INTERMUSIC LIMITED (“THE SELLER”)
CONDITIONS OF SALE
1.1 These Conditions apply to all sales of goods (“the Goods”) by the Seller to any purchaser (“the Buyer”) and shall apply in place of and prevail over any terms or conditions contained or referred to in the Buyer’s order or in correspondence or elsewhere or implied by trade, custom, practice or course of dealing unless specifically agreed to in writing by a director or other authorized representative of the Seller and any purported provisions to the contrary are hereby excluded or extinguished.
1.2 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Seller's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the contract between the Seller and the Buyer or have any contractual force.
2.1 The Buyer's order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. 2.2 A quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or revise the same at any time prior to the Seller’s acceptance of the Buyer’s order.
2.3 The Seller’s acceptance of the Buyer’s order shall be effective only where such acceptance is made in writing by an authorised representative of the Seller.
3.1 The price of the Goods shall be the price stated in the quotation or when no price has been quoted, or a quoted price is no longer valid the price contained in the Seller’s price list at the time of despatch. The Seller shall have the right at any time before delivery to withdraw any discount from its normal prices and/or to revise the price of the Goods to take into account increases in costs including:.
3.1.1 any factor beyond the Seller's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
3.1.2 any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered; or
3.1.3 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
3.2 Except as otherwise stated under the terms of any quotation or any price list of the Seller or unless otherwise agreed in writing between the Buyer and the Seller all prices are given by the Seller on an ex-works basis and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
3.3 Unless otherwise specified the price is exclusive of any applicable Value Added Tax and any other tax or duties payable by the Buyer which the Buyer shall additionally be liable to pay to the Seller.
4. TERMS OF PAYMENT
4.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after acceptance of the Buyer’s order for the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
4.2 Payment of invoices shall unless otherwise agreed in writing be made in full and in cleared funds without any deduction, set-off, counterclaim or withholding (except for any deduction or withholding required by law) within 7 days of the date of invoice or delivery whichever is later. Time of payment is of the essence.
The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
4.3 Interest shall be payable by the Buyer on overdue accounts at the rate which is 8% per annum above the base lending rate of the Bank of England to run from the due date for payment thereof until receipt by the Seller of the full amount whether before or after judgment.
4.4 If in the opinion of the Seller the credit-worthiness of the Buyer shall have deteriorated prior to delivery the Seller may require full or partial payment of the price prior to delivery or the provision of security for payment by the Buyer in a form acceptable to the Seller.
5.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises within a reasonable time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
5.2 Delivery dates mentioned in any quotation acknowledgement of order or elsewhere are approximate only and not of any contractual effect. Time shall not be of the essence for delivery and the Seller shall not be under any liability to the Buyer in respect of any failure to deliver on any particular date or dates if that failure is caused by a Force Majeure Event or the Buyer's failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
The Seller shall use reasonable efforts to comply with such date or dates. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
5.3 If the Buyer refuses or fails to take delivery of Goods tendered in accordance with the contract or fails to take any action necessary on its part for delivery and/or shipment of the Goods the Seller shall be entitled at its option:
5.3.1 To store the Goods until actual delivery and charge the Buyer for reasonable costs (including insurance) of storage; or
5.3.2 To terminate the contract with immediate effect, to dispose of the Goods as the Seller may determine and to recover from the Buyer any loss and additional costs incurred as a result of such refusal or failure.
5.4 Unless otherwise expressly agreed the Seller may effect delivery of the Goods in one or more instalments. Where delivery is effected by instalment each instalment shall be treated as a separate contract which may be invoiced and paid for separately and failure by the Seller to deliver any one or more instalments in accordance with these conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the contract as a whole as repudiated.
6. TITLE AND RISK
6.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
6.1.1. In case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
6.1.2. In the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, at the time when the Seller has tendered delivery of the Goods.
6.2 The Goods shall remain the sole and absolute property of the Seller as legal and equitable owner until such time as the Buyer shall have paid to the Seller the agreed price together with the full price of any other goods the subject of any other contract with the Seller.
6.3 Until such payment the Buyer shall be in possession of the Goods solely as bailee for the Seller and in a fiduciary capacity and shall store the Goods in such a way as to enable them to be identified as the property of the Seller. 6.4 Subject to the terms hereof the Buyer is licensed by the Seller to process the said Goods in such fashion as it may wish and/or incorporate them in or with any other product or products subject to the express condition that the new product or products or any other chattel whatsoever containing any part of the said Goods shall become the sole and exclusive property of the Seller and shall be separately stored and marked so as to be identifiable as being made from or with the Goods the property of the Seller.
6.5 The Buyer shall be at liberty and may in the ordinary course of its business sell and deliver the Goods to any third party as Seller’s bailee and in a fiduciary capacity and provided that the entire proceeds of sale are held in trust for the Seller and are not mingled with any other monies and shall at all times be identifiable as the Seller’s monies. The Buyer agrees immediately upon being so requested by the Seller to assign to the Seller all rights and claims which the Buyer may have against its customers arising from such sales until payment is made in full as aforesaid.
6.6 The Seller reserves the immediate right of repossession of any Goods to which it has retained title and for this purpose the Buyer hereby grants an irrevocable right and licence to the Seller and its agents to enter upon all or any of its premises with or without vehicles during normal business hours. This right shall continue to subsist notwithstanding the termination of the contract between the Seller and the Buyer for any reason and is without prejudice to any accrued rights of the Seller.
7. EXPORT SALES
7.1 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 7 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions and in the event of any inconsistency the provisions of this clause shall prevail.
7.2 In any case where the Goods are sold CIF or FOB (or other international trade term) the meaning of such term contained in Incoterms as revised from time to time shall apply except where inconsistent with any of the provisions contained in these Conditions in which case these Conditions shall prevail.
7.3 Unless otherwise agreed in writing by the Seller payment of all amounts due to the Seller shall be made prior to despatch of the Goods or be secured by an irrevocable letter of credit satisfactory to the Seller established by the Buyer in favour of the Seller and confirmed by a United Kingdom bank acceptable to the Seller. The letter of credit shall be for the contract price inclusive of any tax or duty payable by the Buyer and shall be valid for at least 6 months or such longer period as shall have been estimated by the Seller for delivery. The Seller shall be entitled to payment on presentation of the relevant documents to such bank.
7.4 Section 32 (2) of the Sale of Goods Act 1979 shall not apply. The Seller shall not be required to give the Buyer the notice specified in Section 32 (3) of that Act.
8. THIRD PARTY RIGHTS
8.1 The Buyer shall indemnify the Seller against any and all liabilities claims and costs incurred by or made against the Seller as a direct or indirect result of the carrying out of any work required to be done on or to the Goods in accordance with the requirements or specifications of the Buyer involving any infringement or alleged infringement of any rights of any third party.
8.2 The Buyer shall notify the Seller forthwith of any claim made or action brought or threatened alleging infringement of the rights of any third party. The Seller shall have control over and shall conduct any such proceedings in such manner as it shall determine. The Buyer shall provide all such reasonable assistance in connection therewith as the Seller may request. The cost of any such proceedings shall be borne in such proportions as the parties shall determine.
9. SPECIFICATIONS AND INFORMATION
9.1 Unless expressly agreed in writing by the Seller all drawings, designs, specifications and particulars of weights and dimensions submitted by the Seller are approximate only and the Seller shall have no liability in respect of any deviation there from. In particular, but without prejudice to the generality of the foregoing the Seller reserves the right to make any changes in the specifications of the Goods which are required to conform with any applicable safety or other statutory requirements.
9.2 All drawings, designs, specifications and information submitted by the Seller are confidential and shall not be disclosed to any third party without the Seller’s written consent.
10.1 In addition to any guarantees and warranties provided by the manufacturer of the Goods the Seller warrants that on delivery and for a period of twelve (12) months from the date of delivery the Goods shall:
10.1.1 be free from material defects in design materials and workmanship; and
10.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
10.2 Subject to clause 10.2.3 if:-
10.2.1 the Buyer gives notice in writing to the Seller within a reasonable time after discovery that some or all of the Goods do not comply with the warranty set out in clause 10.1;
10.2.2 the Seller is given a reasonable opportunity of examining such Goods; and
10.2.3 the Buyer (if asked to do so by the Seller) returns such Goods to the Seller's place of business.
the Seller shall at its option, repair or replace the defective Goods or refund the price of the defective Goods in full.
10.3 The Seller shall not be liable for the failure of any Goods to comply with the warranty set out in clause 10.1 in any of the following events:-
10.3.1 the Buyer makes any further use of the Goods after giving notice in accordance with clause 10.2.1;
10.3.2 the defect arises as a result of any of the causes mentioned in clause 11.1.3.
11.1 The Seller shall not be liable to the Buyer:
11.1.1. for shortages in quantity delivered unless the Buyer notifies the Seller of any claim for short delivery within 14 days of receipt of the Goods;
11.1.2. for damage to or loss of the Goods or any part thereof in transit (where the Goods are carried by the Seller’s own transport or by a carrier on behalf of the Seller) unless the Buyer shall notify the Seller of any such claim within 7 days of receipt of the Goods or the scheduled date of delivery whichever shall be the earlier;
11.1.3. for defects in the Goods caused by fair wear and tear, abnormal conditions of storage or abnormal working conditions, wilful damage, negligence, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s prior written approval;
11.1.4. for other defects in the Goods unless notified to the Seller within 1 month of receipt of the Goods by the Buyer or where the defect would not be apparent on reasonable inspection within (12) months of delivery PROVIDED THAT the Buyer shall give the Seller the opportunity of inspecting the Goods.
11.2 Where liability is accepted by the Seller the Seller’s only obligation shall be at its option to make good any shortage or non-delivery and/or as appropriate to replace or repair any of the Goods found to be damaged or defective and/or to refund the cost of any such Goods to the Buyer.
11.3 The Seller’s aggregate liability to the Buyer whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed the cost of the defective, damaged or undelivered Goods which gave rise to such liability as determined by the net price invoiced to the Buyer in respect of any occurrence or series of occurrences.
11.4 Except as expressly provided in these Conditions all conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to the Goods are hereby excluded and the Seller shall be under no liability to the Buyer for any loss damage or injury direct or indirect (including without prejudice to the generality of the foregoing consequential loss or damage, whether for loss or profit or otherwise) resulting from defective material, faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Seller its employees or agents SAVE THAT the Seller shall be liable for:
11.4.1 death or personal injury caused by the negligence of the Seller
11.4.2 fraud or fraudulent misrepresentation;
11.4.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
11.4.4 defective products under the Consumer Protection Act 1987; or
11.4.5 any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
11.5 The Seller’s prices are determined on the basis of the limits of liability set out in this Condition. The Buyer may by written notice to the Seller request the Seller to agree a higher limit of liability provided insurance cover can be obtained. The Seller shall effect insurance up to such limit and the Buyer shall pay upon demand the amount of any and all premiums. The Buyer shall disclose such information as the insurers shall require. In no case shall the Buyer be entitled to recover from the Seller more than the amount received from the Insurers. 10.6 The Seller shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of the Goods by the Seller being prevented, hindered, delayed or rendered uneconomic by reason of circumstances or events beyond the Seller’s reasonable control (Force Majeure Event).
11.6 If due to such Force Majeure Event the Seller has insufficient stocks to meet all its commitments the Seller may apportion available stocks between its customers at its sole discretion.
12. INSOLVENCY AND DEFAULT
12.1 This clause applies in the following circumstances:
12.1.1. the Buyer is in breach of any of these Conditions and (if such breach is remediable) fails to remedy such breach within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or
12.1.2. An encumbrance takes possession or a receiver is appointed over any of the property or assets of the Buyer; or
12.1.3. The Buyer makes any voluntary arrangement with its creditors or becomes subject to an Administration Order;
12.1.4. The Buyer goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting there from effectively agrees to be bound by or assume the obligations imposed on the Buyer under this Agreement);
12.1.5. Anything analogous to any of the foregoing under the law of any jurisdiction in relation to that other party;
12.1.6. The Buyer ceases, or threatens to cease, to carry on business; or
12.1.7. The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notify the Buyer accordingly.
12.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled without any liability to the Buyer to stop any of the Goods in transit and/or suspend further deliveries and/or by notice in writing to the Buyer determine the contract and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12.3 Termination of the contract, however arising, shall not affect any of the rights and remedies of the Seller or the Buyer that have accrued as at termination.
13. ILLEGALITY AND SEVERANCE
13.1 If at any time one or more of these Conditions becomes invalid, illegal or unenforceable in any respect in law the validity and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
13.2 If any provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the contract.
14.1 If any licence or consent of any government or other authority shall be required for the acquisition, carriage or use of the Goods by the Buyer the Buyer shall obtain the same at its own expense and if necessary produce evidence of the same to the Seller on demand. Failure so to do shall not entitle the Buyer to withhold or delay payment of the price. Any additional expenses or charges incurred by the Seller resulting from such failure shall be for the Buyer’s account.
14.2 Failure or delay by the Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement at any time.
14.3 A waiver of any right or remedy under these Conditions or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
14.4 Any notice hereunder shall be deemed to have been duly given if sent by prepaid first class post, or facsimile or email to the party concerned at its last known address. Notices sent by first class post shall be deemed to have been given seven days after despatch and notices sent by facsimile or email shall be deemed to have been given on the date of despatch.
14.5 The provisions of clause 14.4 shall not apply to the service of any proceedings or other documents in any legal action.
14.6 The contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the Laws of England and Wales.
The parties hereby submit to the non-exclusive jurisdiction of the Courts of England and Wales.
15.1. The Buyer may only return Goods purchased from the Seller in accordance with the provisions of this clause 15.
15.2. If the Buyer wishes to return Goods pursuant to clause 15.1 above, the Buyer must either notify the Seller in writing to Intermusic Ltd. 9 Cabot Business Village, Holyrood Close, Poole, Dorset, BH17 7BA, by e-mail to firstname.lastname@example.org or by phone on 01202 696963. On receipt of such notice, the Seller will determine in its absolute discretion whether to allow the Buyer to return Goods in accordance with this clause 15.
15.3. If the Seller determines that the Buyer will not be permitted to return Goods in accordance with this clause 15 the Seller’s decision will be final and binding on the parties.
15.4. If the Seller agrees in writing that the Seller may return Goods pursuant this clause 15 the Buyer must:
15.4.1. retain possession of the Goods;
15.4.2. take reasonable care of the Goods until the Seller collects the Goods or the Buyer delivers the Goods to the Seller; and
15.4.3. ensure that the Goods are returned or are made available for collection (as the case may be) in the same condition as when delivered to the Buyer.
15.5. If the Seller agrees in writing that the Buyer may return Goods pursuant to clause 15.4, then the Seller will notify the Buyer when the Seller wishes to collect the Goods. The Seller will collect the Goods within 28 days of receiving notification of return from the Buyer. The Seller has the right to charge the Buyer for any direct costs incurred in collecting the Goods and will, at the Seller’s option, deduct these costs from any sum owed to the Buyer. Alternatively, the Buyer may return the Goods to the Seller at the Seller’s place of business.
15.6. If the Buyer returns Goods pursuant to this clause 15 the Seller will issue a credit note against future purchases for 75% of the invoice price less 5% settlement within 14 days of the Seller receiving the Goods.
15.7. Goods returned in accordance with this clause 15 remain at the risk of the Buyer until collected by the Seller or are delivered to the Seller’s place of business by the Buyer (as the case may be).