These are the terms and conditions (“T&Cs") of Focusrite Audio Engineering Limited (the “Company"), a company incorporated and registered in England and Wales with registered number 02357989 whose registered offices are at Windsor House, Turnpike Road, High Wycombe HP12 3FX and whose VAT number is GB 218 9881 62, which shall apply to any Contract entered into between the Company and a Buyer.
The Buyer's attention is in particular drawn to the limitations and exclusions of liability contained in conditions 4.5 (Company's liability for delays), 5.2 and 5.3 (Company's liability for non-delivery), 9.6 (Company's warranty liability), 10.3 (Company's Contract liability) and 12 (Force Majeure).
1.1 The definitions and rules of interpretation in these T&Cs apply in these conditions:
- Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
- Buyer: the person, firm or company who purchases the Goods from the Company in the course of business.
- Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, on the terms set out in these T&Cs.
- Delivery Point: the place where delivery of the Goods is to take place under condition 4.1.
- Force Majeure Event: has the meaning given to it in condition 12.
- Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2 A reference to a statute or statutory provision is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Headings do not affect the interpretation of these T&Cs.
1.4 Any words following the terms “including", “include", or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2 APPLICATION OF TERMS
2.1 The Contract shall be concluded solely on the terms set out in these T&Cs to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 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 (including where such terms or conditions are referred to in any document forming part of the Contract) and the Buyer hereby waives any rights and remedies it may have under any such terms or conditions.
2.3 These T&Cs apply to all the Company's sales and any variation to these T&Cs and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by Mr Phil Dudderidge of the Company.
2.4 The Contract formed on these T&Cs constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition 2.4 shall exclude or limit the Company's liability for fraudulent misrepresentation.
2.5 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these T&Cs.
2.6 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.7 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.8 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1 The quantity and description of the Goods shall be as set out in the Company's quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published 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 and nothing in the Contract shall constitute a sale by sample.
4.1 Delivery of the Goods shall take place at the Company's place of business or such other location agreed to and confirmed in writing by the Company (the “Delivery Point").
4.2 The Buyer shall take delivery of the Goods at the Delivery Point within seven (7) days of the Company giving it notice that the Goods are ready for delivery.
4.3 Delivery of the Goods shall be completed when the Company makes the Goods available for the Buyer to take delivery at the Delivery Point.
4.4 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and the time of delivery is not of the essence. If no dates are so specified, delivery shall be within a reasonable time.
4.5 Company's liability for delays: The Buyer acknowledges that the Company: (i) may not have Goods readily available for despatch at the time a Contract is entered into; and (ii) relies on the contractual performance of third party suppliers in order to effect the prompt delivery of Goods. Accordingly, subject to condition 10.1, the Buyer agrees that:
- the Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer's failure to provide the Company with adequate delivery instructions or any other instructions, documents, licences or authorisations that are relevant to the supply of the Goods;
- except where such liability arises as a direct result of the Company's wilful default or deliberate non-performance of its obligations under the Contract, the Company shall not be liable for any damage or loss (including economic, loss of profits or business, depletion of goodwill and similar losses), costs, damages, charges or expenses caused (whether directly or indirectly) by any delay in the delivery of the Goods; and
- the Buyer may only serve notice to terminate the Contract where any delay in the delivery of the Goods exceeds: (i) thirty (30) days from the estimated date of delivery specified by the Company; or (ii) if no estimated delivery date was specified, forty five (45) days from the date of the written acknowledgement of order issued by the Company in accordance with condition 2.6.
4.6 If for any reason the Buyer fails to take delivery of any of the Goods within three (3) Business Days of the Company notifying the Buyer that they are ready to be taken, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations then the Company may store the Goods until collection by the Buyer, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance costs).
4.7 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
4.8 If the Company delivers to the Buyer a quantity of Goods of up to 10% more or less than the quantity taken by the Company, 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.
4.9 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.10 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.
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company'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.
5.2 Company's liability for non-delivery: Subject to condition 10.1:
- the Company shall not be liable for any non-delivery of the Goods that is caused by a Force Majeure Event or the Buyer's failure to provide the Company with adequate delivery instructions or any other instructions, documents, licences or authorisations that are relevant to the supply of the Goods;
- except where such liability arises as a direct result of the Company's wilful default or deliberate non-performance of its obligations under the Contract, the Company shall not be liable for any non-delivery of the Goods unless the Buyer gives written notice to the Company of the non-delivery within seven (7) days of the date upon which: (i) the Company notifies the Buyer that the Goods are ready for the Buyer to take delivery; or (ii) (where applicable) the Goods have been despatched to the Buyer by the Company; or (iii) (where applicable) such other date which the Company has notified the Buyer that the Goods are estimated to be delivered upon.
5.3 Any liability of the Company 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.
6.1 Risk in the Goods shall pass to the Buyer on completion of delivery in accordance with condition 4.3.
6.2 Title to the Goods shall not pass to the Buyer until the Company 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 Company from the Buyer on any account.
6.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
- hold the Goods on a fiduciary basis as the Company's bailee;
- store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company's property;
- not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
- maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
- give the Company such information relating to the Goods as the Company may require from time to time.
6.4 The Buyer may resell the Goods before title has passed to it solely on the following conditions:
- any sale shall be effected in the ordinary course of the Buyer's business at full market value; and
- any such sale shall be a sale of the Company's property on the Buyer's own behalf and the Buyer shall deal as principal (and not as the Company's agent) when making such a sale; and
- title to the Goods shall pass from the Company to the Buyer immediately before the time at which such resale by the Buyer occurs.
6.5 Where title to the Goods has not yet passed to the Buyer in accordance with these T&Cs, the Buyer's right to possession of the Goods and its rights under condition 6.4 shall terminate immediately and without notice if:
- 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
- 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 Company 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
- the Buyer encumbers or in any way charges any of the Goods.
6.6 Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Company if the Company becomes subject to any of the events listed in condition 6.5, or the Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under the Contract on the due date for payment.
6.7 The Company shall be entitled to recover payment for the Goods from the Buyer notwithstanding that title to any of the Goods has not passed from the Company.
6.8 The Buyer grants the Company, 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.
6.9 Where the Company 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 Company to the Buyer in the order in which they were invoiced to the Buyer.
6.10 The expiry or termination of the Contract for any reason shall not affect any provision of the Contract which is expressed (or by implication is intended) to survive or operate in the event of expiry or termination and, in particular, the provisions of this condition 6 (save for the Buyer's right to resell Goods pursuant to condition 6.4) shall remain in effect.
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company's price list published on the date of delivery or deemed delivery.
7.2 The price for the Goods shall be exclusive of any value added tax 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.
8.1 Subject to condition 8.4, unless otherwise agreed by the Company in writing payment of the price for the Goods is due 30 days after the date on which the Goods are invoiced.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received the respective payment in full and in cleared funds.
8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 2% above the base lending rate from time to time of National Westminster Bank PLC accruing on a daily basis until payment is made, whether before or after any judgment. This condition 8.6 shall not apply in the event that the Company exercises its rights under condition 8.7.
8.7 Notwithstanding condition 8.6, the parties hereby agree that the Company shall have the right to claim statutory interest on any late payments pursuant to the terms of the Late Payment of Commercial Debts (Interest) Act 1998.
9.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
9.2 The Company warrants that (subject to the other provisions of these conditions) upon delivery, and for a period of 12 months from the date of delivery, the Goods shall:
- be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
- be reasonably fit for their usual purpose (provided such purpose is held out by the Company).
9.3 The warranty given by the Company in condition 9.2 shall be conditional upon:
- the Buyer giving written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within seven (7) days of the time when the Buyer discovers or reasonably ought to have discovered the defect; and
- the Company being given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company's cost for the examination to take place there.
9.4 The warranty in condition 9.2 shall not apply where:
- the Buyer makes any further use of such Goods after giving notice pursuant to condition 9.3.1; or
- the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are no such instructions) good trade practice; or
- the Buyer alters or repairs such Goods without the written consent of the Company.
9.5 Subject to condition 9.3 and condition 9.4, if any of the Goods do not conform with the warranty in condition 9.2 the Company shall (at its option): (i) repair or replace such Goods (or the defective part); or (ii) refund the price of such Goods at the pro-rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company's expense, return the Goods or the part of such Goods which is defective to the Company.
9.6 Company's warranty liability: The Buyer agrees and acknowledges that the remedies set out in condition 9.5 are sufficient remedy for a breach by the Company of the warranty provided at condition 9.2 and that, except as provided in this condition 9, the Company shall have no further liability for a breach of the warranty set out in condition 9.2 in respect of the Goods.
Any Goods which are replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the original 12 month warranty period referred to in condition 9.2. Where the Company retains rights in any replaced Goods (including under condition 6), such rights shall apply equally to any repaired or replacement Goods.
10 LIMITATION OF LIABILITY
10.1 Nothing in these conditions excludes or limits the liability of the Company:
- for death or personal injury caused by the Company's negligence; or
- under section 2(3), Consumer Protection Act 1987; or
- for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
- for fraud or fraudulent misrepresentation.
10.2 Save for any liability arising under condition 10.3, the following provisions set out the entire financial liability of the Company (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 T&Cs;
- any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
- any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.3 Company's Contract liability: Subject to condition 10.1 and condition 10.2:
the Company'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
- the Company shall not be liable to the Buyer under any circumstances for any pure economic loss, loss of profit, loss of business, loss of or damage to data or information, depletion of goodwill or otherwise, 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.
10.4 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.
11.1 The Company may assign the Contract or any part of it to any person, firm or company.
11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
12 FORCE MAJEURE
The Company shall not be liable for any failure or delay in the performance of its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. In the event of a Force Majeure Event, the Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer). A “Force Majeure Event" means any event beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, failure of energy services or transport network, failure of communications network, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials. If a Force Majeure Event continues for a continuous period in excess of sixty (60) days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract, such notice to take effect no earlier than fifteen (15) Business Days from the date of such notice.
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 If any provision or part-provision of the Contract 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 be deemed modified to the minimum extent necessary to make it valid, legal, enforceable and reasonable. If such modification is not possible, the relevant provision or part-provision 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.
13.3 Failure or delay by the Company 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.
13.4 Any waiver by the Company 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.
13.5 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.
13.6 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.
14.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post (by airmail post if to an address outside the country of posting), or by recorded delivery, or by commercial courier, or sent by fax:
- (in case of communications to the Company) to its registered office, or to such changed address as shall be notified to the Buyer by the Company, or to the fax number given in the Contract; or
- (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (where the Buyer is not a company, or it has provided an alternative address in writing to the Company) to any address of the Buyer set out in any document which forms part of the Contract, or to such other address as shall be notified to the Company by the Buyer, or to the fax number given in the Contract.
14.2 Communications shall be deemed to have been received:
- if sent by pre-paid first class post or recorded delivery, at 9:00am two Business Days after posting (or five Business Days if sent by airmail post) in each case exclusive of the day of posting;
- if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed;
- if delivered by hand, on the day of delivery; or
- if sent by fax on a Business Day prior to 4.00 pm, at the time of transmission and otherwise at 9:00am on the next Business Day.
14.3 Communications addressed to the Company shall be marked for the attention of Mr Phil Dudderidge.