In these Terms and Conditions “Company” means Earshot Communications Limited. “Customer” means the person or company that purchases the “Goods” and “Goods” means the goods specified in the Company’s invoice.
1. ORDERS AND ACKNOWLEDGEMENTS
We undertake to execute all postal shipments the same day if ordered before 12.00 during week days, fax and telephone orders received in the office before 3.00 PM on the day that they are received will go same day if courier service is required. An acknowledgement is only normally sent in cases where it is not possible to make an ex-stock delivery. We do not require written confirmation of your order. However, should you be required to send confirmations, please ensure that they are clearly marked to avoid duplication.
We will despatch all items listed as requirements on your order less any items that are out of stock at the time your order is processed. The balance will be shipped as soon as possible. We are happy to negotiate call-off orders.
All prices quoted are ex the company works, packing and carriage charges will be invoiced as separate items and no credit will be given for returned items unless return is due to damage or wrong items dispatched by the company. There will be no credit on the above costs if the customer has ordered the incorrect items unless agreed in writing with the company. If there is any significant increase in the cost of materials or labour, which takes place between the date of quotation (or the date of the order where no quotation is made) and the date of despatch, the Company reserves the right to amend the price.
Every quotation is made and every order acknowledged on the condition that the goods will be invoiced and payment thereon will be made at the price ruling when the goods are supplied. The prices are quoted exclusive of VAT.
3. CREDIT & PAYMENT
Credit may be given to approved Customers at the sole discretion of the Company and may require both bank and trade references. At its sole option, the Company may cancel, suspend or amend credit previously granted at any time.
Account customers must pay in full 30 days from the date of invoice following despatch of the goods. We reserve the right to charge interest at the rate of 2% per month on all overdue accounts with a minimum charge of £2.50. Goods will not be despatched to a Customer whose account contains unpaid invoices exceeding these terms. Customers will bear all bank charges where payment is made by wire transfer.
4. RESERVATION OF TITLE (PROPERTY AT RISK)
(i) Risk in the Goods shall pass to the Customer when the Customer or its agent takes delivery of the Goods or collects them or, in the case of installation by the Company, when notice of completion has been sent to the Customer.
(ii) Even though risk in the Goods has passed in accordance with clause (i) the Customer will not own the Goods until one of the following events occurs:
(a) The Company is paid for the Goods and no other amounts are outstanding from the Customer to the Company in respect of other goods or services supplied by the Company.
(b) The Customer sells the Goods in accordance with this contract in which case ownership of the Goods will pass to the Customer immediately before the Goods are delivered to the Customer’s customer.
(c) The Company waives its right under clause 4 (ii) in respect of specified Goods whereupon ownership of those Goods will immediately vest in the Customer.
(iii) Before title has passed to the Customer under the terms of clause (ii) and, without prejudice to any of its rights, the Company shall have the right to recover and resell the goods or any part of them and its servants or agents may enter upon the Customer’s premises for that purpose.
(iv) To enable the Company to recover and resell Goods in the circumstances set out in
(iii) above where the Goods or any part of them are on third-party premises the Customer hereby irrevocably appoints the Company acting by its servants or agents as agent for the Customer giving the Company acting as aforesaid the same rights to go onto the third-party’s premises as the Customer itself.
(v) Should the Customer alter the Goods by subjecting it to any manufacturing process or incorporating it into another product or mixing it in any way the Company will own the resulting product (‘altered goods”) until payment due under all contracts between the Company and the Customer has been made in full and all the Company’s rights under these clauses shall extend to the altered goods.
(vi) Until payment due under all contracts between the Customer and the Company has been made in full:
(a) The Customer shall hold upon trust for the Company the Goods and altered Goods.
(b) In the event of the sale or hire of the Goods or the altered Goods by the Customer it shall hold the proceeds of such sale or hire on trust for the Company in a separate Bank account opened by the Customer for this purpose.
(c) The Company may trace all such proceeds of sale or hire charges received by the Customer through any Bank or other account maintained by the Customer.
(d) In the event of sale or hire of the Goods or the altered Goods by the Customer in the ordinary course of its business the Customer shall assign its rights to recover the selling price or hire charges from the third parties concerned to the Company if required to do so in writing by the Company.
(e) The Customer shall not assign to any other person any rights arising from a sale or hire of the Goods or the altered Goods without the express consent of the Company in writing.
(vii) As the insurable risk in the Goods shall pass to the Customer as soon as the Goods are delivered to him or to his Customer or to his order and pending disposal, the Goods are sold to the Customer against all insurable risks.
(viii) If Goods are destroyed by an insured risk prior to the same being paid for by the Customer, the Customer shall receive the proceeds of the insurance as trustee for the Company.
5. LOSS OR DAMAGE IN TRANSIT
Packing of goods shall be examined by the Customer on receipt and notification of damage or breakage shall be sent in writing both to the Company and the carrier within 5 days of receipt of Goods. In the case of loss in transit or delay in delivery, notification in writing shall be sent to the Company and the by the Customer within 5 days of the date of invoice.
‘Unexamined’ signatures do not relieve the Customer of this liability or the provisions of this Clause. If the Customer shall fail to give such notice the Goods shall be deemed to be in all respects in accordance with the contract and the Customer shall be deemed to have accepted the Goods and shall pay for the same accordingly.
6.REJECTION OF GOODS AND HANDLING CHARGES, DELAYS AND RETURNS
Goods wrongly ordered or found to be extra to requirements will be taken back by the Company only if they are in an unused condition and purchased within the preceding thirty working days. In such cases a 10% handling charge will be levied - minimum £2. Damaged Goods should be notified to us immediately. Goods on special order, i.e. non-stock Goods, may not be returned or such orders cancelled. All returns must be pre-approved by the Company.
Applications for returns must be made in writing.
Unless previously withdrawn the Company’s offer to supply the Goods is valid for 30 days from the date of quotation. For quotations requiring longer validity, written request and acceptance must be made. All quotations are subject to the Goods remaining unsold at the time that any order is received from an account holder or cash payment is received from a non-account holder.
8. PACKAGE AND CARRIAGE
The cost of packing and carriage will be charged on all orders unless otherwise agreed in written confirmation between the Company and Customer.
9. CANCELLATION AND VARIATION OF ORDERS
No variation of these terms shall be binding on the Company unless acknowledged in writing by the Company. Orders for Goods may not be cancelled or suspended without the Company’s written consent and on such terms as the Company may reasonably require. Any cancellation or suspension, if accepted, shall be upon the express term that the Company shall be indemnified against any loss incurred wholly or in part by such cancellation or suspension.
The Company shall not be responsible for any failure to perform its obligations hereunder due to circumstances beyond its control.
It is an express condition of sale that liability is limited to the cost of the Goods proved to be defective.
Under no circumstances shall the Company be liable to the Customer or to third-parties for loss (including, but not limited to, loss of profit or data), damage or injury howsoever arising. The Customer shall indemnify the Company in respect of all damage or injury occurring to any personal property and against any actions and expenses in that connection for which the Company may become liable in respect of the Goods sold if the damage or injury is caused by negligence of the Customer or his servants or agents.
12. SPECIAL CONDITIONS
In the event of the Customer’s order containing special conditions, the order will only be accepted on the understanding that those conditions do not differ from our own, or, if there are any differences, that such conditions shall be waived by the Customer.
13. HEALTH AND SAFETY AT WORK
In compliance with statute, the Company confirms that the Goods supplied do not present a hazard to health and safety when properly used and when used for the purpose for which they are designed and provided also that the Customer or his servants or his agents takes reasonable and normal precautions in their use.
The Company offers the Customer the benefit of the warranty period offered by the manufacturer.
No additional warranties are offered unless agreed in writing between both parties.
The failure of the Company at any time or for any period to enforce any one or more of these Terms and Conditions shall not be a waiver of them or a waiver of the right to enforce such Terms and Conditions on any future occasion.
16. ABOVE CONDITIONS
Each of the above conditions shall be read and construed independently of each other so that, if one or more is held to be invalid, then the remaining Terms and Conditions shall be valid to the extent they are not held to be so invalid.
Further, in the event that any Term or Condition shall be found to be void but will be valid if some part thereof were deleted then such Term and Condition shall apply with such modification as may be necessary to make it valid and effective.
This contract shall be governed by English law and the English Courts shall have exclusive jurisdiction in any dispute which may arise save that the Company may institute and maintain proceedings in respect of this contract in any country. Proceedings against a foreign customer may be served by post addressed to him at any consulate of his country or residence of nationality. All quotations are given and all orders are accepted subject to the Company’s conditions of Sale and no other.
Any modification of these conditions is ineffective unless made by written agreement between the parties.
18. FINAL RIGHTS
Earshot Communications terms and conditions are to take precedence over any other terms and conditions.