Terms & Conditions - Radio One Inc

General

Unless otherwise agreed to in writing, these Terms and Conditions will govern all purchase of delivery of Equipment and Deliverables from Radio One to Customer as defined herein. Radio One reserves the right to amend these Terms & Conditions from time to time, which are available at https://www.radio1inc.com.

Definitions

Agreement means the agreement between the Parties constituted by the documents specified in clause 3 of these Terms and Conditions.

Commencement Date means the date specified in the Proposal as the commencement date for Rental Equipment.

Confidential information means all information and materials, in any forms, which comes into a Party’s possession by the other Party pursuant to, or as a result of or in performance of the Deliverables, excluding information:

which at the time of its first disclosure or observation under the Proposal was in the public domain;
after disclosure or observation in connection with the Proposal and its Deliverables, comes into the public domain otherwise than by disclosure in breach of these Terms and Conditions;
which is received by either Party from a third party who has the right to provide the information;
which was already in the receiving Party’s possession or knowledge without restriction prior to its disclosure or observation; or
which the disclosing party is required by law to disclose.

Customer means the entity defined in the Proposal that is purchasing the Deliverables from Radio One. In the case of a company, Customer includes its permitted successors and assigns and in the case of a natural person includes their heirs, executors, administrators and permitted assigns.

Equipment means the hardware purchased or rented by Customer from Radio One as defined in the Proposal.

Expiry Date means the end of the Rental Period and defined as the Expiry Date in the Proposal.

Deliverables means provision of Equipment, Services, and/or other tangible or intangibles defined in the Proposal that Radio One will deliver to the Customer in exchange for the Fee. This includes any qualifications, assumptions and justifications as stated in the Proposal. Anything matter not specifically noted in the Proposal are excluded.

Fee means the monies owed by Customer to Radio One for the Deliverables per pricing defined in the Proposal. The Fee does not include any incremental taxes or shipping charges that are owed by Customer.

Party constitutes Radio One or Customer and together they are noted as Parties.

Proposal means the formal quotation provided to Customer by Radio One that details the Deliverables and Fees. Proposal is deemed accepted by Customer upon receipt of Customer purchase order or purchase requisition, receipt of advanced payment, or another notice to proceed provided in writing by Customer.

Quotation Number means the number referencing the quotation in the Proposal.

Radio One means Radio One, Inc., its affiliates, and their respective officers, directors, employees, subcontractors, agents, successors, and assigns.

Rental Equipment means the Equipment as defined in the Deliverables that will be rented to Customer for the Rental Period.

Rental Period means the term in months that commences upon the Commencement Date and ends on the Expiry Date as defined in the Proposal, or when the Equipment is returned to Radio One, whichever occurs last.

Replacement Fee means the cost to Radio One to replace Rental Equipment. For the avoidance of doubt, the Replacement Fee is the cost to replace the Rental Equipment with new replacements and not Radio One’s book value.

Restocking Fee means the monies the customer will owe to Radio One in the event of an order cancellation or return of Equipment.

Site means the physical location designated by Customer where Deliverables will be delivered, installed and/or performed.

Special Conditions means any additional terms and conditions as agreed to between the Parties that are not reflected in the original Agreement and are appended to this Agreement.

Terms and Conditions means these Terms and Conditions defined herein that will govern the arrangement between Radio one and Customer and includes the Proposal and any other noted schedules or appendices as stated in the Proposal.

Agreement

The Agreement comprises of the following documents:

These Terms and Conditions;
Radio One Proposal;
Any schedules or appendices attached to the Proposal and stated as attachments;
Customer Purchase Order or formal written approval to proceed with the Proposal. For avoidance of doubt any terms and conditions presented by the Customer in their Purchase Order or formal written approval shall not be construed as part of the Agreement, unless expressly incorporated through a schedule of Special Conditions.

Fees and Payment

Radio One will define the Fees and Deliverables in the Proposal to Customer.
Fees shall be expressed in United States Dollars.
Fees are subject to change upon notice to Customer.
Customer is responsible for all shipping charges on Equipment and return of Rental Equipment.
Unless otherwise defined in the Proposal, payment will be due from Customer to Radio One within thirty (30) days of invoice date.
Radio One reserves the right to require payment in advance of order placement at any time.
Overdue invoices will be subject to interest charges of 2% per month.
Customer shall be liable to Radio One for all reasonable costs, expenses or losses incurred as a result of Customer default, including, without limitation the obligations set out in the Proposal, any debt collection, mercantile agent and legal costs.
Fees do not include any excise, sales, lease, use, property, or other taxes, assessments, duties, or regulatory charges, all of which will be paid by Customer, except as exempt by law. If applicable, Customer shall provide a valid tax-exempt certificate prior to product shipment or service completion.
Neither par nor the whole of any invoiced Fee shall be withheld from Raio One due to non-payment to the customer by the Customer’s client, or any other reason.

Cancellations and Returns

Cancelled order or return of purchased Equipment by Customer is subject to a 20% restocking fee.
Return requests must be made within thirty (30) days of invoice date for Equipment supplied.
Customer must notify Radio One within fourteen (14) days of delivery in the event any Equipment delivered to Site is inoperable so to be eligible for credit or exchange.
Inoperable Equipment returned after fourteen (14) days will be processed as warranty repairs.
Equipment returned must be new, unmodified and in the original packaging in order to receive allowable credit.
Customized or custom-made Equipment, including by way of illustration, custom cabinets, tuned duplexers, computer equipment, software, BDAs and built-to-order repeaters, are not eligible for return.
Equipment that has been determined, at the sole discretion of Radio One, outside the return policy requirements as stated herein will be returned to Customer or disposed of at Customer’s expense.

Acceptance and Change Orders

Should Customer accept Radio One’s Proposal, they must provide Radio One a purchase order, or formal written notification of acceptance, which must include a reference to the Quotation Number.
Either Party may request changes to the Proposal by submitting a change order to the other Party. If a requested change causes an increase or decrease in the Deliverables, appropriate adjustments to the Fees and Deliverables will be made and the original Proposal will be adjusted to reflect the changes.
Customer must provide Radio One written approval (or non-approval) pursuant to clause 6.1.

Termination

Either Party may terminate the Proposal and its Deliverables in whole or part with immediate effect by notice in writing if the other Party:
- is in breach of any term of this Agreement;
- becomes insolvent, is liquidated or dissolved, amalgamated, merges, transfers substantially all its stock or assets, ceases or threatens to cease doing business, or assigns rights or property for the benefit of creditors; or
- a petition is filed by or against Customer under any bankruptcy or insolvency law.
The Customer may terminate the Agreement prior to completion of the Deliverables, but after any minimum term specified in the Proposal, subject to providing Radio One thirty (30) days written notice of intention to terminate.
- Radio One may claim, in its sole and absolute discretion, the costs, losses and expenses incurred by Radio One as a result of termination under this clause 7.2.
If the Agreement is terminated pursuant to this clause 7, Customer will pay Radio One any Fees owed up to the date of termination and any costs, expenses or losses incurred by Radio One as a result of the termination.

Delivery of Equipment

Radio One will deliver purchased Equipment to the Site designated by Customer.
Delivery, title transfer and risk of loss will occur at the earlier of:
- Customer’s physical receipt of the equipment; or
- upon Radion One’s transfer of the Equipment to a transportation agent for shipment (FOB shipping point).
Customer must provide an authorized individual at the Site to receive delivery of the Equipment.

Site Access and Conditions

Customer will be responsible for providing all necessary permits, licenses, and other approvals necessary for the Deliverables at each applicable Site, including for Radio One and its related subcontractors to perform the Deliverables, and for facilitating Radio One’s access to the Sites.
Where Radio One’s personnel are required to access the Customer’s Site to provide the Deliverables, the Customer is obligated to ensure that all Sites are safe, secure and comply with industry best standards. The Site/s must have:
- adequate physical space, temperature regulation and other environmental conditions;
- adequate and appropriate electrical power outlets, distribution, equipment and conditions; and
- adequate telephone or other communication lines, all for the installation, use and maintenance of the Deliverables;
Radio One may, but is not required to, inspect the Site, and notify Customer of any apparent deficiencies in advance of performing the Deliverables.
If Radio One determines in its sole and reasonable discretion that the Site conditions are materially different from the conditions anticipated in it Proposal, Radio One will negotiate in good faith a change order with modified Deliverables and Fees.

Rental Equipment Terms

During the Rental Period, Customer must assume complete responsibility for control of physical operation of Equipment.
Customer shall comply with all legal requirements relating to the safe use of the Equipment, including compliance with any safety guidelines and/or instructions provided by Radio One.
Customer shall not allow the Equipment to be used by any unauthorized person nor will Customer abandon the Equipment.
Customer shall immediately advise Radion One of any damage to, or Defect in, the Equipment and shall not permit any person not duly authorized by Radion One to repair or maintain Equipment, other than to replace batteries and only with those batteries supplied by Radio One.
Customer must not connect accessories or other equipment which are not supplied by Radio One to the Equipment or make alternations to Equipment without the written consent of Radio One nor will Customer remove, obscure or deface any identifying mark, label or device on the Equipment.
Upon the Equipment becoming non-functional or Defective, the Customer shall, at the Customer’s expense, deliver the Equipment to Radio One or Radio One’s authorized agent, for adjustment, maintenance, service or repair.
Customer will exercise care to prevent damage to or destruction or loss of Equipment (including ensuring the secure lock-up of the Equipment) and in the event of loss or destruction of, or damage to, Equipment or it is becoming non-functional or Defective by reason of the neglect or default of Customer then, Customer shall pay the Replacement Fee to Radio One.
Customer will permit Radio One upon request to inspect Equipment at all reasonable times.
Should Customer fail to pay for the Equipment within the period of credit (if any) extended by Radio One to Customer, Radio One may recover possession of the Equipment at any place owned, possessed, occupied or controlled by Customer and Customer agrees that Radio One has an irrevocable license to do so without incurring liability to Customer or any other person.
Upon completion of the Rental Period, or the earlier termination, Customer shall return the Equipment in a clean and usable condition to Radio One’s defined premises.
If Customer returns the Equipment in a worse condition that can be accounted for by fair wear and tear, Radio One may charge Customer for cleaning, reconditioning, renewing or replacing the Equipment as it considers necessary.
If Customer intends to continue to rent the Equipment beyond the original Rental Period, the Customer must by written notice advise Radio One thirty (30) days prior to the completion of the Rental Period; of which Radio One would not unreasonably object to.
If Customer retains the Equipment beyond the defined term without prior written approval pursuant to clause 10.12, Radio One reserves the right, at its absolute and sole discretion, to charge for the additional period, or invoice Customer for the Replacement Fee of the Rental Equipment it retained.
Radio One will not credit rental charges for Rental Equipment returned prior to the end of the Rental Term and may charge a cancellation charge of up to 80% of the remaining amount of the Rental Term.
Title and ownership of the Equipment shall at all times remain with Radio One.
Customer is responsible for any loss or damage caused to the Equipment during the Rental Period and will indemnify Radio One against any loss of or damage to the Equipment whatsoever, or howsoever caused.
If Customer loses any Equipment, Radio One will invoice Customer for the Replacement Fee, and the Fee for renting the lost Equipment will continue to accrue until Customer pays the Replacement Fee.
On return of Rental Equipment at the end of the Rental Term, Customer is obligated to ensure that the Equipment is packed properly and in accordance with any shipping instructions.
If the Rental Equipment is damaged in transit, Customer is liable for those damages up to the Replace Fee of the Equipment damaged, destroyed, or lost.

Confidentiality

Neither Party shall use Confidential Information for any purpose at any time other than in connection with the Proposal and its Deliverables. The Parties agree to protect Confidential Information using at least as much care they use to protect their own Confidential Information and restrict disclosure to only those employees or agents who require the information for purposes in connection with the Proposal and Deliverables.
Either Party is entitled to seek injunctive or such other equitable relief as necessary to prevent or mitigate a breach of the confidentiality obligations defined in this Agreement.
Either Party may disclose Confidential Information only to the extent required by law, including a judicial or legislative order or proceeding.

Non-Solicitation

Upon acceptance of the Proposal, and for one (1) year after the Deliverables have been met, Customer will not solicit any Raio One employee directly or indirectly involved with completion of the Deliverables without Radio One’s written consent. For avoidance of doubt this includes one (1) year after the Expiry Date of the Rental Period.

Subcontractors

Customer acknowledges and agrees that Radio One may use subcontractors to perform any of the Deliverables defined herein.
Subject to clause 13.1, if a subcontractor is used to perform the Deliverables, any directions or communications for that subcontractor must be directed in the first instance to Radio One.

Non-Discrimination

Both Parties agree to abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-751.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that parties take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.

Warranties

EXCEPT FOR THE EXPRESS AND PASS-THROUGH WARRANTIES IN THIS AGREEMENT, PRODUCTS AND SERVICES PURCHASED HEREUNDER ARE PROVIDED “AS IS” AND WITH ALL FAULTS. WARRANTIES SET FORTH IN THE AGREEMENT ARE THE COMPLETE WARRANTIES FOR THE EQUIPMENT AND SERVICES AND RADIO ONE DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MECHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND QUALITY. RADIO ONE DOES NOT REPSRESENT OR WARRANT THAT USE OF THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, ERROR-FEE, OR FREE OF SECURITY VULNERABILITIES, OR THAT THEY WILL MEET CUSTOMER’S PARTICULAR REQUIREMENTS.

Limitation of Liability

THE RADIO ONE WILL NOT BE LIABLE IN CONNECTION WITH PURCHASES, RENTALS, OR SERVICES PRVIDED FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR REVENUES, EVEN IF RADIO ONE HAS BEEN ADVISED BY CUSTOMER OR ANY THIRD-PARTY OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND WHETHER OR NOT SUCH DAMAGES OR LOSSES ARE FORESEEABLE.
THE TOTAL AGGREGATE LIABILITY OF RADIO ONE WILL NOT EXCEED THE FEES SET IN THE PROPOSAL UNDER WHICH THE CLAIM AROSE. NOTWITHSTANDING THE FOREGOING, FOR ANY SUBSCRIPTION SOFTWARE OR FOR ANY RECURRING SERVICES, RADIO ONE’S TOTAL LIABILITY FOR ALL CLAIMS RELATED TO SUCH PRODUCT OR RECURRING SERVICES IN THE AGGREGATE WILL NOT EXCEED THE TOTAL FEES PAID FOR SUCH SUBSCRIPTION SOFTWARE OR RECURRING SERVICE, AS APPLICABLE, DURING THE CONSECUTIVE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FROM WHICH THE FIRST CLAIM AROSE.
RADIO ONE WILL HAVE NO LIABILITY FOR DAMAGES ARISING OUT OF:
- CUSTOMER DATA, INLCUDING ITS TRANSMISSION TO RADIO ONE OR ANY OTHER DATA AVAILABLE THROUGH THE DELIVERABLES;
- CUSTOMER-PROVIDED EQUIPMENT, NON-RADIO ONE CONENT, THE SITES, OR THIRD-PARTY EQUIPMENT, HARDWARE, SOFTWARE, DATA OR OTHER THIRD-PARTY MATERIALS, OR THE COMBINATION OF PRODUCTS AND SERVICES WITH ANY OF THE FOREGOING;
- LOSS OF DATA OR HACKING, RANSOMWARE, OR OTHER THIRD-PARTY ATTACKS OR DEMANDS;
- MODIFICATION OF PRODUCTS OR SERVICES BY ANY PERSON OTHER THAN RADIO ONE;
- RECOMMENDATIONS PROVIDED IN CONNECTION WITH OR BY THE PRODUCTS AND SERVICES;
- DATA RECOVERY SERVICES OR DATABASE MODIFICATIONS; OR
- CUSTOMER’S OR ANY AUTHORIZED USER’S BREACH OF THESE TERMS AND CONDITIONS OR MISUSE OF THE PRODUCTS AND SERVICES.
Radio One is not obligated to remedy, repair, replace, or refund the purchase price for the aforementioned disclaimed issues, but if Radio One agrees to provide Deliverables to help resolve such issues, Customer will reimburse Radio One for its reasonable time and expenses, including by paying Radio One any Fees set forth in the Proposal for such Deliverable, if applicable.
Customer may not bring any claims against a Radio One Party in connection with this Agreement or the Equipment and Deliverables more than six (6) months after the date of accrual of the cause of action.

Indemnification

Customer will defend, indemnify, and hold Radio One Parties harmless from and against any and all damages, losses, liabilities, and expenses (including reasonable fees and expenses of attorneys) arising from any actual or threatened third-party claim, demand, action or proceeding arising from or related to:
- Customer-provided equipment, Customer data, or non-Radio One content, including any claim, demand, action, or proceeding alleging that any such equipment, data, or materials (or the integration or use thereof with the products and services) infringes or misappropriates a third-party intellectual property or other right, violates applicable law, or breaches this Agreement;
- Customer’s (or its service providers, agents, employees, or authorized user’s) negligence or wilful misconduct;
- Customer’s or its authorized user’s breach of this Agreement; and
- Any other claim arising out of the purchase, use, maintenance, instruction, operation, transportation, possession, ownership, or rental of the Equipment or Deliverables rendered hereunder, however caused or related in any other way to this Agreement, except to the extent those claims were caused or contributed to through Radio One’s gross negligence.
- Neither Party is liable to the other for any indirect or consequential loss, including pure economic loss, loss of profit, loss of revenue or loss of use.

Intellectual Property

All Intellectual Property Rights subsisting in the Deliverables or Equipment designs, materials, documents, specifications or methods of working created under the Agreement or otherwise by or on behalf of Radio One for the purposes of the Deliverables is and remains the property of Radio One.
Each Party retains ownership of its Intellectual Property which was in existence prior to the date of the Proposal, and which was not created in connection with this Agreement.
Radio One grants to Customer a non-exclusive, royalty-free license to use the Radio One Intellectual Property solely for the purpose of using the Equipment and Deliverables. Customer must not infringe any Intellection Property Right of Radio One and indemnifies Radio One for any such infringement.

Force Majeure

Radio One shall not be liable for default or failure in performance of obligations pursuant to the Proposal and this Agreement resulting directly or indirectly form acts of god, civil or military authority, acts of public enemy, ware, accidents, fires, explosions, earthquakes, floods, the elements, strikes, industrial disputes, shortage of suitable parts, components, materials or any other cause beyond the reasonable control of Radio One.

Governing Law

All matters relating to this Agreement are governed by the laws of the State of Florida, unless Customer is the United States Government (or an agency thereof), in which case all matters will be governed by the laws of the State in which the Deliverables are provided.

Compliance with Laws

Each Party will comply with applicable laws in connection with the performance of its obligations relating to the Deliverables under this Agreement, including that Customer will ensure its and its authorized user’s use of the Equipment and Deliverables complies with law (including privacy laws), and Customer will obtain any FCC and other licenses or authorizations (including licenses or authorizations required by foreign regulatory bodies) required for its and its authorized users’ use of the Equipment and Deliverables.

Entire Agreement

Radio One’s offer to sell the Deliverables is expressly conditional upon Customer’s acceptance of this Agreement. Except where Customer and Radio One have included Special Conditions to this Agreement and are incorporated into this Agreement.
This Agreement controls and supersedes any terms contained in any request for proposal, purchase order, acknowledgement or other communication previously or hereafter provided by Customer to Radio One.
No addition or different or conditional terms by Customer will be on any force or effect.
Radio One offers the Deliverables at the Fee as stated in the quotation in the Proposal; and any other document Customer may provide to Radio One, including its purchase order or other document, will not apply to this transaction. This is true regardless of whether Customer’s purchase order or other document contains language that attempts to supersede or cancel this Agreement.
By accepting delivery of Radio One’s Deliverables or allowing Radio One’s Deliverables to commence, Customer has accepted this Agreement.
This Agreement, together with other documents pursuant to clause 3.1, will be the entire agreement between Radio One and Customer on the subject of the transaction described in this Agreement and the Proposal.
This Agreement supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever, and there are no conditions that are not so contained or incorporated.