In these conditions the following terms shall have the meanings set out below:-
“Seller” shall mean Digital Audio & Computer Systems (Manufacturing and Marketing) Limited, whose registered office is at Croft Stairs, City Road, Newcastle upon Tyne, NE1 2HG and whose principal place of business and address for service is at Stonehills, Shields Road, Pelaw, Gateshead, Tyne & Wear, NE10 0HW.
“Buyer” shall mean the person, firm, company or other corporation who places an order with the Seller or otherwise contracts with the Seller for any of the Goods or Services.
“Goods” shall mean all or any of the goods or materials which from time to time the Seller contracts to supply.
“Services” shall mean all or any of the services which from time to time the Seller contracts to supply.
2. Basis of Contract
These conditions shall apply to all contracts, whether written, oral or implied for the supply of Goods or Services.
Any conditions of purchase or other terms provided by the Buyer shall be of no effect whatsoever nor shall any variation or alteration to these conditions be of any effect unless made in writing and signed by a duly authorised signatory of the Seller.
The placing of an Order by the Buyer will not create a binding contract. A contract will not exist between the Buyer and the Seller until:-
i) a written acknowledgement of the order shall have been issued by the Seller to the Purchaser, (the order acknowledgement will be deemed to repeat these conditions);
(ii) if no written order acknowledgement is issued, at the time of acceptance of any order for the Goods or Services by the Seller.
Quotations shall only be valid for a period of 30 days from date of issue.
Subject to the terms of any quotation issued by the Seller, prices for the Goods or Services are as referred to in the Seller’s price list current at the time of delivery and, unless otherwise stated, exclusive of Value Added Tax and any other similar tax, carriage, handling, packaging and any insurance charges.
The Buyer shall have no right of set off whether statutory or otherwise.
The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods or Services to reflect any increase in the cost to the Seller in performing the contract which is due to any actions or instructions on the part of the Buyer or any other factor beyond the Seller’s control.
Unless otherwise expressly stated in writing by the Seller, all prices payable must be settled in pounds sterling but if the Seller agrees to accept foreign currency and does not specify an exchange rate the exchange rate will be that of the Bank of England at the close of business on the day preceding the day on which the Seller accepts the Buyer’s order.
5. Variation and Cancellation
The Seller shall be under no obligation whatsoever to accept any variation or cancellation of an order once accepted but if the Seller, at its complete discretion, agrees to accept any such variation or cancellation it may levy such charges as it, in its absolute discretion, sees fit.
6. Payment and default by Buyer
The Seller reserves the right at any time at its discretion to demand security for payment before commencing and/or continuing with a contract or delivering the Goods or goods upon which Services have been rendered.
Subject to clauses 6.3 and 6.4 and unless otherwise agreed in writing by the Seller the Buyer shall pay the Seller in full for the Goods or Services as the case may be within thirty (30) days from the date of the relevant invoice. Time for payment shall be of the essence of the contract.
In the event that the Buyer fails to make payment by the due date or otherwise commits a breach of these conditions, the Seller may in its absolute discretion and without prejudice to any other rights which it may have:-
(a) suspend all future deliveries or supplies to the Buyer under the contract in question or under any other contracts and/or terminate all or any part of such contract(s) without liability upon its part;
(b) require payment in advance for any future deliveries;
(c) in the case of non-payment on or before the due date or on demand (pursuant to paragraph 6.4 below) charge interest on the amount due on a day to day basis at the statutory interest rate for business to business transactions from the time of delivery or date of invoice whichever is the earlier until the date of actual payment, whether before or after judgement.
Without prejudice to any other rights the Seller may have by virtue of paragraph 6.3 in the event that:
(a) the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);
(b) an encumbrancer takes possession of, or a receiver is appointed over, any of the properties or assets of the Buyer;
(c) the Buyer ceases, or threatens to cease, to carry on business;
(d) the Seller reasonably believes that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer of such belief,
the Seller may demand immediate payment of all sums whether or not due or recover possession of the Goods, and without liability for any damage caused, sever the Goods from anything to which they are attached or connected (and the Buyer hereby grants to the Seller an irrevocable licence to enter upon any premises of the Buyer for this purpose).
7. Delivery and Collection
Subject to the provisions of clauses 4.1 and 8 the Seller may stipulate that delivery will be made at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods or goods upon which Services have been rendered are ready for collection. In all other circumstances delivery of Goods or goods upon which Services have been rendered will be made to the Buyer’s premises at the Buyer’s request.
When delivery takes place at the Buyer’s premises it will be the Buyer’s responsibility to ensure delivery can take place at the time and place specified or otherwise agreed. The Buyer shall indemnify the Seller against any loss or expense incurred as a result of a breach of these obligations.
Times for the supply of the Goods or Services by the Seller in its quotation or otherwise are intended as estimates only and shall not be treated as being of the essence of the contract or binding on the Seller. The Seller will not be liable to the Buyer for any loss or damage (direct or indirect) occasioned by the Seller’s failure (whether as a result of negligence or otherwise) to deliver the Goods or the goods upon which the Services have been rendered, by the date or within the time stated and in no case shall delay be a ground for rejecting the same.
The right to deliver the Goods or the goods upon which the Services have been rendered in part is expressly reserved by the Seller and these conditions shall apply to any such part or parts with the necessary changes.
If the Buyer fails to take delivery of the Goods or goods upon which Services have been rendered or fails to give the Seller adequate delivery instructions then without prejudice to any other right or remedy available to the Seller, the Seller may:-
(a) store such goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage;
(b) sell such goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) on charge the Buyer for any shortfall below the price under the contract.
Unless agreed the liability for Goods or the goods upon which the Services have been rendered shall pass to the Buyer:
(a) in the case of delivery at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods or the goods upon which the Services have been rendered are available for collection; or
(b) where the Seller arranges delivery, when the carrier collects the Goods or goods upon which Services have been rendered at the Seller’s premises prior to loading.
9. Title to Goods
The property and ownership of the Goods shall remain in the Seller until such time as the price of all Goods and/or Services supplied at any time by the Seller together with all other sums owing to the Seller on any account whatsoever have been paid in full.
The Seller shall be entitled to appropriate any payment made by the Buyer in settlement of such invoices or accounts as the Seller in its absolute discretion thinks fit notwithstanding any purported appropriation to the contrary by the Buyer.
If within 12 months of the date of delivery of the Goods or 3 months of the date of delivery of the goods upon which the Services have been rendered (as the case may be)or such longer period as the Seller may confirm in writing, the Buyer gives written notice to the Seller of any defect in the Goods or the goods upon which Services have been rendered which arises under proper and reasonable use of the Goods or goods upon which Services have been rendered and which is due to faulty materials or workmanship supplied by the Seller then the Seller will at its option, either replace or repair the defective Goods, part or material or, as the case may be, perform such further Services as the Seller shall deem necessary so as to remedy the defects.
Subject to clause 11.4 if within 30 days from the date of delivery of the Goods the Buyer wishes to return the Goods for any reason, upon the Buyer giving notice in writing to the Seller and returning the Goods in their original and unspoilt condition together with any packaging, the Seller will replace the Goods or refund their price. This clause 11.1 shall apply only to those Goods manufactured by the Seller as standard products and not to one-off or custom-made products or Goods supplied and/or manufactured by a third party. The Seller reserves the right to refuse to accept the return of Goods pursuant to this clause.
Any claim by the Buyer which is based on any shortage in or damage to or defect in the quality or condition of the Goods or Services, or their failure to correspond with specification shall be made in writing and received by the Seller within 14 days from the date of delivery.
If no notification is received by the Seller pursuant to clauses 11.1 or 11.2, the Buyer will not be entitled to reject the Goods or Services and must pay their price unless the Buyer can show that it was impossible for it to comply with the specified limits in which case any claim will be barred if not made without delay.
Goods may not be returned under this clause or for any reason without the Seller’s prior agreement in writing.
12. Exclusion of Liability
The Seller shall be under no liability in respect of any defect in the Goods or Services arising from any drawing, design or specifications supplied by the Buyer.
Except in the case of death or personal injury the Seller’s total 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 or Services determined by the Seller’s net invoice price to the Buyer.
Save as mentioned in sub-clause 12.2 and clause 10 hereof or required by statute the Seller shall be under no liability to the Buyer whatsoever for any defect in, failure of, or unsuitability for any purpose of the Goods or the Services or any part thereof whether the same be due to the act or omission, negligence or default of the Seller or its servants or agents, and all warranties, conditions or other terms implied by statute, common law, trade usage or otherwise inconsistent with these conditions are hereby excluded to the fullest extent permitted by law.
In no circumstances shall the Seller be liable for any economic loss or damage suffered by the Buyer howsoever caused and whether foreseeable or contemplatable which, for the avoidance of doubt shall be taken as including any loss of profits, business revenue, goodwill, anticipated saving, overhead and labour costs.
Where the Buyer is a consumer (within the meaning of Unfair Terms in Consumer Contracts Regulations 1994) these conditions shall not affect the statutory rights of the Buyer.
13. Liability Insurance
The Seller’s prices are determined on the basis of the limits of liability set out in this clause. In the event that the Buyer requires the Seller to accept a higher standard of liability, the Buyer shall make such request in writing upon receipt of which the Seller will accept such liability provided insurance can be obtained against that higher level of liability and the cost of such insurance is borne by the Buyer.
14. Designs, Drawings and Specifications
If the Goods are manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification or requirement submitted by the Buyer and agreed by the Seller the Buyer shall indemnify the Seller in respect of any claim against the Seller directly attributable to or caused by any such specification or requirement.
The Buyer warrants that any instructions, plans, designs or drawings furnished or given by it shall not be such as will cause the Seller to infringe any patents, copyright, registered design, design right, right of confidence, trade mark or any other intellectual property right in execution of the Buyer’s order and agrees to indemnify the Seller against all claims, costs or other expenses incurred by the Seller in respect thereof.
15. Intellectual Property
All intellectual property rights in the Goods or any drawings, specifications or designs prepared by the Seller for use in the provision of the Goods or Services shall at all times remain vested in the Seller as the Seller’s absolute property and the Buyer shall not reproduce or use all or any of them, nor divulge to third parties, details of any of the designs, drawings, specifications or other technical information which may come to the knowledge of or be made available to the Buyer without the Seller’s prior written consent.
16. Catalogues, Advertisements and Drawings
Whilst the Seller believes that all specifications, illustrations, performance data and other information contained in any drawings, catalogues, advertisements or other documents supplied by the Seller are as accurate as reasonably possible, they do not constitute a description of the Goods and shall not be taken to be representations made by the Seller and are not warranted to be accurate.
17. Alterations and Modifications
The Seller may from time to time and without notice to the Purchaser withdraw Goods from availability for sale or carry out alterations or improvements in the construction or design, specification, materials or manner of manufacture of the Goods.
18. Operating Instructions and Advice
Operating and maintenance instructions are supplied with the Goods. The Buyer agrees that the Goods will be installed and used in accordance with those instructions by suitably trained personnel.
19. Force majeure
Without prejudice to the generality of any of these conditions, the Seller shall not be liable for any loss or damage caused by the non-performance or delay in the performance of any of its obligations hereunder if the same is occasioned by any cause which is beyond the Seller’s control. Should any such event occur the Seller may cancel or suspend this contract without incurring any liability for any loss or damage thereby occasioned.
Subject to any special terms agreed in writing between the Seller and the Buyer, the provisions of this clause 20 shall apply notwithstanding any other provisions in these conditions.
Where the Goods are supplied for export from the United Kingdom the Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
Unless otherwise agreed in writing between the Buyer and the Seller the Goods shall be delivered in accordance with shipping arrangements determined by the Seller and notified to the Buyer.
Unless otherwise agreed in writing between the Buyer and the Seller payment of all amounts due to the Seller shall be made in advance prior to despatch by the Seller of the Goods or goods upon which the Services have been rendered.
Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
No waiver by the Seller of any breach of contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision shall not be affected.
The construction, validity and performance of the contract shall be governed by and be interpreted in accordance with English law. The parties hereto agree to submit themselves to the non-exclusive jurisdiction of the English courts for the purposes of these terms and conditions.