|
Conditions of Sale
1 Definitions
In these Conditions, the following words shall have the following meanings:
1.1 "Seller" means Canford Audio PLC (CRN: 1385727) whose
registered office is at Crowther Road, Washington, Tyne & Wear, NE38 0BW.
1.2 "Buyer" means the person, firm or company placing an order
with the Seller.
1.3 "Goods" mean those goods which are the subject of the
Buyer’s order and which are to be supplied to the Buyer by the Seller under
these Conditions.
1.4 "Contract" means the contract for the supply of Goods
formed by the Seller’s acceptance of the Buyer’s order.
1.5 "VAT" means value-added tax.
1.6 "Website" means the Seller’s website at www.canford.co.uk
or such other URL as the Seller may from time to time determine and from which
Goods may be ordered.
2 Formation of Contract
2.1 All Goods sold by the Seller are sold subject to these Conditions
which shall govern the Contract to the exclusion of any other terms and shall
be the sole terms and conditions of any sale by the Seller to the Buyer. No
employee or agent of the Seller has the Seller’s authority to vary, amend or
waive any of these Conditions on behalf of the Seller and no amendment or
addition to any of them shall be deemed to have been accepted unless accepted
in writing by the Seller.
2.2 The Seller’s employees or agents are not authorised to make any
representation with regard to the subject matter of the Contract. In entering
into the Contract the Buyer acknowledges that if it relies on any
representation, advice or recommendation given by the Seller, its employees or
agents to the Buyer as to the use of the Goods it does so entirely at the
Buyer’s own risk.
2.3 All orders are accepted on the basis that they are from a bona fide trading
entity or professional end-user. The Buyer acknowledges that the Seller’s
products are unsuitable for domestic or retail applications and the Buyer
accordingly undertakes to the Seller that it is a bona fide trading entity or
professional end-user. The Buyer further acknowledges that the laws governing
the Contract shall be those relating to business to business (rather than
business to consumer) transactions unless judged otherwise by a court of
competent jurisdiction.
3 Placing and Acceptance of Orders
3.1 Acceptance by the Seller of the Buyer’s order is in all cases subject to
the availability of Goods for delivery, the correct price payable for the Goods
being stated on the Buyer’s order and also to the meeting of certain other
criteria, dependent upon the proposed payment method:
(a) for a new credit account order, acceptance is upon opening of the account
which will be subject to the satisfactory checking of information provided by
the Buyer as well as credit checks with a reputable credit reference agency in
accordance with clause 3.6;
(b) for an existing credit account order, acceptance is upon confirmation by
the Seller;
(c) for a credit card order, acceptance is upon authorisation of the credit
card for payment, by the issuer of the credit card; and
(d) for an order submitted via the Website, acceptance is upon the satisfying
of (a), (b), or (c) above (as the case may be) plus the sending by the Seller
of an order acceptance e-mail referred to in clause 3.2.
3.2 In the event that the Buyer submits an order for Goods via the Website, the
Seller will confirm receipt of the Buyer’s order by sending an order
acknowledgment e-mail to the Buyer as soon as possible after submission of the
order. Receipt of this order acknowledgment e-mail signifies that the Seller
has received the Buyer’s order but does not signify that the Seller has
accepted the Buyer’s order. Acceptance of the Buyer’s order will be deemed when
the Seller sends an order acceptance e-mail to the Buyer and the Buyer should
not assume that the order has been accepted until such order acceptance e-mail
has been received by the Buyer. There is no Contract in respect of the Goods
until the Seller has sent an order acceptance e-mail which accepts the Buyer’s
order.
3.3 All Contracts accepted by the Seller following the submission of an order
via the Website shall be in the English language, unless agreed otherwise
between the parties.
3.4 Acceptance by the Seller of each of the Buyer’s orders brings into
existence a separate legally binding contract between the Seller and the Buyer.
3.5 In the absence of any documentary evidence, acceptance is deemed to have
been given by the Seller on delivery of the Goods to the Buyer’s address shown
in the order.
3.6 The Buyer shall be responsible to the Seller for ensuring the accuracy of
the terms of any order and specification submitted by the Buyer and for
checking and ensuring the accuracy of any order acknowledgement issued by the
Seller. In submitting an order to the Seller, the Buyer agrees to the Seller’s
checking of the information contained in the Buyer’s order as well as for
credit checking with a reputable credit reference agency.
3.7 All specifications of the Goods are given by the Seller in the belief that
they are as accurate as reasonably possible but are not to be treated as
binding or as forming part of or incorporated by reference into the Contract.
3.8 Orders sent in confirmation of telephoned instructions should be clearly
marked ‘CONFIRMATION’ otherwise the Seller will accept no responsibility for
duplication of despatch.
4 Price of the Goods
4.1 The price payable for the Goods shall be as stated in the Seller’s price
list current at the date of acceptance of the order, as set out on the Website
(in the case of orders submitted via the Website only) or as set out in a
quotation issued by the Seller to the Buyer relating to the Goods. All prices
quoted are valid for 30 (thirty) days only or until earlier acceptance by the
Buyer, after which they may be altered by the Seller without giving notice to
the Buyer.
4.2 The Seller reserves the right by giving notice in writing to the Buyer at
any time before delivery to increase the price for the Goods to reflect any
increase in cost to the Seller which is beyond the control of the Seller (such
as, without limitation, any foreign exchange fluctuations, currency regulation,
alteration of duties, significant increase in the cost of labour, materials or
other costs of manufacture), any change in delivery dates, quantities or
specification which is requested by the Buyer, or which is due to any failure
by the Buyer to give the Seller adequate information or instructions.
4.3 The price of the Goods is exclusive of the cost of delivery, packaging,
insurance, VAT, customs duties and all other taxes, duties and expenses in
respect of the Goods, all of which shall be added to the price for the Buyer’s
account, unless otherwise stipulated in writing by the Seller.
4.4 The Seller shall be entitled to invoice the Buyer for the price of the
Goods at any time following delivery of the Goods unless the Buyer wrongfully
fails to take delivery of the Goods in which event the Seller shall be entitled
to invoice the Buyer for the full amount 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.
4.5 If delivery is made in instalments, each instalment may be separately
invoiced, and if so, each such invoice shall be paid for when due, without
regard to other instalments.
4.6 Information including prices payable for Goods on the Website is an
“invitation to treat” and not a contractual offer from the Seller which the
Buyer may accept. The Seller reserves the right to correct any errors in that
information without any liability to the Buyer. In no circumstances will the
Seller be contractually bound to supply the Buyer with Goods on the basis of
any incorrect information, even if that information is repeated in the Buyer’s
order.
5 Delivery
5.1 Unless otherwise agreed in writing, the Goods will be delivered to the
Buyer at the address for delivery specified in the Buyer’s order or otherwise
agreed with the Seller (or in the absence of a specified address or agreement,
to the invoice address of the Buyer).
5.2 Any delivery dates given to the Buyer by the Seller are given for guidance
purposes only. Although the Seller will use all reasonable efforts to meet
delivery dates, it shall not be liable to the Buyer for any loss or damage,
whether direct, indirect or consequential for any delay in delivery, in whole
or in part, howsoever caused.
5.3 If the Buyer refuses or fails to take delivery of the Goods on the date of
delivery, the Seller will be entitled at its discretion to store the Goods at
the risk of the Buyer and the Buyer shall in addition to the price payable
under clause 4 pay all costs and expenses of such storage and any additional
costs of carriage incurred.
5.4 All Goods must be inspected by the Buyer immediately on delivery. If any
Goods are damaged or lost or if there has been short delivery, the Buyer must
endorse the consignment note supplied by the carrier accordingly and submit a
detailed written claim to the Seller within 2 (two) working days of delivery of
the Goods. Where Goods are sold on an ex works basis, the Seller accepts no
liability for Goods lost or damaged in transit. The Buyer's signature on the
consignment note without any such endorsement shall release the Seller from any
liability in respect of damage or loss in transit or short delivery. In the
event of a valid claim in respect of the Goods (which is based on any damage
to, loss in or short delivery of the Goods), the provisions of clause 11.4
shall apply.
5.5 Except as otherwise provided in these Conditions, the risk of loss or
damage to the Goods shall pass to the Buyer upon delivery of the Goods.
6 Payment
6.1 Unless otherwise agreed in writing, the Buyer shall make payment for the
Goods in the currency of the invoice within 14 (fourteen) days of the end of
the month in which the invoice was issued and the Seller shall be entitled to
recover the price notwithstanding that property in the Goods has not passed to
the Buyer.
6.2 The time of payment of the price shall be of the essence of the Contract.
6.3 If the Buyer fails to pay any amount due to the Seller in Pounds Sterling
but makes such payment in another currency, the Buyer shall (except where the
invoice permits payment in such currency) indemnify the Seller against the full
cost incurred by the Seller (including all costs, charges and expenses) of
converting that payment into Pounds Sterling.
6.4 If the Buyer fails to make any payment on the due date then, without
prejudice to any other right or remedy available to the Seller, the Seller
shall be entitled to:
(a) cancel the Contract or suspend any further deliveries to the Buyer;
(b) appropriate any payment made by the Buyer to such Goods supplied under any
contract between the Buyer and the Seller as the Seller may think fit
notwithstanding any purported appropriation by the Buyer; and (c) claim
interest and/or compensation for reasonable debt recovery costs under the Late
Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by
the Late Payment of Commercial Debts Regulations 2002 and any other regulations
from time to time.
6.5 The Buyer shall not purport to set off or withhold any payments claimed or
due to the Seller under the Contract or any other contract between the Seller
and the Buyer.
7 Ownership of the Goods
7.1 Notwithstanding delivery and the passing of risk in Goods, the
Seller shall retain title to and ownership of the Goods until it has received
payment in full of all sums due for all Goods supplied to the Buyer. If
payments received from the Buyer are not stated to refer to a particular
invoice the Seller may appropriate such payments to any outstanding invoice.
7.2 Even though title has not passed, the Seller shall be entitled to sue for
the price of the Goods once payment has become due.
7.3 Until such time as property in the Goods passes to the Buyer:
(a) the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee,
and shall keep the Goods separate from those of the Buyer and third parties and
properly stored, protected, insured and identified as the Seller’s property;
(b) the Seller shall be entitled at any time to require the Buyer to deliver up
the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter
upon any premises of the Buyer or of any third party where the Goods are stored
and repossess the Goods.
7.4 If the Buyer compounds with its creditors, executes an assignment for the
benefit of its creditors, has a bankruptcy order made against it or, being a
company, enters into voluntary or compulsory liquidation or has an
administrator or administrative receiver or receiver appointed over all or part
of its assets or takes or suffers any similar action in consequence of debt or
becomes insolvent or if the Seller has reasonable cause to believe that any of
these events is likely to occur, the Seller shall have the right, without
prejudice to any other remedies:
(a) to enter without prior notice any premises where Goods owned by it may be,
and to repossess and dispose of any Goods owned by it so as to discharge any
sums owed to it by the Buyer under the Contract or any other contract between
the Seller and the Buyer;
(b) to require the Buyer not to resell or part with possession of any Goods
owned by the Seller until the Buyer has paid in full all sums owed to the
Seller under the Contract or any other contract between the Seller and the
Buyer; and
(c) to withhold delivery of any undelivered Goods and stop any Goods in transit
and forthwith suspend or cancel any uncompleted part of the Contract. Unless
the Seller expressly elects otherwise, any Contract between it and the Buyer
for the supply of Goods shall remain in existence notwithstanding any exercise
by the Seller of its rights under this clause 7.
8 Return of Goods
8.1 Goods correctly supplied in accordance with the Buyer’s order may not be
returned without the Seller’s written consent (including where there has been
duplication of orders as referred to in clause 3.8).
8.2 If such written consent referred to in clause 8.1 is forthcoming a returned
goods handling charge of 15% (fifteen per cent) of the price (or £5.00 if
greater) will be made. In no circumstances will Goods which have, in the
reasonable opinion of the Seller, been used be considered by the Seller for
return unless there is (in the opinion of the Seller) a valid reason for such
return.
9 Cancellation
9.1 The Buyer shall not be entitled to cancel the Contract and if the
Buyer purports to do so it shall indemnify the Seller for all losses, costs and
expenses incurred by the Seller in relation to the Contract.
9.2 The Seller shall be entitled to cancel the Contract or suspend any further
deliveries under the Contract without any liability to the Buyer if:
(a) there is insufficient stock to deliver the Goods ordered by the Buyer;
(b) one or more of the Goods ordered by the Buyer was listed at an incorrect
price due to a typographical error or an error in the pricing information
received by the Seller from its suppliers; (c) the Buyer makes any voluntary
arrangement with its creditors or becomes bankrupt or subject to an
administration order or has an administrator appointed in respect of it or goes
into liquidation;
(d) an encumbrancer takes possession, or a receiver is appointed over any of
the property or assets of the Buyer; or
(e) the Buyer ceases or threatens to cease to carry on business; and if the
Goods have been delivered in whole or in part but not paid for the price of the
Goods shall become immediately due and payable.
9.3 If the Seller cancels the Buyer’s order, the Seller will notify the Buyer
accordingly and will re-credit the Buyer with any amounts deducted by the
Seller in respect of that order as soon as possible but in any event within 30
(thirty) days of cancellation. The Seller will not be under any obligation to
pay the Buyer any additional compensation for inconvenience or disappointment.
10 Export Terms
10.1 In these Conditions "Incoterms" means the international rules for the
interpretation of trade terms of the International Chamber of Commerce as
published in 2000. Unless the context otherwise requires, any term or
expression which is defined in or given a particular meaning by the provisions
of Incoterms shall have the same meaning in these Conditions, but if there is
any conflict between the provisions of Incoterms and these Conditions, the
latter shall prevail.
10.2 Where the Goods are supplied for export from the United Kingdom, the
provisions of this clause 10 shall (subject to any special terms agreed in
writing between the Buyer and the Seller) apply notwithstanding any other
provision of these Conditions.
10.3 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 on them.
10.4 Unless otherwise agreed in writing between the Buyer and the Seller, the
Goods shall be delivered FOB to the air or sea port of shipment and the Seller
shall be under no obligation to give notice under section 32(3) of the Sale of
Goods Act 1979.
10.5 The Buyer shall be responsible for arranging for testing and inspection of
the Goods at the Seller’s premises before shipment. The Seller shall have no
liability for any claim in respect of any defect in the Goods which would be
apparent on inspection and becomes known after shipment, or in respect of any
damage caused during transit.
10.6 Unless otherwise agreed by the Seller, payment of all amounts due to the
Seller shall be made by irrevocable letter of credit opened by the Buyer in
favour of the Seller and confirmed by a bank in the United Kingdom acceptable
to the Seller.
11 Warranties and Liability
11.1 The Seller will make every effort to ensure that the Goods
supplied will be of satisfactory quality and warrants that the Goods will be
free from defects in materials and workmanship for a period of 12 (twelve)
months from the date of delivery.
11.2 The Seller shall be under no liability:
(a) in respect of any defect in the Goods arising from any drawing, design or
specification supplied by the Buyer;
(b) in respect of any defect arising from fair wear and tear, wilful damage,
negligence, abnormal working conditions, failure to follow the Seller’s
instructions (whether oral or written), misuse or alteration or repair of the
Goods without the Seller’s approval;
(c) if the total price for the Goods has not been paid by the due date for
payment; or
(d) in respect of parts or materials not manufactured by the Seller, in respect
of which the Buyer shall only be entitled to the benefit of any warranty or
guarantee which is given by the manufacturer to the Seller.
11.3 Any claim by the Buyer based on any defect in the quality or condition of
the Goods or their failure to correspond with the agreed specification shall
(whether or not delivery is refused by the Buyer) be notified to the Seller
within 7 (seven) days from the date of delivery or (where the defect or failure
was not apparent on reasonable inspection) within a reasonable time after
discovery of the defect or failure. If delivery is not refused, and the Buyer
does not notify the Seller accordingly, the Buyer shall not be entitled to
reject the Goods and the Seller shall have no liability for such defect or
failure, and the Buyer shall be bound to pay the contract price as if the Goods
had been delivered in accordance with the Contract.
11.4 Where any valid claim in respect of any of the Goods (which is based on
any defect in the quality or condition of the Goods or their failure to meet
the agreed specification) is notified to the Seller in accordance with these
Conditions, the Seller shall (subject to (i) the Seller giving its prior
written consent to return of the Goods; and (ii) the Buyer returning the Goods
at its own expense to such location as the Seller may notify in writing with
details of the invoice covering the purchase and a description of the problem)
be entitled to repair or replace the Goods (or the part(s) in question) free of
charge or, at the Seller’s sole discretion, refund to the Buyer the price of
the Goods (or a proportionate part of the price), but the Seller shall have no
further liability to the Buyer.
11.5 In no circumstances shall the Seller's liability to the Buyer for any
breach of warranty exceed: (a) in respect of any damage to or loss of tangible
property caused by defective Goods, a total of £25,000 (twenty five thousand
pounds); and (b) in respect of any other loss or damage, whichever is the
greater of: (i) the price paid for the Goods in respect of which the claim is
made; and (ii) any sum recovered by the Seller from its own supplier (after
having used all reasonable endeavours to make such recovery) in respect of the
defective Goods or part thereof.
11.6 Except as provided for in these Conditions, there are no warranties,
express or implied, of satisfactory quality or of fitness for a particular
purpose, or of any other kind except as to title. In particular, all conditions
and warranties which would otherwise be implied by statute or under the common
law are hereby excluded to the fullest extent permitted by law.
11.7 The Seller shall under no circumstances be liable for loss of profits,
revenue or business opportunity, whether direct or indirect, or for any other
indirect, special or consequential loss (including loss of anticipated profit
or third party claims) howsoever arising either from breach or non-performance
of any of its obligations under the Contract or from the supply of or intended
use of the Goods, even if the Seller has been advised of the possibility of
such potential loss, except that the Seller shall be liable for loss arising
from death or personal injury resulting from the proven negligence of the
Seller.
11.8 All recommendations and advice given by or on behalf of the Seller to the
Buyer as to methods of storing, using or applying the Goods, the purposes for
which the Goods may be applied and the suitability of using the Goods in any
manufacturing process or in connection with any other materials are given for
guidance only.
12 Intellectual Property
12.1 The Seller retains copyright in respect of all drawings, plans,
specifications and catalogues issued by it to the Buyer and the Contract shall
not be deemed to transfer to the Buyer any of the Seller’s copyright, patents,
designs, trade marks or other intellectual property rights.
12.2 "Canford", "Tecpro", “Cablesource”, “MD-Report!”, “LFH”, "NEAL", "FST",
"HST", "SDV", "D-MUSA", "Big Ears" and "The Source" are the registered or
unregistered trademarks of the Seller.
12.3 The "Canford" and "The Source" logos are registered trademarks of the
Seller.
12.4 "PSF1/3", "PSF1/2M", "PSF1/9MA", "PSF1/9MB", "PSF1/9MC" and "BBC" are
trademarks of the British Broadcasting Corporation and are used under licence.
12.5 Whilst the Seller is not aware of any infringement by the Goods of any
third party’s intellectual property rights, the Seller makes no representation
or warranty that use of the Goods does not infringe any such rights and the
Seller accepts no liability in this respect.
13 Legal Framework
13.1 The Seller’s address and various contact details are available at
www.canford.co.uk/contactus.aspx or the Buyer can e-mail the Seller at
customerservices@canford.co.uk. Information about special offers
available only via the Website will be displayed on the Website. Information on
the technical steps to follow to conclude an order via the Website is available
at www.canford.co.uk/howtoorder.aspx. The
Seller’s VAT identity number is 660 1163 71.
13.2 The Seller is a member of a group of companies and accordingly the Seller
may perform any of its obligations or exercise any of its rights hereunder by
itself or through any other member of its group including a subsidiary or
holding company of the Seller (as defined by s.736 of the Companies Act 1985,
as amended by the Companies Act 1989).
13.3 The Seller shall not be liable to the Buyer or be deemed to be in breach
of the Contract by reason of any delay in or failure to perform any of its
obligations under the Contract if the delay or failure was caused by
circumstances outside the reasonable control of the Seller.
13.4 The failure of the Seller to insist upon the strict performance of any of
the terms and conditions of the Contract shall not be construed as a waiver of
any such term or condition and shall in no way affect the Seller’s right to
enforce such provision later.
13.5 If it becomes necessary for a court to enforce these Conditions and any
one of these Conditions is found to be invalid or unenforceable this will not
affect the remainder of these Conditions.
13.6 A person who is not a party to the Contract has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of the
Contract between the Seller and the Buyer but this does not affect any right or
remedy of a third party which exists or is available apart from that Act.
13.7 The construction, validity and performance of the Contract shall be
governed by English law and by entering into the Contract the parties submit to
the jurisdiction of the English courts.
|
