1.1 The terms and conditions of sale set out in this document ("the Conditions") apply to each contract ("the Contract") in respect of the sale of ordered goods ("the Goods") supplied by Orbital Sound Ltd ("the Seller") to a purchaser ("the Buyer").
1.2 The Seller shall sell and the Buyer shall buy the Goods from the Seller subject to the Conditions which shall govern the Contract to the exclusion of any other terms and conditions.
1.3 The Seller reserves the right to modify the terms of the transaction, including withdrawing from the sale, up to but not after the point of delivery, without any incurred liability.
2 ORDERS, GOODS AND PRICES
2.1 On receipt of an enquiry, a written Installation and Sales Quotation ("the Quotation") will be sent by fax or e-mail to the Buyer with the Conditions, the terms upon which the Goods are to be sold to the Buyer.
2.2 The Buyer must confirm to the Seller that it wishes to proceed on the basis of the Quotation and must confirm that the details on the Quotation are complete and correct or specify any changes or inaccuracies.
2.3 Such confirmation by the Buyer shall be deemed to be an offer by the Buyer to buy the Goods subject to the Conditions.
2.4 Orders are accepted on the basis that the sum due for the Goods shall be the price specified on the Quotation.
2.5 All trading prices are subject to the addition of VAT at the current rate at the date of invoice.
2.6 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer's acceptance of these Conditions.
3 DELIVERY AND RISK
3.1 The Goods shall be delivered to the Buyer at the Seller's address. The risk in the Goods shall pass to the Buyer upon such delivery taking place.
3.2 The Buyer shall collect the Goods within 5 days of the Seller giving it notice that the Goods are ready for collection, failing which the Goods will be deemed to have been delivered, risk in the Goods shall pass to the Buyer and the Seller may store the Goods until delivery at the Buyer's expense.
3.3 Alternatively and if agreed by the parties the Seller may, following delivery, arrange for carriage of the Goods to a location specified by the Buyer subject to the payment by the Buyer of a delivery and packing charge which shall be due on the due date for payment for the Goods. The carrier shall be deemed to be the Buyer's agent.
3.4 Any dates specified by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice.
3.5 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, refund of ticket prices, cancellation costs and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 60 days.
4 DAMAGE IN TRANSIT/INSURANCE
4.1 The Seller shall have no liability in relation to any damage to the Goods whilst in transit and the Buyer should ensure it has its own insurance in respect of the Goods from the date of delivery, being the date of collection or the date the Goods are loaded on to the carrier.
4.2 If the Seller has arranged for carriage to the Buyer and the Goods are damaged on arrival, the Seller must be notified by the close of business on the third working day following delivery failing which it will be assumed that the Goods have been delivered to the Buyer undamaged and in accordance with the contract and may only thereafter be returned at the discretion of the Seller.
5 NON DELIVERY
The Seller must be notified of non-delivery within 3 working days of receipt of the invoice relating to the Goods. If the Seller is not notified during this period then it accepts no liability in relation to replacing the Goods which will be deemed to have been delivered to and accepted by the Buyer in accordance with the contract.
6 BASIS OF SALE
6.1 No variation of the Conditions shall be binding unless agreed in writing by the Seller.
6.2 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the contract the Buyer acknowledges that he does not rely on and waives any claim for breach of any such representations which are not so confirmed.
6.3 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer's own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
7.1 Unless otherwise agreed by the Seller in writing, all Goods must be paid for in full in cleared funds without deduction or set off on or prior to delivery.
7.2 Time for payment shall be of the essence.
7.3 The Seller reserves the right to charge the Buyer interest on any overdue amounts at the annual rate of 4% above the base lending rate from time to time of National Westminster Bank PLC, accruing on a daily basis from the due date until payment is made, whether before or after any judgment.
7.4 The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
7.5 The Seller reserves the right to charge the Buyer on a full indemnity basis for any legal and/or administrative costs that it incurs attempting to recover or recovering any money due.
7.6 The Seller reserves the right to suspend further deliveries relating to other orders to the Buyer in the event of any payments in respect of Goods being overdue.
7.7 All payments payable to the Seller under the Contract shall become due immediately on its termination despite any other provision.
8 RETENTION OF TITLE
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 the Goods and all 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 upon request of the Seller, promptly inform the Seller of the whereabouts of the Goods and keep such Goods stored separately in such a way that they remain 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;
8.2.4 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 and shall hold the proceeds of any insurance claim relating to Goods supplied by the Seller but not yet paid for in trust for the Seller; and
8.2.5 not permit the Goods to be taken outside of the United Kingdom.
8.3 The Buyer's right to possession of the Goods shall terminate immediately if:
8.3.1 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
8.3.2 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
8.3.3 the Buyer encumbers or in any way charges any of the Goods.
8.4 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.
8.5 On termination of the Contract howsoever caused, the Seller's (but not the Buyer's) rights contained in this condition 8 shall remain in effect.
9.1 Subject to conditions 1, 3, 4, 5 and 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 any breach of these conditions, any use made or resale by the Buyer of any of the Goods or of any product incorporating any of the Goods, any warranty, condition, term or duty implied by statute or under common law and any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
9.2 The Seller shall have no liability in respect of any defect arising in the Goods from fair wear and tear, wilful damage, negligence on the part of the Buyer or any other third party, abnormal working conditions, failure to follow the Seller's instructions, or misuse.
9.3 The Seller shall be under no liability to the Buyer if the total price for the Goods has not been paid by the due date for payment.
9.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods shall be notified to the Seller within 3 working days from delivery or where the defect or failure was not apparent on reasonable inspection, within 3 working days 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, the Seller shall have no liability for such defect or failure and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the contract.
9.5 Where any valid claim based on a defect or failure of the Goods is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods or the part in question free of charge, or at the Seller's sole discretion, to refund the Buyer the price of the Goods or a proportionate part of such price, but the Seller shall have no further liability to the Buyer.
9.6 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.
9.7 The Seller shall not be liable to the Buyer for any consequential loss or damage which shall include but is not limited to loss of profit, damage or liability arising from any delay in delivery or defect in or failure of the system or any part of the Goods supplied including the refund of any ticket prices or cancellation fees, loss of business, loss of use, depletion of goodwill, costs, expenses or other claims for consequential compensation whatsoever and howsoever caused which arise out of or in connection with the Contract.
9.8 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 performing or any failure to perform any of the Seller's obligations in relation to the Goods if the delay or failure is due to any cause beyond the Seller's reasonable control.
9.9 Nothing in these conditions excludes or limits the liability of the Seller for death or personal injury caused by the Seller's negligence or under section 2(3) of the Consumer Protection Act 1987 or for fraud or fraudulent misrepresentation or for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability.
If the Buyer fails to observe or perform any of its obligations hereunder or commences liquidation or ceases or threatens to cease to trade or if serious doubts arise as to the Buyer's solvency then in any such case the Seller shall immediately become entitled (without prejudice to its other rights under this contract) to suspend or cancel further performance of the Contract.
11.1 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.
11.2 If any provision of the Contract or any part of any provision is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
11.3 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
11.4 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
11.5 Any notices shall be in writing and shall be delivered by hand or sent by first class post, facsimile or e-mail to the address, facsimile number or e-mail address given by each party to the other for the purpose.
11.6 Such notice shall be deemed to have been received on the day of delivery if delivered by hand, on the second day after posting if sent by first class post and on the second working day after sending if sent by facsimile or e-mail.
11.7 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
11.8 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.