Terms and Conditions
1.1 Definitions. In these Conditions, the following definitions apply:
Bose: Bose Limited (registered in England and Wales with company number 1187672 and having its registered office address at Bose House Quayside, Chatham Maritime, Chatham, Kent, ME4 4QZ);
Bose Products: products or components manufactured by Bose which the Supplier distributes as a Bose PRO-Partner;
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.6;
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions;
Customer: the person or firm who purchases the Goods from the Supplier;
Delivery Location: has the meaning given in clause 4.2;
Discounted Price: the Full Price less any discount agreed between the Supplier and the Customer in consideration of the Customer’s agreement to purchase a certain quantity or value of Goods from the Supplier within a defined period;
Force Majeure Event: has the meaning given in clause 11;
Full Price: the lower of:
a) the highest price at which the Supplier makes the Goods available for sale during the period in which the Customer has agreed to purchase a certain quantity or value of Goods from the Supplier; and
b) where the Order or the Contract designates a price from which a discount shall be given, such designated price.
Goods: the goods (or any part of them) set out in the Order;
Invoice Dispute: has the meaning given in clause 8.7;
Month: a calendar month;
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Supplier’s quotation or such other form as communicated by the Customer or agreed between the parties;
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier;
Supplier: Spectra Displays Limited (registered in England and Wales with company number 02428206 and having its registered office address at 25 Lancaster Way Business Park, Ely, Cambridgeshire, CB6 3NW); and
Warranty Period: has the meaning given in clause 5.1.
1.2 Construction. In these Conditions, the following rules apply:
a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
b) a reference to a party includes its personal representatives, successors or permitted assigns;
c) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
e) a reference to writing or written includes faxes and e-mails
BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the website, catalogues or brochures of the Supplier are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
3.1 The Goods are described in the Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the use of the Specification by the Supplier. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4.1 The Supplier shall ensure that:
each delivery of the Goods is accompanied by a delivery note which shows invoice date, all relevant reference numbers of the Customer and the Supplier, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the expense of the Supplier.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (the “Delivery Location”) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the unloading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the failure of the Customer to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the failure of the Customer to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to take delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the failure of the Supplier to comply with its obligations under the Contract:
a) delivery of the Goods shall be deemed to have been completed at 9:00 am on the fifth Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 Subject to clause 6, the Supplier warrants that on delivery, and for a period of twelve months from the date of delivery (except as otherwise notified or advertised by the Supplier) (the “Warranty Period”), the Goods shall:
a) conform in all material respects with the Specification;
b) be free from material defects in design, material and workmanship; and
c) be fit for any purpose held out by the Supplier.
5.2 Subject to clauses 6 and clause 5.3, if:
a) the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
b) the Supplier is given a reasonable opportunity of examining such Goods; and
c) the Customer (if asked to do so by the Supplier) returns such Goods to the place of business of the Supplier at the cost of the Customer,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods.
5.3 The Supplier shall not be liable for failure of the Goods to comply with the warranty set out in clause 5.1 in any of the following events:
a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2; or
b) the defect arises because the Customer failed to follow the oral or written instructions of the Supplier as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same; or
c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer; or
d) the Customer alters or repairs such Goods without the written consent of the Supplier; or
e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
f) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the failure of the Goods to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
The Supplier will pass on, and assign the rights to if required, any warranties and guarantees provided by Bose for the Bose Products. Any warranties or guarantees provided by Bose will apply instead of the warranties provided by the Supplier in clause 5.
TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the earlier of:
a) the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and
b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 7.4.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the property of the Supplier;
b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.2; and
e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
7.4 Subject to clause 7.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
a) it does so as principal and not as the agent of the Supplier; and
b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
7.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2 then, without limiting any other right or remedy the Supplier may have:
a) the right to resell the Goods by the Customer or use them in the ordinary course of its business ceases immediately; and
b) the Supplier may at any time:
(i)require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii)if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
PRICE AND PAYMENT
8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the published price list of the Supplier in force as at the date of delivery.
8.2 Where the Customer has agreed to purchase a certain quantity or value of Goods from the Supplier within a defined period, and the Customer fails to purchase the agreed quantity within the agreed time, then the Supplier shall be entitled to charge the Customer an amount equal to the difference between the Discounted Price and the Full Price, such sum to be a debt payable immediately upon demand.
8.3 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
a) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); or
b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.4 Subject to clause 8.5, the price of the Goods is inclusive of the costs and charges of packaging, insurance and transport of the Goods but is exclusive of amounts in respect of any applicable VAT. The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier any additional amounts in respect of any applicable VAT as are chargeable on a supply of the Products.
8.5 The Supplier shall be entitled to charge an additional amount in respect of postage where the Goods are to be delivered on an expedited basis, or if they are bulky items, items for which the Supplier considers special postage to be required to ensure safe delivery, or items to be delivered to a location other than as specified in the Order. The Supplier will not provide or cover the costs for shipping to locations in the UK that it considers remote (for example, the Scottish Highlands and Islands) or locations outside of the UK mainland.
8.6 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
8.7 If the Customer disputes an invoice (an “Invoice Dispute”), it shall provide the Supplier with details of the Invoice Dispute in writing within ten Business Days of the receipt of the invoice.
8.8 If the Customer does not notify the Supplier of an Invoice Dispute within the time specified in clause 8.7, the Customer shall be deemed to have accepted the amount of the invoice and shall be obliged to make payment in accordance with the provisions of clause 8.9.
8.9 The due date for payment shall be as set out in the Order or, if the Order does not provide a due date for payment, the Customer shall pay the Supplier’s invoice in full and in cleared funds in the currency in which the invoice is denominated by the end of the Month following the Month in which the invoice was sent to the Customer. Payment shall be made to the bank account nominated in writing by the Supplier, by debit card or by credit card. Time of payment is of the essence.
8.10 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the base rate of Barclays Bank plc from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.11 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set-off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
TERMINATION AND SUSPENSION
9.1 If the Customer becomes subject to any of the events listed in clause 9.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
9.2 For the purposes of clause 9.1, the relevant events are:
a) the Customer fails to pay any amount due under the Contract according to clause 8.9 and remains in default not less than 20 Business Days after being notified to make such payment;
b) the Customer commits a material breach of any other term of the Contract which breach is irremediable or (if the breach is remediable) fails to remedy that breach within a period of 20 Business Days after being notified to do so;
c) the Customer repeatedly breaches any of the terms of the Contract in such a manner as to justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
d) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
e) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
f) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
g) (being an individual) the Customer is the subject of a bankruptcy petition or order;
h) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
i) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
j) (being a company) the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
k) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
l) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2(d) to clause 9.2(k) (inclusive);
m) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
n) the financial position of the Customer deteriorates to such an extent that in the opinion of the Supplier the capability of the Customer to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
o) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
9.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.2(d) to clause 9.2(o), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the outstanding unpaid invoices and interest of the Supplier.
9.5 Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination.
9.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude the liability of the Supplier for:
a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
b) fraud or fraudulent misrepresentation;
c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
d) defective products under the Consumer Protection Act 1987; or
e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
10.2 Subject to clause 10.1:
a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of revenue, loss of contracts, loss of anticipated savings, loss of goodwill, or any indirect or consequential loss arising under or in connection with the Contract; and
b) the total liability of the Supplier to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a “Force Majeure Event”). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for three months, the party not affected may terminate the Contract by giving one month’s notice to the affected party.
12.1 Assignment and other dealings.
a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post or other next working day delivery service, commercial courier, fax or e-mail.
b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
b) If one party gives notice to the other of the possibility that any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
12.7 Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with the law of England and Wales.
12.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non- contractual disputes or claims).