In this document the following words shall have the following meanings:
1.1 "Buyer" means the organisation or person who buys Goods from the Seller;
1.2 "Goods" means the articles to be supplied to the Buyer the Seller;
1.3 "Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.4 "List Price" means the list of prices of the Goods maintained by the Seller as amended from time to time;
1.5 "Seller" means Void Acoustics Research Limited, a private company registered in England & Wales with company number 07533536 whose registered office is at 15 Dawkins Road Industrial Estate, Poole, Dorset BH15 4JY, England.
2.1 These Terms and Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by the Seller in writing.
2.2 Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
2.3 No terms or conditions endorsed on, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document shall form part of the contract simply as a result of such document being referred to in the contract.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Seller until a written acknowledgement of order is issued by the Seller or (if earlier) the Seller delivers the Goods to the Buyer.
2.6 These terms and conditions shall apply to the exclusion of any contrary terms included in purchase orders or other pre-contract documentation, save where we expressly agree otherwise in writing.
3 PRICE AND PAYMENT
3.1 The price shall be that in the Seller’s current List Price less agreed discount level, or such other price as the parties may agree in writing. The price is exclusive of VAT and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
3.2 Payment of the price and VAT and any other applicable costs shall be due before dispatch of goods.
3.3 The Seller shall be entitled to charge interest on overdue invoices from the date when payment becomes due on a daily basis until the date of payment at a rate of 1.5% per month whether or not after judgment and without prejudice to any other right or remedy of the Supplier.
3.4 If payment of the price or any part thereof is not made by the due date, the Seller shall be entitled to:
3.4.1 require payment in advance of delivery in relation to any Goods not previously delivered;
3.4.2 refuse to make delivery of any undelivered Goods whether ordered under the contract or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;
3.4.3 terminate the contract.
3.5 Deposit with order may be used to as confirmation of order and as such is not refundable unless otherwise stated in writing by the seller.
Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.
Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so as to constitute a sale by sample.
6.1 Unless otherwise agreed in writing, delivery of the Goods shall take place at the Seller’s place of business on the date specified by the Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
6.2 The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the contract. If no dates are so specified, delivery shall be within a reasonable time. Subject to the other provisions of these conditions the Seller shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Seller's negligence), nor shall any delay entitle the Buyer to terminate or rescind the contract unless such delay exceeds 180 days.
6.3 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
6.3.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Seller's negligence);
6.3.2 the Goods shall be deemed to have been delivered; and
6.3.3 the Seller may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
6.4 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
6.5 If the Seller delivers to the Buyer a quantity of Goods of up to 50% more or less than the quantity accepted by the Seller, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata contract rate.
6.6 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the contract.
6.7 Each instalment shall be a separate contract and no cancellation or termination of any one contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other contract or instalment.
6.8 The quantity of any consignment of Goods as recorded by the Seller on despatch from the Seller's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
6.9 The Seller shall not be liable for any non-delivery of Goods (even if caused by the Seller's negligence) unless the Buyer gives written notice to the Seller of the non-delivery within 24 hours days of the date when the Goods would in the ordinary course of events have been received.
6.10 Any liability of the Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Goods.
6.11 When specified on any other accompanying documentation terms of delivery are in accordance with Incoterms 2000 provision.
Risk in the Goods shall pass to the Buyer at the moment the Goods are dispatched from the Seller’s premises. Where the Buyer chooses to collect the Goods itself, risk will pass when the Goods are entrusted to it or set aside for its collection, whichever happens first.
8.1 Ownership of the Goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of:
8.1.1the Goods; and
8.1.2all other sums which are or which become due to the Seller from the Buyer on any account.
8.2 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
8.2.1 hold the Goods on a fiduciary basis as the Seller's bailee;
8.2.2 store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller's property;
8.2.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and maintain the Goods in satisfactory condition and keep them insured on the Seller's behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller.
8.3 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
8.3.1 any sale shall be effected in the ordinary course of the Buyer's business at full market value; and
8.3.2 any such sale shall be a sale of the Seller's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale.
8.4 The Buyer's right to possession of the Goods shall terminate immediately if:
8.4.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
8.4.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
8.4.3 the Buyer encumbers or in any way charges any of the Goods.
8.5 The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
8.6 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
8.7 Where the Seller is unable to determine whether any Goods are the goods in respect of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.
8.8 On termination of the Contract, howsoever caused, the Seller's (but not the Buyer's) rights contained in this condition shall remain in effect.
9.1 Where the Goods have been manufactured by the Seller and are found to be defective, the Seller shall repair, or in its sole discretion, replace defective Goods free of charge within 1 month from the date of delivery, subject to the following conditions:
9.1.1the Buyer notifying the Seller in writing immediately upon the defect becoming apparent;
9.1.2the defect being due to the faulty design, materials or workmanship of the Seller.
9.2 Any Goods to be repaired or replaced shall be returned to the Seller at the Buyer’s expense, if so requested by the Seller.
9.3 Where the Goods have been manufactured and supplied to the Seller by a third party, any warranty granted to the Seller in respect of the Goods shall be passed on to the Buyer.
9.4 The Seller shall be entitled in its absolute discretion to refund the price of the defective Goods in the event that such price has already been paid.
9.5 The remedies contained in this Clause are without prejudice to the other Terms and Conditions herein, including, but without limitation, Clauses 10 and 11 below.
10.1 Subject to condition 6 the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
10.1.1 any breach of these conditions;
10.1.2 any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
10.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the contract.
10.3 Nothing in these conditions excludes or limits the liability of the Seller:
10.3.1 for death or personal injury caused by the Seller's negligence; or
10.3.2 under section 2(3), Consumer Protection Act 1987; or
10.3.3 for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
10.3.4 for fraud or fraudulent misrepresentation.
10.4 Subject to condition 6 and condition 8:
10.4.1 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the contract shall be limited to the contract price; and
10.4.2 the Company shall not be liable to the Buyer 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) which arise out of or in connection with the contract.
11 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.
12 FORCE MAJEURE
The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the contract.
13 RELATIONSHIP OF PARTIES
Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement. Each right or remedy of the Seller under the contract is without prejudice to any other right or remedy of the Seller whether under the contract or not.
The Seller may assign the contract or any part of it to any person, firm or company. The Buyer shall not be entitled to assign the contract or any part of it without the prior written consent of the Seller.
If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
17 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
(Updated 25th November 2013, paragraph 3.3)