SKANDA ACOUSTICS LIMITED
Conditions of Sale
The Buyer’s attention is in particular drawn to the provisions of Condition 8.2
1.1 In these Conditions the following words have the following meanings:
Buyer: the person, firm or company who buys the Goods from Skanda Acoustics.
Contract: the contract between Skanda Acoustics and the Buyer for the sale and purchase of the Goods, in accordance with these Conditions;
Force Majeure Event: an event or circumstance beyond a party’s reasonable control;
Goods: any goods (or any part of them) set out in the Order.
Order the Buyer's order for the Goods in the Buyer's purchase order form, the Buyer's written acceptance of Skanda Acoustics' quotation, or overleaf, as the case may be.
Skanda Acoustics: Skanda Acoustics Limited (CRN 05548728) whose registered office is at 67 Clywedog Road North, Wrexham Industrial Estate, Wrexham LL13 9XN;
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 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.
2 BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of all other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing and the Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any of its documents that is inconsistent with these Conditions.
2.2 Each Order constitutes an offer by the Buyer to purchase Goods subject to these Conditions. The Buyer must ensure that the terms of the Order and any applicable specification are complete and accurate. A quotation for the Goods given by Skanda Acoustics shall not constitute an offer and is valid for a period of 30 days only from its date, provided that Skanda Acoustics has not previously withdrawn it.
2.3 The Order shall only be deemed to be accepted when Skanda Acoustics issues a written acceptance of the Order or (if earlier) delivers the Goods to the Buyer at which point the Contract shall come into existence and may not be cancelled by the Buyer except with the agreement in writing of Skanda Acoustics and on the terms that the Buyer shall indemnify Skanda Acoustics in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, changes and expenses incurred by Skanda Acoustics as a result of cancellation.
3.1 The quantity and description of the Goods shall be as set out in Skanda Acoustics’ quotation or acceptance of Order. Skanda Acoustics reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
3.2 All drawings, descriptive matter, specifications and advertising issued by Skanda Acoustics and any descriptions or illustrations contained in Skanda Acoustics’ catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the Contract and this is not a sale by sample.
3.3 Any advice or recommendation given by or on behalf of Skanda Acoustics to the Buyer as to the storage, application or use of the Goods which is not confirmed in writing by Skanda Acoustics is followed or acted upon entirely at the Buyer’s own risk, and Skanda Acoustics shall not be liable for any such advice or recommendation which is not so confirmed.
4.1 Skanda Acoustics shall deliver the Goods to the location set out in the Order or to such other location as the parties may agree (Delivery Location) at any time after Skanda Acoustics notifies the Buyer that the Goods are ready. Delivery is completed on the completion of unloading the Goods at the Delivery Location.
4.2 Any dates quoted for delivery are approximate only, and time for delivery is not of the essence.
4.3 If Skanda Acoustics fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Skanda Acoustics 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 Buyer's failure to provide Skanda Acoustics with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 If the Buyer fails to accept delivery of the Goods when they are ready for delivery:
(a) delivery of the Goods shall be deemed to have been completed at 9am on the 3rd business day after the day on which Skanda Acoustics notified the Buyer that the Goods were ready;
(b) Skanda Acoustics may store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance); and
(c) if 14 days after the day on which Skanda Acoustics notified the Buyer that the Goods were ready for delivery the Buyer has not accepted delivery of them, Skanda Acoustics may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
4.5 The Buyer will provide at its expense at the Delivery Location adequate and appropriate equipment and manual labour for loading/unloading the Goods. In the event that the Buyer does not do so Skanda Acoustics reserves the right to charge the Buyer £20 per hour for every hour after the initial hour that it takes to load or unload the Goods.
4.6 Skanda Acoustics reserves the right to deliver and charge for Goods within the manufacturers tolerances as to weight dimension and quantity. If Skanda
Acoustics delivers up to and including 5% more or less than the quantity of the Goods ordered by the Buyer, the Buyer may not reject them but on receipt of a notice from the Buyer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
4.7 Skanda Acoustics may deliver the Goods by instalments which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
5.1 Risk in the Goods shall pass to the Buyer on completion of delivery.
5.2 Title to the Goods shall not pass to the Buyer until Skanda Acoustics has received in payment in full (in cash or cleared funds) for the Goods in which case title to the Goods shall pass at the time of payment.
5.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as Skanda Acoustics’ property;
(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 on Skanda Acoustics’ behalf for their full price against all risks from the date of delivery;
(d) notify Skanda Acoustics immediately if it becomes subject to any of the events listed in condition 5.5 and give Skanda Acoustics such other information relating to the Goods as Skanda Acoustics may from time to time require.
5.4 Subject to condition 5.5 the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Skanda Acoustics receives payment on condition that the Buyer acts as principal and not as Skanda Acoustics’ agent in making any sale and title to the Goods shall pass from Skanda Acoustics to the Buyer immediately before the time at which the resale by the Buyer occurs.
5.5 The Buyer’s right to possession of the Goods (and its right to resell or use the Goods in accordance with condition 5.4) shall terminate immediately if:
(a) the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified to do so;
(b) the Buyer takes any step or action in connection with its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Buyer's financial position deteriorates to such an extent that in Skanda Acoustics' opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
and Skanda Acoustics may at any time require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and, if the Buyer fails to do so promptly, Skanda Acoustics may enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
6 PRICE & PAYMENT
6.1 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 Skanda Acoustics’ published price list in force as at the date of delivery.
6.2 Skanda Acoustics may, by giving notice to the Buyer 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 Skanda Acoustics’ control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the specification of the Goods; or
(c) any delay caused by any instructions of the Buyer or failure to give Skanda Acoustics adequate or accurate information or instructions.
6.3 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Goods. A charge may be made for pallets, cases and packaging where appropriate. No allowances will be made when collection is arranged by the Buyer.
6.4 Payment for the Goods is due in full (without any deduction, set-off, counterclaim or withholding (except for any deduction or withholding required by law) in pounds sterling:-
(a) prior to delivery where the Buyer does not have an account with Skanda Acoustics; or
(b) within 30 days after delivery where the Buyer has an account with Skanda Acoustics
and time for payment shall be of the essence and no payment shall be deemed to have been received until Skanda Acoustics has received cleared funds.
6.5 If the Buyer fails to pay Skanda Acoustics any sum due pursuant to the Contract then Skanda Acoustics reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
7.1 Where Skanda Acoustics is not the manufacturer of the Goods, it will endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to Skanda Acoustics
7.2 Skanda Acoustics 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 will:
(a) conform in all material respects with their description and any applicable specification;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
7.3 Skanda Acoustics shall not be required to supply test certificates unless the same are requested at the time of placing the order and Skanda Acoustics may charge a fee for any certificate supplied.
7.4 Where the Contract provides for testing or inspection of the Goods by or on behalf of the Buyer before delivery whether at Skanda Acoustics’ site or elsewhere, then upon Skanda Acoustics giving notice of the availability of the Goods for inspection/testing the Buyer shall inspect and/or test the Goods within 7 days of such notice. If the Buyer does not notify Skanda Acoustics in writing that the Goods are not in accordance with the Contract, specifying the matter complained of, then the Buyer shall conclusively be deemed to have accepted the Goods as being in accordance with the Contract and shall not thereafter be entitled to reject the Goods on the grounds of anything which such testing or inspection has or would have revealed.
7.5 Subject to Condition 7.6 if:
(a) the Buyer gives written notice of the defect to Skanda Acoustics during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranties in Condition 7.2;
(b) Skanda Acoustics is given a reasonable opportunity of examining such Goods; and
(c) the Buyer (if asked to do so by Skanda Acoustics) returns such Goods to Skanda Acoustics' place of business at Skanda Acoustics' cost,
(d) Skanda Acoustics shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
7.6 Skanda Acoustics shall not be liable for the Goods failure to comply with the warranties set out in Condition 7.2 if:
(a) the Buyer makes any further use of such Goods after giving notice in accordance with Condition 7.5;
(b) the defect arises because the Buyer failed to follow Skanda Acoustics’ written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of Skanda Acoustics following any drawing, design or specification supplied by the Buyer;
(d) the Buyer alters or repairs such Goods without Skanda Acoustics’ written consent;
(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 their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.7 The Buyer shall satisfy itself that the Goods are suitable for any product or application for which they are to be used before the Goods are incorporated into such product or application.
7.8 Except as provided in this Condition 7 Skanda Acoustics shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranties set out in Condition 7.2 and, in particular, 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.
7.9 These Conditions shall apply to any repaired or replacement Goods supplied by Skanda Acoustics.
8 LIMITATION OF LIABILITY
8.1 Nothing in these Conditions excludes or limits the liability of Skanda Acoustics 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 which it would be illegal for Skanda Acoustics to exclude or attempt to exclude its liability.
8.2 Subject to Condition 8.1:
(a) Skanda Acoustics shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory
duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Skanda Acoustics’ total liability to the Buyer 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 paid by the Buyer for the Goods.
9 FORCE MAJEURE
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 a Force Majeure Event. If the period of delay or non-performance continues for 6 months, the party not affected may terminate the Contract by giving 14 days written notice to the affected party.
10.1 Assignment Skanda Acoustics may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights and obligations under the Contract. The Buyer 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 Skanda Acoustics.
10.2 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract nor any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
10.3 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.4 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy; nor prevent or restrict the further exercise of that or any other right or remedy.
10.5 Severance. 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.
(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 Condition, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier or by facsimile transmission.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 10.6(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00am 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; and if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.7 Third party rights. No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms.
10.8 Governing law & Jurisdiction. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
10.9 Purchase of Goods sold by Skanda Acoustics. Skanda Acoustics only sells Goods to commercial customers acting in the course of their business. By placing an Order, the Buyer represents and warrants that they are acting on behalf of a lawfully operating business entity and are not acting as a consumer. The Buyer also warrants that they are authorised to enter into the Contract on behalf of the business they represent.
Last reviewed: December 2017