Supply of goods

Terms and Conditions

1. Definitions

1.1 In these Conditions the following definitions apply:

Affiliate: in relation to a party means any person that has a Controlling Interest in or is Controlled by or under common Control with that party.

Applicable Law: means an entity that directly or indirectly Controls, is Controlled by or is under Common control with, another entity.

Conditions: means the terms and conditions of sale set out in this document and any special and/or additional conditions agreed in writing by Fine Sounds.

Contract: means the agreement between Fine Sounds and the Dealer for the sale and purchase of the Goods, incorporating these Conditions and any Dealer Agreement between the parties.

Controlling Interest: means the legal or beneficial ownership or control (directly or indirectly including control by formal or informal agreements between two or more persons) of:

(a) a majority of the voting rights exercisable at general meetings of an undertaking on all, or substantially all, matters;

(b) the right to appoint or remove directors having a majority of the voting rights exercisable at meetings of the board of directors of that undertaking on all, or substantially all, matters;
and Control and Controlled shall have a corresponding meaning.

Dealer: means the customer placing an order with Fine Sounds for the Goods and who is named as the dealer in the Dealer Agreement.

Dealer Agreement: means the Dealer Agreement entered into or to be entered into between Fine Sounds and the Dealer.

Fine Sounds: means F Sounds UK Ltd trading as Fine Sounds UK registered in Scotland with registered number SC658402 and having its registered office at Cowan & Partners 60 Constitution Street, Leith, Edinburgh, Lothian, Scotland, EH6 6RR.

Force Majeure: shall include but without limitation strikes, labour disputes, disruption to the supply chain, and/or transportation network, political unrest, financial distress, war, civil disorder, insurrection, riot, fire, explosion, terrorism, epidemic or pandemic and natural disasters.

Good or Goods: means the goods and related accessories and spare parts and other physical material set out in the Order and to be supplied by Fine Sounds to the Dealer in accordance with the Contract.

Order: means an order for the Goods from Fine Sounds placed by the Dealer by the order method or methods required by Fine Sounds from time to time.

VAT: means value added tax under the Value Added Taxes Act 1994 or other similar sale or fiscal tax applying to the sale of the Goods.

Working Days: means value added tax under the Value Added Taxes Act 1994 or other similar sale or fiscal tax applying to the sale of the Goods.

1.2. In these Conditions, unless the context requires otherwise:

1.2.1 a reference to the Contract includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any);

1.2.2 any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;

1.2.3 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;

1.2.4 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

1.2.5 a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

1.2.6 a reference to a gender includes each other gender;

1.2.7 words in the singular include the plural and vice versa;

1.2.8 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

1.2.9 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;

1.2.10 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time;

1.2.11. a reference to legislation includes all subordinate legislation made from time to time under that legislation; and

1.2.12. a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.

2. Application of these Conditions

2.1 These Conditions shall apply to all contracts for the sale of Goods by Fine Sounds to the Dealer. They supersede any previously issued terms and conditions of purchase or supply.

2.2 No terms or conditions endorsed on, delivered with, or contained in the Dealer’s purchase conditions, Order, confirmation of order, specification or other document shall form part of the Contract except to the extent that Fine Sounds otherwise agrees in writing.

2.3 These Conditions incorporate the terms of any Dealer Agreement entered into separately between Fine Sounds and the Dealer. In the event of any conflict between the terms of any Dealer Agreement and these Conditions, the terms of the Dealer Agreement shall take precedence.

2.4 No variation or addition to these Conditions shall be effective unless agreed in writing by Fine Sounds.

2.5 Acceptance of delivery of the Goods shall be deemed to be conclusive evidence of the Dealer’s acceptance of these Conditions.

2.6 Fine Sounds employees or agents are not authorised to make any representations concerning the Goods unless confirmed by Fine Sounds in writing and in entering into the Contract the Dealer acknowledges that it does not rely on any such representations which are not so confirmed.

2.7 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 Fine Sounds shall be subject to correction without any liability on the part of Fine Sounds and without any prior notification. Marketing and other promotional material relating to the Goods are illustrative only and do not form part of the Contract.

3. Orders

3.1. Each Order by the Dealer to Fine Sounds shall be an offer to purchase the Goods subject to the Contract including these Conditions.

3.2 If Fine Sounds is unable to accept an Order, it shall notify the Dealer as soon as reasonably practicable.

3.3 Fine Sounds may accept or reject an Order at its discretion. An order shall not be accepted and no binding obligation to supply any Goods shall arise, until the earlier of:

3.3.1 Fine Sounds giving written acceptance of the Order; or

3.3.2 Fine Sounds dispatching the Goods or notifying the Dealer that they are available for collection (as the case may be).

4. Prices

4.1 The price for the Goods will be the price set out in Fine Sounds published price list in force as at the date of acceptance of an Order.

4.2 The price of the Goods:

4.2.1 excludes VAT which the Dealer shall be additionally liable to pay at the prevailing rate, subject to the receipt of a valid VAT invoice; and

4.2.2 excludes the costs of packaging and transport of the Goods which shall be invoiced to the Dealer in addition where the Order fails to meet Fine Sounds minimum requirements for free delivery as set out in the Fine Sounds Delivery PDF. The cost of any delivery charges shall be as set out in the Fine Sounds Delivery PDF. The Fine Sounds Delivery PDF is sent out from time to time with Fine Sounds price lists.

4.3 Fine Sounds may increase its prices at any time by updating its price list from time to time with such updated prices to take effect not earlier than 30 days after notification of any increase.

5. Payment

5.1 Fine Sounds shall invoice the Dealer for the Goods, partially or in full, at any time following acceptance of the Order.

5.2 Unless a credit account privilege has been agreed in accordance with clause 6 below, payment must be made in full before the dispatch of any Goods.

5.3 The Dealer shall pay all invoices:

5.3.1 in full without deduction or set off, in cleared funds;

5.3.2 in GBP (British Pounds (£));and

5.3.3 to the bank account nominated by Fine Sounds from time to time.

5.4 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:

5.4.1 Fine Sounds may, without limiting its other rights, charge interest on such sums at 4% per year above the based rate of Lloyds Bank from time to time in force; and

5.4.2 interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.

6. Credit Limit

6.1 Credit facility privileges are granted at the sole discretion of the Fine Sounds. To apply for a credit facility contact:

6.2 A credit checking process forms part of the application for a credit facility. Multiple credit referencing agencies may be used by Fine Sounds for this process. By signing the credit reference form or requesting a credit facility the Dealer agrees to this checking taking place and any implications this may have.

6.3 Fine Sounds will typically only grant a credit facility once a sufficient trading history has been established. Credit facilities will not be available until the Fine Sounds UK Accounts Department sends the applicant Dealer notice in writing confirming the credit facility has been granted and is available for use. Credit facilities will be reviewed annually and may be amended in Fine Sounds sole discretion.

6.4 Goods supplied against a credit account must be paid for within the stated time period on the invoice (30 days usually) from the date of invoice issue. Fine Sounds may withhold all further supplies and refuse to fulfil any Orders where the Dealer exceeds any credit limit or fails to make payment in accordance with the time for payment stated on the invoice.

6.5 Fine Sounds reserves the right to withdraw credit facilities if the account becomes overdue or the monthly credit limit is exceeded or where the account is not used for six months’ or longer. Fine Sounds employs third-party professional collecting agents to recover outstanding debts.

7. Delivery

7.1 The Goods shall be delivered by Fine Sounds, or its nominated carrier, to the location specified in the Order or otherwise agreed between the parties.

7.2 The Goods shall be deemed delivered on arrival only of the Goods at the location specified in clause 7.1 above by Fine Sounds or its nominated carrier (as the case may be).

7.3 Fine Sounds may deliver the Goods in instalments. Any delay or defect in an instalment shall not entitle the Dealer to cancel any other instalment.

7.4 The Dealer shall not be entitled to reject a delivery of the Goods on the basis that an incorrect volume of the Goods has been supplied.

7.5 Delivery of the Goods shall be accompanied by a delivery note stating:

7.5.1 the date of the Order;

7.5.2 the product numbers, type and quantity of the Goods in the consignment; and

7.5.3 any special handling instructions.

7.6 Time of delivery is not of the essence. Fine Sounds shall use its reasonable endeavours to meet delivery dates but such dates are indicative only.

7.7 Fine Sounds shall not be liable for any delay in or failure of delivery caused by:

7.7.1 the Dealer’s failure to make the location available;

7.7.2 the Dealer’s failure to prepare the location as required for delivery of the Goods;

7.7.3 the Dealer’s failure to provide Fine Sounds with adequate instructions for delivery or otherwise relating to the Goods;

7.7.4 Force Majeure.

7.8 If the Dealer fails to accept delivery of the Goods Fine Sounds shall store and insure the Goods pending delivery, and the Dealer shall pay all costs and expenses incurred by Fine Sounds in doing so.

7.9 If five (5) Business Days following the due date for delivery of the Goods, the Dealer has not taken delivery of or collected them, Fine Sounds may resell or otherwise dispose of the Goods without any obligation or liability to the Dealer, except as provided for in clauses 7.9.1 and 7.9.2. Fine Sounds shall:

7.9.1 deduct all reasonable storage charges and costs of resale; and

7.9.2 account to the Dealer for any excess of the resale price over, or invoice the Dealer for any shortfall of the resale price below, the Price paid by the Dealer or the Goods.

8. Risk

Risk in the Goods shall pass to the Dealer on delivery.

9. Title

9.1 Title to the Goods shall pass to the Dealer once Fine Sounds has received payment in full and cleared funds for the Goods.

9.2 Until title to the Goods has passed to the Dealer, the Dealer shall:

9.2.1 hold the Goods as bailee for Fine Sounds;

9.2.2 store the Goods separately from all other material in the Dealer’s possession;

9.2.3 take all reasonable care of the Goods and keep them in the condition in which they were delivered;

9.2.4 insure the Goods from the date of delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their Price.

9.2.5 ensure that the Goods are clearly identifiable as belonging to Fine Sounds;

9.2.6 not remove or alter any mark on or packaging of the Goods;

9.2.7 inform Fine Sounds immediately if it becomes subject to any of the events or circumstances set out in clauses 15.1.2 and 15.2.1 to 15.2.6 (inclusive); and

9.2.8 on reasonable notice permit Fine Sounds to inspect the Goods during the Dealer’s normal business hours and provide Fine Sounds with such information concerning the Goods as Fine Sounds may request from time to time.

9.3 Notwithstanding clause 8.2, the Dealer may use or resell the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clauses 15.2.1 to 15.2.6 (inclusive) has occurred or is likely to occur.

9.4 If the Dealer resells the Goods in accordance with clause 8.3, title to the Goods shall pass to the Dealer immediately prior to the resale.

9.5 If, at any time before title to the Goods has passed to the Dealer, the Dealer informs Fine Sounds, or Fine Sounds reasonably believes, that the Dealer has or is likely to become subject to any of the events specified in clauses 15.2.1 to 15.2.6 (inclusive), Fine Sounds may:

9.5.1 require the Dealer at the Dealer’s expense to re-deliver the Goods to Fine Sounds; and

9.5.2 if the Dealer fails to do so promptly, enter any premises where the Goods are stored and repossess them.

10. Manufacturer’s Warranty

Some of the Goods come with a manufacturer’s guarantee. For details of the applicable terms and conditions, please refer to the manufacturer’s warranty provided with the Goods.

11. Fine Sounds Warranty for the Goods

11.1 The Goods are intended for use only in the UK. Fine Sounds do not warrant that the Goods comply with the laws, regulations or standards outside the UK.

11.2 Fine Sounds provide a warranty that on delivery and for a period of [12] months from delivery, the Goods shall:

11.2.1 conform in all material respects with their description; and

11.2.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and

11.2.3 be fit for any purpose held out by Fine Sounds.

11.3 Subject to clause 11.4, if:

11.3.1 The Dealer gives Fine Sounds notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 11.2;

11.3.2 Fine Sounds are given a reasonable opportunity of examining the Goods; and

11.3.3 Fine Sounds ask the Dealer to do so, the Dealer returns the Goods to Fine Sounds at its cost,

Fine Sounds will, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

11.4 Fine Sounds will not be liable for breach of the warranty set out in clause 11.2 if:

11.4.1 any further use of the Goods is made after notice is given to Fine Sounds under clause 11.3;

11.4.2 the defect arises as a result of Fine Sounds following any drawing, design or specification supplied by the Dealer;

11.4.3 the Dealer alters or repairs the Goods without Fine Sounds written consent;

11.4.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

11.4.5 the Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

11.5 Fine Sounds will only be liable to the Dealer for the Goods' failure to comply with the warranty set out in clause 11.2 to the extent set out in this clause 11.

11.6 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.

11.7 These Conditions also apply to any repaired or replacement Goods supplied by Fine Sounds to the Dealer.

12. Limitation of liability

12.1 Neither party limits its liability for:

12.1.1 death or personal injury caused by its negligence, or that of its employees, agents or sub-contractors; or

12.1.2 fraud by it or its employees; or

12.1.3 breach of any obligation as to title implied by statute; or

12.1.4 any other act or omission, liability for which may not be limited under Applicable Law.

12.2 Neither party shall be liable to the other party for:

12.2.1 any indirect, special or consequential loss or damage; or

12.2.2 any loss of profits, business opportunities, revenue or damage to goodwill.

13. Confidentiality and announcements

13.1 The Dealer shall keep confidential all Confidential Information of Fine Sounds and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:

13.1.1 any information which was in the public domain at the date of the Contract;

13.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;

13.1.3 any information which is independently developed by the Dealer without using information supplied by Fine Sounds; or

13.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.

13.2 This clause 13 shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination of the Contract.

13.3 The Dealer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.

14. Force majeure

Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 90 days, the party not affected may terminate the Contract by written notice to the other party.

15. Termination

15.1 Fine Sounds may terminate the Contract at any time by giving notice in writing to the Dealer if:

15.1.1 the Dealer fails to make any payment to Fine Sounds when due and such payment remains outstanding for thirty (30) days;

15.1.2 the Dealer undergoes a Change of Control;

15.1.3 the Dealer is otherwise in breach of its obligations under these Conditions or the Contract and such breach is not capable of remedy or, if capable of remedy, continues unremedied for twenty-one (21) days after written notice is given to the Dealer.

15.2 Either party may terminate the Contract forthwith by written notice to the other party if the other party:

15.2.1 is dissolved or files a petition in bankruptcy; or

15.2.2 if a petition in bankruptcy is filed and it is not dismissed within sixty (60) days after the filing thereof;

15.2.3 becomes insolvent or seeks relief pursuant to any bankruptcy, insolvency or reorganisation statute; or

15.2.4 makes an assignment for the benefit of its creditors; or

15.2.5 discontinues its business or if a custodian, receiver or trustee in bankruptcy is appointed over all or a substantial portion of its assets; or

15.2.6 if any similar event or proceeding occurs under the laws under which it is organised.

15.3 If the Dealer becomes aware that any event has occurred, or circumstances exist, which may entitle Fine Sounds to terminate the Contract under this clause 15, it shall immediately notify Fine Sounds in writing.

15.4 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of Fine Sounds at any time up to the date of termination.

16. Notices

16.1 A notice given to a party under or in connection with these Conditions shall be in writing and shall be delivered by hand or sent by pre-paid first-class post, recorded delivery or special delivery, or sent by e-mail to the email address of that party, in each case to the party’s address stated in the Dealer Agreement or to such other address as that party may notify the other party from time to time.

16.2 Delivery of a notice is deemed to have taken place (provided that the other requirements in this clause 16 have been satisfied) if delivered by hand, at the time the notice is left at the address, if sent by post on the second Working Day after posting, or if sent by e-mail at the time of transmission (unless notice is received of unsuccessful delivery) unless such deemed receipt would occur outside business hours (meaning 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of deemed receipt), in which case deemed receipt will occur when business next starts in the place of receipt and all references to time are to local time in the place of receipt).

16.3 This clause 16 does not apply to the service of proceedings or any other documents in any legal action.

17. Cumulative remedies

The rights and remedies provided in the Contract for Fine Sounds only are cumulative and not exclusive of any rights and remedies provided by law.

18. Time

Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Dealer’s obligations only.

19. Further assurance

The Dealer shall at the request of Fine Sounds, and at the Dealer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.

20. Entire agreement

20.1 The parties agree that the Contract and any documents entered into pursuant to it or in connection with it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

20.2 Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.

20.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.

21. Variation

No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.

22. Assignment

22.1 The Dealer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without Fine Sounds prior written consent.

23. Set-off

23.1 Fine Sounds shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Dealer under the Contract or under any other contract which Fine Sounds has with the Dealer.

23.2 The Dealer shall pay all sums that it owes to Fine Sounds under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

24. No partnership or agency

The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.

25. Equitable relief

The Dealer recognises that any breach or threatened breach of the Contract may cause Fine Sounds irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to Fine Sounds, the Dealer acknowledges and agrees that Fine Sounds is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

26. Severance

26.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.

26.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

27. Waiver

27.1 No failure, delay or omission by Fine Sounds in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

27.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by Fine Sounds shall prevent any future exercise of it or the exercise of any other right, power or remedy by Fine Sounds.

28. Compliance with law

The Dealer shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.

29. Conflicts within contract

If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the Dealer Agreement the following order of priority shall prevail:

The Dealer Agreement, the Contract (excluding the Dealer Agreement), these Conditions and the Order.

30. Third party rights

30.1 Except as expressly provided for in clause 30.2, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.

30.2 Any Affiliate of Fine Sounds shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.

31. Governing law

The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

32. Jurisdiction

The parties irrevocably agree 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, its subject matter or formation (including non-contractual disputes or claims).

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