CONDITIONS OF SALE
1.1 “Seller” means David Horn Communications Limited
1.2 “Buyer” means the person, firm or company placing an order with the Seller 1.3 “Goods” means those good 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.
2 FORMATION OF CONTRACT
2.1 All goods sold by the Seller are sold subject to these Conditions which shall be the sole terms and conditions of any sale by the Seller to the Buyer. No representative, agent or sales person 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 All orders are accepted on the basis that they are from a bona fide trading entity or professional end-user.
3 ORDERS AND DELIVERY
3.1 Orders are accepted by the Seller subject to the availability of Goods for delivery
3.2 Unless otherwise agreed, delivery of Goods within the UK will be made at the cost of the Buyer to the address specified in the Buyer’s order by any method of transportation regarded as suitable by the Seller at its discretion and delivery of Goods destined for export outside the UK will be as stated in the Contract.
3.3 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 if it is delayed, in whole or in part, from delivering the Goods.
3.4 Orders sent in confirmation of telephone instructions should be clearly marked ‘CONFIRMATION’ otherwise the Seller will accept no responsibility for duplication of despatch.
3.5 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.
3.6 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 accordingly and submit a detailed written claim to the carrier within 2 days of delivery of the Goods and supply a copy of such claim to the Seller within 7 days of delivery of the Goods. 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.
3.7 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.
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 (or quotation relating to the Goods)
4.2 The price is exclusive of the cost of delivery and exclusive of the Value Added Tax, 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
4.3 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
5.1 Unless otherwise agreed in writing, the Buyer shall make payment for the Goods in pounds sterling 30 days from the date of invoice.
5.2 If payment is not made when due then the Seller may, without prejudice to its other rights, charge interest at an annual rate of 2 per cent above LIBOR calculated on a day to day basis on the balance outstanding until payment is made in full.
5.3 The Buyer shall not purport to set off or withhold any payments claimed or due to the Seller under this or any other contract.
6.1 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.
6.2 If any of the Goods owned by the Seller are attached to, mixed with or incorporated into any other goods not owned by the Seller so that the Goods in question are not separate from the resulting composite or mixed goods, then immediately upon manufacture all such composite or mixed goods shall belong to the Seller absolutely and not by way of charge until the Goods have been paid in full or until the Seller recovers possession of, and resells sufficient of the composite or mixed goods to discharge the purchase price in full and the Seller’s costs recovered, any excess to be accounted for to the Buyer.
6.3 Until payment of the purchase price or sale by the Buyer in the ordinary course of its business (whichever is earlier) the Buyer shall be the bailee of the Goods for the Seller and the Goods shall be stored separately from any Goods which belong to the Buyer or any third party, and shall be clearly marked and identifiable as being the Seller’s property.
6.4 If the Buyer fails to make any payment to the Seller when due, compounds with its creditors executes an assignment for the benefit of its creditors, as a bankruptcy order 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 this or any other contract.
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 by it to the Seller under this or any other contract.
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 not withstanding any exercise by the Seller of its rights under this clause
7 RETURN OF GOODS
7.1 Goods correctly supplied in accordance with the Buyers instructions may not be returned without the Seller’s written consent. (Including where there has been a duplication of orders as referred to in clause 3.4). If such written consent is forthcoming a return Goods handling charge of 15% of the price (or £5.00 if greater) will be made. In no circumstances will Goods which have been used be considered by the Seller for return.
8 WARRANTIES AND LIABILITY
8.1 The Seller warrants that the Goods shall be free from defects in materials and workmanship for a period of twelve months from the date of delivery provide.
a) the Buyer makes a full inspection of the goods immediately upon delivery.
b) the Buyer notifies the Seller within seven days of discovering any defects.
c) the Buyer has handled the goods correctly for its intended use and in accordance with any instructions or recommendations of the Seller. The Goods have not been adjusted, altered, adapted or repaired by any party other than the Seller, the Goods are returned to the Sellers Luton offices at the Buyers own expense with details of the invoice covering the purchase and a description of the problem.
8.2 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 £25,000.00 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.
8.3 Except as provided for in these Conditions, there are no warranties, express or implied, of satisfactory quality or 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.
8.4 The Seller shall under no circumstances be liable for any 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 and nothing in these conditions shall have the effect of excluding or limiting liability under the Consumer Protection Act 1987 to a person who has suffered damage caused by defective Goods or to a dependent or relative of such person.
8.5 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 of the Goods in any manufacturing process or in connection with any other materials are given for guidance only.
9 INTELLECTUAL PROPERTY
9.1 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, trademarks or other intellectual property rights.
9.2 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.
10 FORCE MAJEURE
10.1 The seller shall not be liable for any delay in or failure to perform any of its obligations under the Contract if the delay or failure is caused by circumstances outside the reasonable control of the Seller.
11.1 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.
12 GOVERNING LAW
12.1 The construction, validity and performance of the Contract shall be governed by English law and entering into the Contract the parties submit to the jurisdiction of the English Courts.