beyond Merging ’s reasonable control including but not limited to acts of God, legislation, war, fire, drought, failure of power supply, lock-out or strike.

16. Waiver

Any failure by Merging to enforce at any time any of the provisions of these Terms and Conditions of Sale or any other contractual rights existing between the parties this shall not be construed to be a waiver by Merging of any of its contractual rights.

17. Assignment

The Purchaser shall not assign or sub-contract its obligations under the contract without Merging ’s consent in writing.

18. Severance

If the Court shall strike out or override any part of these terms and conditions which it considers unreasonable, invalid or unlawful (whether an entire clause or only part of one) the remainder of these terms and conditions shall continue in force as if the offending part had never been contained in it.

19. Governing Law

The interpretation and application of these Terms and Conditions shall be in accordance with Dutch law and both Parties hereby agree to submit to the exclusive jurisdiction of the Dutch ( Amsterdam) Courts.