1.1 In these Conditions the following words and expressions shall have the following meanings:-
1.1.1 "The Company" shall mean dB Broadcast Ltd.
1.1.2 "The Products" shall mean the Products, materials or services (such as system integration comprising Project management, engineering design, software configuration, prefabrication, installation etc.) to be provided by the Company in accordance with the Company's Written quotation (if accepted by the Customer), or the Customer's Written order (if accepted by the Company),.
1.1.3 "The Customer" shall mean the person, firm or company receiving the Products as detailed in the order. 1.1.4 "Contract" means the contract for the sale and purchase of the Products;
1.1.5 "Terms" means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Customer and the Company;
1.1.6 "Writing" and any similar expression, includes facsimile transmission and comparable means of communication, but not electronic mail.
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
2. Products and Price
2.1 The Company will supply the Products to the Customer at the price stated or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company's published price list current at the date of acceptance of the order. Where the Products are supplied for export from the United Kingdom, the Company's published export price list shall apply. Such supply is subject always to the Terms, which shall govern the Contract. No order submitted by the Customer shall be deemed to be accepted by the Company unless and until confirmed in Writing by the Company's authorised representative.
2.2 Unless specified as a separate line item within the offer, the Price does not include carriage and packing and insurance which shall be payable by the Customer. The Customer shall arrange adequate insurance from the time of delivery.
2.3 The Customer will be liable for any export or import duties payable and warrants that the Products will not be exported in contravention of any statute, law, regulation or rule which would result in the Company having to make any payments to any authority as a result of such export and, without prejudice to the generality of the foregoing, the Customer warrants that the Products will not be exported to any countries where export of the Products is prohibited by the United States of America as a result of the policies of any such country.
2.4 The Customer agrees to indemnify and keep indemnified the Company in respect of any damages, interest, fines, penalties, expenses or costs payable by the Company or its officers or employees as a result of any breach of clause 2.3.
2.5 All prices are exclusive of value added or similar taxes.
2.6 Unless otherwise indicated, quotations supplied by Company are valid for thirty (30) days only from the date of issue.
2.7 The Company's employees or agents are not authorised to make any representations concerning the Products unless confirmed by the Company in Writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.8 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Products which is not confirmed in Writing by the Company is followed or acted on entirely at the Customer's own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
2.9 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.10 The Company reserves the right, by giving Written notice to the Customer at any time before delivery, to increase the price of the Products to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, quantities or specifications for the Products which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions).
3.1 Payment for the Products is to be made on demand but in any event not later than 30 after the date of the invoice rendered by the Company to the Customer.
3.2 In the event that any invoice is not paid on its due date the Company reserves the right (a) to cancel the contract or suspend any further deliveries to the Customer; (b) to appropriate any payment made by the Customer to such of the Products (or the products supplied under any other contract between the Customer and the Comapny) as the Company may think fit (notwithstanding any purported appropriation by the Customer); and (c) to charge the Customer interest on the amount outstanding under the invoice at the rate of four per cent above the base lending rate of Barclays Bank PLC from time to time in force as well before as after any judgement.
4.1 All Company Products are covered for a period of 12 months from delivery. The warranty on third party equipment supplied by the Company will be on the basis of the terms offered by the manufacturer.
4.2 The guarantee set out in clause 4.1 above is subject to the following limitations.
4.2.1 Provided always that the customer shall inspect the Products for any possible defect within two weeks from the date of delivery from the Company's premises or such other agreed delivery point stating in writing the defect alleged.
4.2.2 The Company shall be entitled to inspect the Products at its premises and the Customer shall deliver them to those premises, the cost of delivering them to the Company will be at the Customers expense. The freight cost associated with returning the repaired Product from the Company to the Customer will be at the Company's expense.
4.2.3 Should the Products be found not to be defective then the Customer shall pay the Company for the cost of any time spent and expenditure incurred by the Company in checking or testing the Products.
5. Trade Marks, Patents and Registered Designs
5.1 The Customer shall not tamper with, alter or deface any Trade Mark indication on the Products and shall not repackage the Products for export without the Company's prior written consent.
5.2 The Customer shall indemnify the Company against all damages, interest, fines, penalties, expenses or costs for which the Company is liable as a result of any Products manufactured to the Customer's design or specification infringing any patent or registered design.
5.3 All specifications, illustrations, photographs, drawings and similar materials provided by the Company for the Customer's use in relation to the Products' and any tools supplied shall remain the Company's property and may not be copied in any form or shown to any third party without the prior written consent of the Company.
6. Scope of Contract
6.1 Under no circumstances shall the Company have any liability of whatever kind for:
6.1.1 Any defect arising from wear and tear, accident, improper use by the Customer (otheraccordance with the instructions or advice of the Company) or neglect by the Customer.
6.1.2 Any Products which have been adjusted or modified or repaired otherwise than by the Company. 6.1.3 The suitability of any Products for any particular purpose or use under specific conditions whether or not the purpose or conditions were known or communicated to the Company.
6.1.4 Any variations in the qualities or dimensions of any Products or changes of their specifications or substitution of any materials or components if the variation or substitution does not materially affect the characteristics of the Products, and the substituted materials or components are of a quality equal or superior to those originally specified.
7. Risk Delivery and Performance
7.1 Products are delivered to the Customer when the Company makes them available to the Customer or any agent of the Customer or any carrier (who shall be the Customer's agent whoever pays the charges) at the Company's premises or any other delivery point agreed by the Company.
7.2 Risk in the Products passes when they are delivered (as defined in clause 7.1 above) to the Customer or, if the Customer wrongfully fails to take delivery of the Products, the time when the Company has tendered delivery of the Products.
7.3 Where the Products are delivered in instalments, each instalment shall be deemed to be the subject of a separate contract and no default or failure by the Company in respect of any one or more instalments shall vitiate the contract in respect of the Products previously delivered or undelivered Products.
7.4 Any dates quoted by the Company for the delivery of the Products are approximate only and shall not form part of the contract and the Customer acknowledges that in the performance expected of the Company no regard has been paid to any quoted delivery dates. The Products may be delivered by the Company in advance of the quoted delivery date on giving reasonable notice to the Customer.
7.5 If the Customer fails to take delivery of the Products or any part of them once the Company has notified the Customer they are ready for delivery or fails to provide any instructions, documents, licenses, consents or authorisations required to enable the Products to be delivered the Company shall be entitled upon giving written notice to the Customer to store or arrange for the storage of the Products and then risk in the Products shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall pay to the Company all costs and expenses including storage and insurance charges arising from its failure. Alternatively. whether as to all or some of the Products, the Company may sell the Producrts at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
7.6 The Company shall not be liable for any penalty, loss, injury, damages or expenses arising from any delay or failure in delivery or performance from any clause at all nor shall any such delay or failure entitle the Customer to refuse to accept any delivery or performance or repudiate the contract unless mutually agreed in writing by the Customer and the Company. Subject thereto, if the Company fails to deliver the Products (or any instalment) for any reason other than any cause beyond the Company's reasonable control or the Customer's fault, and the Company is accordingly found liable to the Customer notwithstanding the above exclusion of liability, the Company's liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar products to replace those not delivered over the price of the Products.
7.7 All requests by the customer to reschedule or cancel all or part of any order for products shall be invalid except if agreed to in writing by Company. In the event that such agreement is given then without prejudice to any other rights that Company may have, Company shall be entitled to impose a charge for rescheduling or accepting cancellation of such order.
7.8 Claims for shortages must be made within 7 days of delivery. Claims for damage must be made within 3 days of delivery.
8.1 The Company shall transfer only such title or rights in respect of the Products as the Company has and if the Products or any part thereof are purchases from a third party shall transfer only such title or rights as that party has and has transferred to the Company.
8.2 Notwithstanding the earlier passing of Risk, title in the Products shall remain with the Company and shall not pass to the Customer until the amount due under the invoice for the Products and all other products agreed to be sold by the Company to the Customer for which payment is then due has been paid in full, including any interest payable.
8.3 Until title passes the customer shall hold the Products as bailee for the Company and shall store or mark them so that they can at all times be identified as the property of the Company. During such period the Customer shall insure the Products for their full replacement value including Value Added Tax.
8.4 The Company shall be entitled at any time before title passes to require the Customer to deliver up the Products to the Company and, if the Customer fails to do so forthwith, enter on any premises of the Customer or any third party where the Products are stored and to repossess all or any of the Products and so terminate (without any liability to the Customer), the Customer's right to use, sell or otherwise deal in them.
8.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of the Company, but if the Customer does so all moneys owing by the Customer to the Company shall (without limiting any other right or remedy of the Company) forthwith become due and payable.
8.6 The Company shall be entitled to maintain an action for the price of any Products not withstanding that title in them has not passed to the Customer.
9. Extent of Liability
9.1 The Company shall have no liability to the Customer (other than liability for death or personal injury resulting from the Company's negligence and except where the Products are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977)) for any loss or damage of any nature arising from any breach of any express or implied warranty or conditions of this contract or from any negligence, breach of statutory or other duty on the part of the Company, by reason of any representation (unless fraudulent), for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) or in any other way out of or in connection with the performance or purported performance of or failure to perform the contract except in accordance with this condition or condition 4, save to the extent that any such loss or damage is insured by the Company and the Company's insurers are willing to make payment for any such loss or damage.
9.2 The Company shall not be liable where any Products (the price of which does not include carriage) are lost or damaged in transit and all claims by the Customer shall be made against the carrier.
9.3 If the Customer establishes that any Products have not been delivered the Company shall, at its option, replace with similar Products any Products which are missing.
9.4 The delivery of any replacement Products shall be at the Company's premises or such other delivery point specified for the Products.
9.5 Where the Company is liable in accordance with this condition in respect of only some or part of the Products this contract shall remain in full force and effect in respect of the other parts of the Products and no set off or other claim shall be made by the Customer against or in respect of such other parts of the Products.
9.6 Where the Products are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by these Terms.
9.7 A claim by the Customer which is based on any defect in the quality or condition of the Products or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to the Company within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Products and the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Prooducts had been delivered in accordance with the Contract.
9.8 Where a valid claim in respect of any of the Products which is based on a defect in the quality or condition of the Products or their failure to meet specification is notified to the Company in accordance with these Terms, the Company may replace the Products (or the part in question) free of charge or, at the Company's sole discretion, refund to the Customer the price of the Products (or a proportionate part of the price), in which case the Company shall have no further liability to the Customer.
9.9 Subject to the foregoing the entire liability of the Company under or in connection with the Contract shall not exceed the price of the Products, except as expressly provided in these Terms.
9.10 Public liability is limited to £5 million.
9.11 The Company shall not be liable to the Customer 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 Company's obligations in relation to the Products, if the delay or failure was due to any cause beyond the Company's reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Company's reasonable control:
9.11.1 Act of God, explosion, flood, tempest, fire or accident;
9.11.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
9.11.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
9.11.4 import or export regulations or embargoes;
9.11.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);
9.11.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
9.11.7 power failure or breakdown in machinery.
10.1 If a claim is made against the Customer that the Products infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of a drawing, design or specification supplied by the Customer, the Company shall indemnify the Customer against all loss, damages, costs and expenses awarded against or incurred by the Customer in connection with the claim, or paid or agreed to be paid by the Customer in settlement of the claim, provided that:
10.1.1 the Company is given full control of any proceedings or negotiations in connection with the claim;
10.1.2 the Customer shall give the Company all reasonable assistance for the purposes of any such proceedings or negotiations;
10.1.3 except pursuant to a final award, the Customer shall not pay or accept the claim, or compromise any such proceedings without the consent of the Company (which shall not be unreasonably withheld);
10.1.4 the Customer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Customer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavours to do);
10.1.5 the Company shall be entitled to the benefit of, and the Customer shall accordingly account to the Company for, all damages and costs (if any) awarded in favour of the Customer which are payable by, or agreed with the consent of the Customer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
10.1.6 without limiting any duty of the Customer at common law, the Company may require the Customer to take such steps as the Company may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Company is liable to indemnify the Customer under this clause.
11 Insolvency of Customer
11.1 This clause 11 applies if:
11.1.1 the Customer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
11.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
11.1.3 the Customer ceases, or threatens to cease, to carry on business; or
11.1.4 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
11.2 If this clause applies then, without limiting any other right or remedy available to the Company, the Company may cancel the Contract or suspend any further deliveries under the Contract withouany liability to the Customer, and if the Products have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12 Export terms
2.1 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Terms, but if there is any conflict between the provisions of Incoterms and these Terms, the latter shall prevail.
12.2 Where the Products are supplied for export from the United Kingdom, the provisions of this clause 11 shall (subject to any special terms agreed in Writing between the Customer and the Company) apply notwithstanding any other provision of these Terms.
12.3 The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Products into the country of destination and for the payment of any duties on them.
12.4 Unless otherwise agreed in Writing between the Customer and the Company, the Products shall be delivered fob the air or sea port of shipment and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Products Act 1979.
12.5 The Customer shall be responsible for arranging for testing and inspection of the Products at the Company's premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Products which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
12.6 Unless otherwise required by the Company, payment of all amounts due to the Company shall be made by an irrevocable letter of credit, in a form acceptable to the Company, to be opened by the Customer in favour of the Company and confirmed by a bank in the United Kingdom acceptable to the Company within 14 days after the Contract is concluded.
12.7 Where the quotation, order or specification in respect of the Contract provides that the Customer shall not offer the Products for resale in a country or any other country notified by the Company to the Customer at or before the time the Customer's order is placed, the Customer will not sell the Products to any person if the Customer knows or has reason to believe that that person intends to resell the Products in any such country.
13. Use of Reconditioned Material
Products supplied by Company may include parts or materials that are not new but which have been reconditioned to a like-new state. The Customer shall not be entitled to reject Products or seek any diminution in the price of the Product on the basis of the inclusion of reconditioned parts or materials within the prodicts.
14.1 These Terms and Conditions shall apply to all contracts for the sale or supply of Products by Company to the Customer to the exclusion of all other terms and conditions including any terms or conditions which the Customer may purport to apply under any purchase or confirmation of order or similar document.
14.2 No variation or amendments of this contract shall be binding on the Company unless confirmed by it in writing and referring to this condition.
14.3 The Company shall not be liable for any failure in the performance of any of its obligations under the contract caused by factors outside its control.
14.4 The Contract shall be governed by English Law and the Customer consents to the exclusive jurisdiction of the English Courts in all matters regarding the contract except to the extent that the Company invokes the jurisdiction of the Courts of any other country.
14.5 The headings of conditions are for convenience of reference only and shall not affect their interpretation.
14.6 Any notice to be given under this contract shall be in writing, sent by facsimile transmission or by first class prepaid letter post to the receiving party at its business address as last notified in writing to the other party and shall be deemed to have been given on the date of the facsimile transmission or on the day following that on which the notice was posted.
14.7 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer, and for giving the Company any necessary information relating to the Products within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
14.8 The quantity, quality and description of the Products and any specification for them shall be as set out in the Company's quotation (if accepted by the Customer) or the Customer's order (if accepted by the Company).
14.9 If the Products are to be manufactured or any process is to be applied to the Products by the Company in accordance with a specification submitted by the Customer, the Customer shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with, or paid or agreed to be paid by the Company in settlement of, any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company's use of the Customer's specification.
14.10 The Company reserves the right to make any changes in the specification of the Products which are required to conform with any applicable statutory or E.U. requirements or, where the Products are to be supplied to the Company's specification, which do not materially affect their quality or performance.
14.11 No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in Writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
14.12 No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision