TERMS & CONDITIONS OF SALE
These terms are the sole terms that govern the sale of goods and services between RED Digital Cinema, LLC (“RED”) and you (“the Buyer”). They shall be to the exclusion of all other terms and conditions (including any terms and conditions which the Buyer purports to apply under any document) and prior agreements or arrangements between the parties. By agreeing to these terms and conditions, the Buyer represents that it is a professional and/or is acting for the purposes which fall within his trade, business, craft or profession.
1. APPLICATION OF TERMS
A. Each order for products by the Buyer from RED shall be deemed to be an offer by the Buyer to buy goods subject to these terms and conditions.
B. No order placed by the Buyer shall be deemed to be accepted by RED until an acknowledgement of order is issued by RED or (if earlier) RED delivers the products in accordance with condition 3.
C. Any written quotations given before the acknowledgement of order shall expire thirty (30) calendar days from the date of quotation unless withdrawn in writing sooner. Verbal quotations are provided for budgetary guidance only. Unless otherwise specifically stated all quoted prices are in Euro (EUR (€)) or GBP (UK Pound Sterling).
2. PRICE AND PAYMENT
A. The price payable for the products shall be the price as stated by RED at the time of order. For information on the prices applicable to the products please contact RED on the contact details contained on RED’s website. RED specifically reserves the right to change the prices of its products at any time and without notice.
B. Unless expressly stated otherwise the price payable for the products shall be exclusive of VAT (if applicable), duties, and carriage and freight if delivery is requested or required.
C. All orders must be paid in full prior to shipment via wire transfer, cash equivalent (such as cashier’s cheque or personal cheque drawn from a recognised bank), or credit card. Order must be paid in full within five (5) business days of order confirmation or the order will be cancelled and the product will be released back to open inventory and may not be available thereafter. Credit card payment via VISA or MASTERCARD is provided as a convenience with valid credit card authorizations. Please contact RED for ‘Remit To’ information when transferring bank to bank payments.
D. No more than three separate credit cards may be used per order. RED reserves the right to reject any order. RED will credit or refund any payments made if RED rejects the order.
E. All orders are payable in Euro (EUR (€). Orders may also be payable in GBP (UK Pound Sterling) for UK customers.
3. DELIVERY & ACCEPTANCE
A. All product shipments shall be made DDP (Incoterms 2010) from a RED facility. Title and risk of loss shall pass to the Buyer upon delivery. Buyer shall be responsible for freight and VAT (if applicable) paid to RED prior to shipment.
B. All shipments will be through RED’s shipping account and no other account or shipping method may be used.
C. Any dates specified by RED for delivery of the products are intended to be an estimate without commitment and time shall NOT be of the essence in relation to the same. To this regard the Buyer and RED agree that the 30 day period of performance stated in article 18 of Directive 2011/83/EC of the European Parliament and of the Council of 25 October 2011, as may be implemented by EU member states, or any equivalent national regulation, shall not apply. RED will not be liable for any loss, damages or penalty resulting from delay in delivery. If products are unavailable, RED will have no obligation to provide substitute goods and RED’s sole liability will be to return any deposit or price paid for the unavailable product.
D. Acceptance of the product by the Buyer shall occur no later than the end of the seventh working day after the Buyer receives the Products on the basis that shipments shall be made “ex works” (Incoterms 2000) from the RED Facility. Products not rejected during this period shall be deemed accepted, and all returns shall be handled in accordance with condition 4 (Cancellation & Returns). Subject to the right to cancel under condition 4.A products cannot be rejected by Buyer based on criteria that were unknown to RED or based on test procedures that RED does not conduct.
4. CANCELLATION & RETURNS
A. The Buyer has the right to cancel the contract at any time up to the end of tenth working day after the date the Buyer receives the products or up to the end of the tenth working day from the date of purchase (whichever is the later), provided that the products are in an unused and unopened condition. To this regard the Buyer and RED agree that the 14 day period of right of withdrawal stated in article 9 of Directive 2011/83/EC of the European Parliament and of the Council of 25 October 2011, as may be implemented by EU member states, or any equivalent national regulation, shall not apply.
B. To exercise the right to cancel, the Buyer must give written notice to RED by hand or post, fax or e mail, at the address, fax number or e mail address shown in the order acknowledgement, giving details of the products ordered and (where appropriate) their delivery.
C. If the Buyer exercises their right of cancellation after the products have been delivered, the Buyer will need to obtain a Return Merchandise Authorization (“RMA”) from RED which will identify the address to which the unused and unopened products are to be returned.
D. Upon receipt of the RMA the Buyer will, within ten (10) days from the date the RMA is issued, be responsible for delivering the unused and unopened products to RED at their own cost and in the original shipping materials. All product received ten (10) days after the RMA was issued will not be considered eligible as a return for credit and RED will be entitled to return the products to Buyer at the Buyer’s cost.
E. Once you have notified RED that you are cancelling the agreement, and subject to condition 4.D, 4.F and 4.G, RED will refund or re-credit you within 30 days for any sum that has been paid by you or debited from your debit or credit card for the products.
F. If the products are used and opened and the factory seal on the product has been broken, RED reserves the right to refuse a refund under conditions 4.C to 4.E unless and until RED has carried out such evaluations and test of the product as is deemed necessary to ascertain the re-saleability of the product.
G. Following completion of an evaluation under condition 4.F or indeed in respect of any return of the products pursuant to your cancellation RED shall be entitled (in their absolute discretion) to deduct any one or more of the following from the original sums paid by the Buyer:
I. a sum equivalent to 30% of the original sale price as a restocking fee;
II. a reasonable sum representative of any damage which is caused to the products before they are returned;
III. the cost of the evaluation under condition 4.F (if applicable) which, where possible, shall be notified to the Buyer in the RMA; and
IV. the cost of shipping and handling the products.
H. In the event that the products are to be returned to RED it is recommended, for the Buyer’s protection, that the Buyer uses a traceable and insurable form of mail for shipment.
I. Notwithstanding any condition to the contrary RED will not accept a return of a camera with a run time in excess of 25 hours.
J. Buyer acknowledges that Buyer has been advised of the dangerous goods shipping requirements related to lithium ion batteries. If Buyer’s return includes a lithium ion battery, buyer agrees to have the battery shipped by a certified shipper of dangerous goods. Buyer further agrees not to attempt to ship any lithium ion battery that has been physically damaged. Buyer agrees to indemnify and hold RED and its licensors harmless from any and all liability arising from Buyer’s failure to comply with this provision.
5. RESTRICTIONS ON USE
A. The Buyer will not cause or permit the modification or reverse engineering of file formats, tools, or image processing of RED products without express written consent from RED.
B. The Buyer will not develop tools from RED products or use non-RED approved tools, products, or software with Red products without express written consent from RED.
C. Buyer will not cause or permit any reverse engineering of RED products.
D. Buyer will not provide repair services for RED products without express written consent from RED. Buyer will not use RED’s trademarks, including as part of a domain name or company name or in keywords or online search optimizations, without the express written consent from RED.
E. Certain products may be subject to a separate software license agreement from the manufacturer.
6. WARRANTIES / REPAIRS & LIABILITY
A. RED warrants to the Buyer that all products will be of good quality and workmanship and free from material defects. Upon the expiration of the time periods identified below, all liabilities of RED will terminate. In no event shall RED be liable for consequential damages. Buyer and RED agree that the provisions of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999, as may be implemented by EU member states, or any equivalent national regulations, shall not apply.
B. If the products fail to comply with the warranties given in this condition 6 and the Buyer notifies RED within the below mentioned warranty periods, RED shall without charge for parts and labour (in its sole discretion) repair or replace the defective product or refund the price of the same. The warranties given in this condition 6 are non-transferable and are only applicable to the Buyer.
C. RED’s warranties under this condition 6 do not include products that have defects or failures resulting from:
I. alterations, modifications or repairs by the Buyer or unauthorized third parties;
II. use other than normal use and operation of the product in accordance with the owner’s manual;
III. accident, disaster, neglect, abuse, misuse, improper handling or storage by the Buyer.
This includes, but is not limited to: water damage, exposure to weather conditions, operators negligence, improper electrical/ power supply, transportation damage, lack of maintenance, mould in the lenses from improper storage, droppage, modification to the camera, opening the camera body, use of non-RED cables, or third party accessories etc.
IV. The warranty does not include maintenance, cosmetic damage or other non-operating parts, and no problem found diagnosis.
V. The warranty does not cover damage caused by third party products (including approved third party products).
D. Where applicable the removal or modification of camera lens mount voids any and all warranties except when the lens mount is replaced by the Buyer with a RED approved lens mount. Breaking the seal on the camera body or removing or modifying the adjustable backfocus assembly are prohibited and voids any and all warranties.
E. RED products are compatible with RED software, RED parts, and RED products only. The use of any software, parts, or products other than RED or RED approved (product on the RED Reviewed List) software, parts, and products voids any and all warranties given in this condition 6. However, if the RED approved product directly or indirectly causes damage to the RED product, RED will not provide warranty coverage for such damage.
F. Some RED products carry more bespoke warranties and as such the warranties contained in this clause 6 shall be subject to any varying warranty terms that RED may notify the Buyer at the time of their order.
G. Standard Warranty
I. Camera and camera accessories. A standard warranty is granted to the original purchaser for a period of one (1) year, parts and labour, for the camera and camera accessories excluding batteries.
II. REDRAY and RED Rocket. A standard warranty is granted to the original purchaser for a period of one (1) year, parts and labour, for REDRAY and RED Rocket.
III. Digital Media. A standard warranty is granted for digital media for a period of one (1) year.
IV. Batteries. A standard warranty for batteries is granted for a period of ninety (90) days or until the completion of 400 charge cycles, whichever comes first.
V. Sensor Upgrade. A standard warranty is granted for sensor upgrades and associated parts and labour for a period of ninety (90) days.
VI. RED Refurbished Products. A standard warranty is granted for RED products sold as refurbished for a period of ninety (90) days.
VII. The standard warranties noted in conditions 6.G.I to 6.GVI covers parts and labour charges for products that have been returned pre-paid shipment to an Authorized Service Center.
VIII. If the Buyer wishes to make a warranty return the Buyer must notify RED and obtain an RMA in accordance with condition 4.C. Upon receipt of the RMA the Buyer will , within 10 days of receipt of the RMA, be responsible for delivering at their sole risk and cost the damaged products to such address as is noted on the RMA.
IX. Any repaired or replaced product shall be warranted as set forth in this section for a period the greater of (i) the balance of the applicable warranty period relating to such product or (ii) ninety (90) days after it is received by Buyer. Only the components that were repaired or replaced will be eligible for the 90-day period as set forth above. RED may use refurbished parts or products for warranty repair or replacement. Any parts or products replaced during warranty repair are the property of RED and will not be returned to Buyer.
X. The Standard Warranty effective dates for warranties under conditions 6.G.I to 6.G.VI is the date of “ex works” from the RED Facility or when Buyer picks up product at designated RED shipping facility.
H. Third-Party Warranty
I. RED does not honor warranty agreements extended by third parties. Only warranty agreements granted by RED will be honored by RED.
I. RED Re-Certified Product Warranty
In this condition “Customer” is defined as an entity who obtained RED product by other means than directly from RED. Product re-certification is only available to a Customer and is limited to a one re-certification per Customer upon a change of ownership. A Customer will be required to register the product with RED.
I. A product that is not possessed by the original Buyer may be sent to an Authorized RED Service Center for an evaluation fee of £75.00.
II. RED will provide a quotation for the re-certification of the product to existing RED product specifications at time of repair. The Customer is responsible for all costs associated with such re-certification, such as troubleshooting, diagnosis, repair, test, calibration, and shipping costs.
III. RED may use refurbished parts for non-warranty repair. Any parts replaced during non-warranty repair or upgrades are the property of RED and will not be returned to Buyer.
IV. Upon completion of re-certification, Customer may be offered a RED Re-Certified Product Warranty for an additional cost.
V. A RED Re-Certified Product Warranty is valid for a period of ninety (90) days for the camera and camera accessories after the warranty is accepted by the Customer. RED Re-Certified Product Warranty is not available for Digital Media and Batteries.
J. Non-Warranty Repair
I. A Product that no longer qualifies for Warranty Repair may be sent to an Authorized RED Service Center for an evaluation fee of £75.00.
II. RED will provide a quotation for the repair of the product. The Customer is responsible for all costs associated with such refurbishment, such as troubleshooting, diagnosis, repair, test, calibration, and shipping costs.
III. Any repaired or replaced product shall be warranted for ninety (90) days after it is received by Buyer providing always that only the components that were repaired or replaced will be eligible for the 90-day warranty period. RED may use refurbished parts for non-warranty repair. Any parts replaced during non-warranty repair or upgrades are the property of RED and will not be returned to Buyer.
K. Optional Extended Warranty
An optional extended warranty (known as the “RED Armor Warranty”) is available on certain RED products, excluding Digital Media and Batteries, at additional cost. The availability and extent of RED Armor Warranty is subject to the following terms:
I. RED Armor Warranty may only be purchased:
a. by either the original purchaser of the applicable RED product prior to delivery of the RED product or by a person who has obtained a RED Re-Certified Product Warranty (“the Relevant Person”);and
b. once during the lifetime of any given product that is purchased.
II. Once purchased, the RED Armor Warranty provides the Relevant Person with an additional warranty for a period of time specified on the product invoice, which shall run from the date upon which the applicable standard warranty ends.
III. Once purchased the RED Armor Warranty is a non transferable warranty and as such the extended warranty it provides shall automatically and immediately terminate if the RED product is sold by the Relevant Person.
IV. The RED Armor Warranty covers parts and labour charges for products that have been returned pre-paid shipment to an Authorized Service Center.
V. If the Relevant Person wishes to make a warranty return under RED Armor Warranty the Relevant Person must notify RED and obtain an RMA in accordance with condition 4.C. Upon receipt of the RMA the Relevant Person will, within 10 days of receipt of the RMA, be responsible for delivering at their sole risk and cost the damaged products to such address as is noted on the RMA.
VI. In the event of a claim covered by the RED Armor Warranty, RED will repair or replace (at RED’s sole discretion) the RED product with a new, rebuilt or refurbished product of equal or similar features and functionality.
VII. Any repaired or replaced product shall be warranted as set forth in this section for a period the greater of (i) the balance of the RED Armor warranty period or (ii) ninety (90) days after it is received by the Relevant Person. Only the components that were repaired or replaced will be eligible for the 90-day period as set forth above. Any parts replaced during warranty repair are the property of RED and will not be returned to the Relevant Person.
VIII. The provisions of clause 6.C, 6.D and 6.E shall continue to apply to the RED Armor Warranty.
L. Maximum Warranty Period. Notwithstanding any optional extended warranty and/or Re-Recertified Product Warranty, the maximum warranty period for any RED product is five (5) year from the original purchase date.
M. EXCEPT AS SPECIFICALLY SET FORTH ABOVE, ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATION OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO THE RED PRODUCT OR ANY COMPONENT THEREOF ARE, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, EXCLUDED FROM THIS AGREEMENT INCLUDING ANY WARRANTY AS TO THE PERFORMANCE OR RESULT OF THE RED PRODUCT.
N. Storage Fees. Storage fees will be charged on products that are not claimed within thirty (30) days of repair or evaluation. Storage fees will be charged at RED’s then current storage fee rates. Products not claimed after six (6) moths will be considered abandoned and will become the property of RED automatically, without notice or charge. Buyer will indemnify RED against any claim by a third party in relation to RED invoking its rights under this clause.
A. Customer Source Inspection. A fee of £75.00 will be charged for any order requiring customer source inspection or receipt of goods, at the RED facility.
B. No-Trouble Found Inspection Fee. Any product sent to RED for inspection or evaluation where RED finds no defects or problems with RED product will be subject to a No-Trouble Found Inspection Fee of £75.00. The No-Trouble Found Inspection policy is in place to encourage the Customer to exhaust all technical support resources before shipping product to RED.
8. LIMITATION ON LIABILITY
In this condition the term “RED” refers to RED Digital Cinema, LLC its officers, employees, other representatives and licensors.
A. Subject to condition 8.E:
I. RED’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with this agreement shall be limited to lower of the amounts paid to RED for products supplied under the specific purchase order or the sum of £16,000.00.
II. RED shall not be liable to you for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused and whether RED were notified of the possibility of such damage) which arise out of or in connection with the purchase, use or otherwise of the products.
III. RED shall not be liable for any property damage, lost time, or lost data resulting from the failure of any product or from delays in services or the inability to render service.
B. For the avoidance of doubt RED shall not be liable for any loss, claim or damages whatsoever whether direct, indirect or consequential arising out of any late delivery of the products nor shall they be liable for the cost of procurement of substitute goods by the Buyer.
C. The limitation set forth herein shall apply:
I. to all liabilities that may arise out of third-party claims against the Buyer;
II. where the damages arise out of or are related to this agreement; and
III. notwithstanding any failure of essential purpose of any limited remedy.
D. For the avoidance of doubt the Buyer must observe and comply with all applicable regulations and legislation, including obtaining all necessary customs, import or other permits to purchase the products from RED. The importation or exportation of the products to the Buyer may be prohibited by certain national laws. RED makes no representation and accepts no liability in respect of the export or import of the products to the Buyer.
E. NOTHING IN THESE TERMS & CONDITIONS EXCLUDES OR LIMITS THE LIABILITY OF RED FOR DEATH OR PERSONAL INJURY CAUSED BY THEIR PROVEN NEGLIGENCE.
A. The Buyer shall indemnify, defend, and hold RED and RED’s officers, agents and other representatives and licensors harmless from all demands, claims, actions, causes of actions, proceedings, suits, assessments, losses, damages, liabilities, settlements, judgments, fines, penalties, interest, costs and expenses incurred (including fees and disbursements of legal counsel) of every kind (i) based upon personal injury or death or injury to property to the extent any of the foregoing is proximately caused by the misuse of the product or by the negligent or willful acts or omissions of the Buyer its officers, employees, agents or other representatives, or (ii) based on any breach of this agreement by the Buyer in particular any use of RED’s proprietary rights in the product as identified in condition 10.A.
10. PROPRIETARY INFORMATION
A. RED retains for itself and its licensors all proprietary rights, including without limitation all patent, trademark, trade secret, copyright and other intellectual property rights in and to all RED designs, manufacturing processes, engineering details, and other data pertaining to any product sold except where the rights have been assigned pursuant to a written agreement with a corporate officer of RED.
B. The products are offered for sale and sold by RED on the condition that such sale does not convey any right, express or implied, stated or otherwise, under any intellectual property or manufacturing process. RED and its licensors expressly reserves all intellectual property rights in the product.
11. DATA PROTECTION
A. RED will take all reasonable precautions to keep the details of your order and payment secure (included appropriate technical and organisational safeguards) but unless RED is negligent, RED will not be liable for unauthorized access to information supplied by the Buyer.
B. RED will use the information the Buyer provides for the purpose of fulfilling the Buyer’s order. Buyer may opt to receive, by, including but not limited to, email, telephone, text message or other electronic communication means, from time to time, information about other RED products and offers that may be of interest to the Buyer.
C. The Buyer may
I. stop RED from sending them RED product and offer information;
II. correct information about the themselves; or
III. request the deletion of such information
by notifying RED of this fact in writing to RED Europe Limited, Pinewood Studios Road, Iver Heath, Buckinghamshire, ENGLAND, SL0 0NH.
12. WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT
A. The Buyer agrees to finance the cost of the collection, treatment, recovery and environmentally sound disposal of WEEE (as defined under The Waste Electrical and Electronic Equipment Regulations 2013).
B. The Buyer represents that it is a business and not a private household.
A. Waiver. No forbearance or delay by RED in enforcing its rights shall prejudice or restrict the rights of RED and a failure of RED to insist upon strict performance of any terms and conditions herein shall not be deemed a waiver of any subsequent default of terms and conditions thereof.
B. Severability. If any of the terms and conditions of this Agreement are held to be invalid under any applicable statute or rule of law, they shall, to that extent, be deemed omitted but the remaining provisions shall continue in full force and effect.
C. Third Party Rights. A person who is not a party to this agreement shall not be entitled to enforce any term pursuant to the Contracts (Rights of Third Parties Act) 1999.
D. Force Majeure. RED shall have no liability under or be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from circumstances beyond the reasonable control of that party.
E. Agency, Partnership. Nothing in this agreement shall be held, implied or deemed to constitute a partnership, joint venture, agency or other relationship between the parties.
F. Complete agreement. The terms and conditions set forth herein comprise the entire agreement between RED and the Buyer and the Buyer acknowledges that they have not entered into this agreement on the basis of any representation that is not expressly incorporated into these terms or the purchase orders provided by RED from time to time.
14. GOVERNING LAW AND JURISDICTION
A. The sale of any RED product to the Buyer is considered to take place in California and therefore this agreement and any dispute arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the laws of the State of California, USA and RED and the Buyer submit to the exclusive jurisdiction of the state and federal courts located in Orange County, California, USA and waive all rights to have disputes brought elsewhere.
B. For the avoidance of doubt this agreement will not be governed by the conflict of law rules or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.