Terms and Conditions of Business
SELLER’S TERMS AND CONDITIONS PREVAIL AND ACCEPTANCE OF QUOTATIONS
In these terms and conditions (i) ‘the Seller’ means DigiScan Ltd, a company incorporated and registered in England and Wales under Company Registration Number 10335106 (ii) ‘the Buyer’ means any person, firm, company or other entity accepting the Seller’s offer to purchase goods and (iii) ‘goods’ means any goods, materials or services that are offered for sale by the Seller.
No conditions or stipulations (i) in, or attached to, the Buyer’s purchase order (or other form of order) or (ii) implied by trade, custom, practice or course of dealing, and which, in any such case, are inconsistent with the Seller’s terms and conditions of business, or which purport to add to them or to modify them in any way, will have any effect (and are hereby excluded) unless expressly accepted by the Seller in writing and in advance. In the absence of any acceptance by the Seller (in writing and in advance) of any such variation(s), the Buyer will be deemed (a) to have withdrawn or waived the said conditions or stipulations and (b) to contract solely on the Seller’s terms and conditions of business. Only a director of the Seller has the authority to vary any of the Seller’s terms and conditions of business, including those set out herein.
Any quotation or estimate issued by the Seller is subject to correction for errors or adjustments and should not be considered or construed as an offer which is capable of acceptance by the Buyer. Each order constitutes an offer by the Buyer to purchase the specified goods from the Seller in accordance with these terms and conditions and a contract will not come into existence until the Seller has expressly accepted the Buyer’s order in writing (or in such other manner as the Seller determines). The Buyer must ensure that the terms of each order, and any related specification(s), are clear, complete and accurate.
AVAILABILITY, SUPPLY AND DELIVERY
Each order by the Buyer, and acceptance thereof by the Seller, constitutes a separate contract and, for the avoidance of doubt, the Seller is not obliged to accept any order received from any Buyer, or otherwise to conduct business with any prospective Buyer, at any time (whether or not the Seller has accepted orders from, or otherwise conducted business with, such Buyer in the past). Acceptance of the Buyer’s order is at the Seller’s sole discretion and is subject to the relevant goods being available and unsold. The Seller reserves the right to refuse, at any time, any order for goods (or any part thereof) to which these (or any other) terms and conditions apply on grounds of non-availability, or on any other grounds or basis, and the Seller shall incur no liability to the Buyer (or to any other party) in respect of any such refusal. Upon acceptance of an order by the Seller, the Buyer will be sent a receipt confirming the contract including details of the order.
The Seller reserves the right to make delivery (where this forms part of the contract with the Buyer) by installments unless specified to the contrary in the contract terms and expressly agreed to by the Seller in writing. Where installment deliveries are made by the Seller, the Buyer shall accept, and make payment for, the relevant goods on a pro rata basis. Each installment shall constitute a separate contract and, as such, any delay in the delivery of, or any defect in, any such installment will not entitle the Buyer to cancel any other installment.
Delivery periods, except where otherwise stipulated, are effective from the date of written acceptance by the Seller of the Buyer’s order, at the address of the Seller’s branch which handles the Buyer’s account. The Seller will use reasonable endeavours to comply with any date(s), period(s) or schedule(s) quoted to the Buyer for the delivery of goods but no such date(s), period(s) or schedule(s) shall be of the essence or otherwise contractually binding on the Seller and the Buyer shall have no claim against the Seller in the event of the Seller’s failure or inability, for whatever reason, to perform its contractual obligations by any such date, within any such period or in accordance with any such schedule, unless specifically agreed to in writing (and in advance) by the Seller. Any delivery period(s) stated in any estimates/quotations issued by the Seller are those current at the date of those estimates/quotations and are subject to confirmation by the Seller at the time of acceptance of the Buyer’s order. Unless there is an agreed time or period for delivery, the goods shall be delivered not more than 30 calendar days after the day on which the contract is entered into. Delivery will be completed when the relevant goods arrive at the Buyer’s address specified for delivery in the contract or such other delivery location (e.g. the Buyer’s neighbour) as the Seller deems reasonable where delivery to the specified address is not possible, at which point risk in (but not the title to) the relevant goods will pass to the Buyer.
If the Seller fails to deliver any goods, its liability is limited to any costs/expenses incurred by the Buyer in obtaining replacement goods of a similar description and quality in the cheapest market available, less the price of the goods. However, the Seller has no liability for any failure to deliver the goods to the extent that such failure is caused by a Force Majeure Event or by the Buyer’s failure to provide adequate delivery instructions (or any other instructions that are relevant to the supply/delivery of the goods). Where any goods are sent to the Buyer by route involving transit by water, the Seller is not required to give any notice to the Buyer to enable the Buyer to insure those goods during such transit.
The price charged for goods will be that price which is applicable on the date of dispatch, either as set out in the relevant order or (if no price is set out in the order) in the Seller’s current price list, and will be subject to the addition of Value Added Tax (‘V.A.T’) at the current rate in force together with any other Government (or other) duty, tax or levy that is applicable at the relevant time and where required. All price lists issued by the Seller are subject to amendment (and correction for any errors) without prior notice to the Buyer. The Buyer is, therefore, advised to verify with the Seller that any list prices (and/or, as applicable, any estimated or quoted prices) are correct before placing a firm order with the Seller. All prices published, estimated, quoted or agreed by the Seller are dependent upon, and liable to variation in accordance with:
- As applicable, any and all additional transit/transport, insurance and/or packaging costs.
- The performance of any work or services not expressly covered by the Buyer’s order/contract specification but necessary for the due provision of the relevant goods.
- Mistakes and/or omissions in the order and/or any contract specification(s) provided by the Buyer, or any change to any contract specification(s), the delivery date(s) or the quantity/type of goods.
- Special expedition in the completion of any order/contract at the request of the Buyer.
- Any other matters, of any kind, which are outside the control of the Seller (including, without limitation, any increase in taxes/duties and/or in labour, materials and/or other manufacturing costs).
The payment/settlement terms offered by the Seller are (if requested by the Seller) subject to the receipt by the Seller of satisfactory credit references from the Buyer. The Seller reserves the right (at its sole discretion) to vary its payment/settlement terms if satisfactory references for the Buyer are not forthcoming and will notify the Buyer of any such variation as soon as is reasonably possible. Payment for goods must be received by the Seller in the form of cleared funds no later than thirty (30) days from the date of invoice. Payment is to be made to the bank account nominated in writing by the Seller. Time of payment is of the essence. Where payment is not made by the due date for payment, without limiting the Seller’s remedies, the Buyer must pay interest at the rate of four per cent (4%) per annum above Barclays Bank Plc’s Base Rate (as varied from time to time) on the overdue amount. Such interest will accrue on a daily basis until the date of actual payment of the overdue amount, whether before or after judgment. The Buyer is required to pay the interest together with the overdue amount.
The Buyer is required to pay all amounts due to the Seller in full without any deduction or withholding (except as may be required by law) and the Buyer is not be entitled to assert any credit, set-off or counterclaim against the Seller in order to justify withholding payment of any such amount (in whole or in part). The Seller may, at any time and without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount that is payable by the Seller to the Buyer.
If the Buyer fails to pay to the Seller, on the due date for payment, any sum that is due to the Seller, or if the Seller considers on reasonable grounds that the Buyer will (or may) be unable to pay, or will (or may) be prevented from paying, for goods that have already been delivered by the Seller, the Seller may, at its option and by written notice to the Buyer (i) suspend/postpone any further deliveries (ii) require payment in advance for all or any further deliveries or (iii) terminate the relevant order/contract with the Buyer, in each or any such case, without prejudice to the Seller’s rights in respect of any goods that have already been delivered to the Buyer. In the case of any suspension or postponement of the delivery of any goods, for any of the foregoing reasons (or any other reason), the Buyer will be liable for any increased costs (e.g. additional storage, insurance and/or transit costs) which are incurred by the Seller as a result of any such suspension or postponement. The rights of the Seller set out above are without prejudice to any other rights, of either the Seller or the Buyer, to repudiate any contract(s) made between them.
In these terms and conditions, a ‘Force Majeure Event’ means any act of God including (but not limited to) any fire, flood, earthquake, windstorm or other natural disaster; act of any sovereign or government including (but not limited to) any war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, nationalization, requisition, destruction or damage to property by or under the order of any government or public or local authority or imposition of any government sanction, embargo or similar action; law, judgement, order, decree, blockade, labour dispute including (but not limited to) any strike, lockout or boycott; interruption or failure of utility service including (but not limited to) electric power, gas, water or telephone service; failure of any transportation or any personnel equipment or machinery, the shortage of any product(s) or material(s) required by the Seller for completion of the relevant order/contract and/or (without prejudice to the generality of the foregoing) any other event or circumstance that is beyond the reasonable control of the party in question.
Neither the Seller nor the Buyer will be liable to the other for any delay in performing, or for any failure to perform, any of its obligations under these terms and conditions that is caused by any Force Majeure Event. The party claiming that the Force Majeure Event has affected the performance of its obligations will promptly notify the other party in writing of the reasons for the delay or stoppage (and the likely duration thereof) and will take all reasonable steps to overcome the delay or stoppage, to bring the Force Majeure Event to a close or otherwise to find a solution by which the relevant order/contract may be performed despite the Force Majeure Event affecting the party in question.
If the party affected by the Force Majeure Event has complied with the foregoing provisions, the performance of its obligations under these terms and conditions will be suspended for the period that the Force Majeure Event continues and such party will have an extension of time for performance which is reasonable in all the circumstances. As regards any such delay or stoppage (i) any costs arising from the delay or stoppage will be borne by the party incurring those costs and (ii) either party may, if the delay or stoppage continues for more than thirty (30) continuous days, terminate the relevant order/contract with immediate effect, on giving written notice to the other party and, in any such case, neither the Buyer nor the Seller will be liable to the other for (or in connection with) any such termination.
QUALITY AND FITNESS FOR PURPOSE
Whilst every reasonable effort is made by the Seller to ensure that all goods are of satisfactory quality and match the contract specification (if applicable), it is not always possible to ensure strict compliance with a contract specification and the Seller cannot (and does not) accept responsibility for any minor defects in any goods supplied under these terms and conditions.
The finished CDs, DVDs or Bluray disks will only be as good as the format supplied. However DigiScan will take all reasonable steps possible to ensure we do not lose any image quality during the production process. We cannot guarantee that all media supplied will work in all players / laptops / computers.
Any illustrations and/or descriptions of goods given in the Seller’s advertisements and/or printed literature and/or website, and any samples supplied or sold to the Buyer by the Seller, are provided for information purposes only and form no part of the terms of any contract between the Buyer and the Seller. Any recommendation or suggestion relating to the use of any goods which is made by the Seller, either in its technical literature or in response to any specific enquiry (or otherwise), is given by the Seller in good faith but it is for the Buyer to satisfy itself of the suitability of the goods for its own purpose (save that nothing in these terms and conditions shall restrict the Seller’s liability for any fraudulent misrepresentation). Accordingly, the Seller gives no warranty as to the satisfactory quality of any goods or the fitness of any goods for any particular purpose and any implied warranty or condition in relation to any goods (statutory or otherwise) is hereby excluded except in so far as such exclusion is prevented by law. The Buyer acknowledges that it has not relied on any statement, warranty, promise or other representation made or given by (or on behalf of) the Seller which is not set out in these terms and conditions.
LIMITATION OF LIABILITY
IN ANY EVENT (I) THE SELLER’S LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE) FOR THE QUALITY OR FITNESS FOR PURPOSE OF ANY GOODS THAT ARE SUPPLIED UNDER THESE TERMS AND CONDITIONS OR ON ANY OTHER BASIS, WILL NOT EXTEND TO THE BUYER’S LOSS OF PROFIT, INCREASED COST OF WORKING/LABOUR OR ANY OTHER INDIRECT, CONSEQUENTIAL OR FINANCIAL LOSSES OR DAMAGES WHICH MAY BE INCURRED BY THE BUYER (II) THE SELLER’S MAXIMUM LIABILITY TO THE BUYER IN RESPECT OF ALL LOSSES ARISING UNDER, OR IN CONNECTION WITH, THE SUPPLY OF ANY GOODS TO THE BUYER (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE) WILL NOT EXCEED THE PRICE OF THE GOODS IN QUESTION AND (III) NOTHING IN THESE TERMS AND CONDITIONS LIMITS OR EXCLUDES THE SELLER’S LIABILITY FOR ANY MATTER IN RESPECT OF WHICH IT WOULD BE UNLAWFUL FOR THE SELLER TO LIMIT OR EXCLUDE ITS LIABILITY.
OWNERSHIP OF GOODS/BUYER’S INSOLVENCY
The legal and equitable title to any goods supplied under any contract between the Buyer and the Seller will not pass to the Buyer until the price for the goods supplied under that contract (and any other sum due from the Buyer to the Seller under that, or any other, contract) has been paid in full (and in cleared funds) and, until such payment has been made, the Buyer will hold the goods in a strictly fiduciary capacity as bailee for the Seller. Where the goods supplied by the Seller are resold by the Buyer and, at the time of such resale, the legal and equitable title to such goods has not passed from the Seller to the Buyer, the monetary proceeds of any such resale (or, if applicable, any other assets into which such monetary proceeds have been converted by the Buyer) will be held by the Buyer in a strictly fiduciary capacity on trust for the Seller, and the Buyer will account to the Seller for the same to the extent necessary to pay the Seller in full for the goods supplied (and to pay any other sums that are due to the Seller under any other contract). Until such time as the legal and equitable title to those goods supplied by the Seller has passed to the Buyer, or until the resale of those goods, whichever happens first, the Buyer will (i) store the goods separately or otherwise so that they are clearly identifiable as being the Seller’s property (ii) not remove, deface or obscure any identifying mark or packaging on, or relating to, the goods (iii) maintain the goods in a satisfactory condition and keep them insured against all risks, for their full price, from the date of delivery and (iv) give the Seller such information relating to the goods as the Seller may reasonably require from time to time.
If the Buyer (i) is, or becomes, insolvent, bankrupt or subject to any insolvency or bankruptcy (or any equivalent) proceedings in any jurisdiction (ii) commences negotiations with all, or any class, of its creditors with a view to rescheduling any of its debts (or otherwise makes a proposal for, or enters into any compromise or arrangement with, any of its creditors) (iii) is the subject of (or any, or all, of its assets are the subject of) any distress, execution, sequestration or other such legal process, or any application or order relating to the appointment of any administrator, receiver or administrative receiver, or any equivalent or similar event, in any jurisdiction (iv) suspends, threatens to suspend, ceases or threatens to cease to carry on its business (or any part thereof) or is in such a financial position that, in the reasonable opinion of the Seller, the ability of the Buyer to fulfil its obligations under these terms and conditions is in doubt or (v) being an individual, dies or is unable to manage his or her own affairs (for whatever reason), or the Seller reasonably believes that any of the foregoing events is likely to happen and notifies the Buyer accordingly, then, without limiting any other right or remedy available to the Seller, it may cancel or suspend all further deliveries of goods to the Buyer, without incurring any liability to the Buyer and, at the Seller’s option, either (a) all outstanding sums due for goods already delivered to the Buyer will become immediately payable by the Buyer or (b) provided the goods have not been resold, or irrevocably incorporated into another product, the Seller may terminate each contract with the Buyer and require the Buyer to deliver up any and all goods in which title has not passed to the Buyer (and, if the Buyer fails to do so promptly, the Seller may enter any premises of the Buyer, or any third party, where such goods are stored in order to recover them).
LOST/DAMAGED/UNDELIVERED GOODS AND RETURN OF GOODS
In respect of any loss of goods from a package or from an unpacked consignment, or as a result of any damage to any part of a consignment, whilst in transit, the Buyer is required to (i) advise the carrier and the Seller in writing (otherwise than by writing on the carrier’s consignment note or delivery document), within seven (7) days of the date of delivery of the consignment or part consignment, and (ii) submit a valued and substantiated claim to the Seller in writing within fourteen (14) days after the commencement of transit. In the computation of the time periods for the foregoing provisions of this paragraph 10, weekends and public holidays are not included. The Buyer will be deemed to have accepted the goods on the expiry of seven (7) days from the date of delivery of the goods to the Buyer except where the Buyer has previously advised the carrier and the Seller otherwise (under this paragraph 10) or where a Force Majeure Event has prevented the Buyer from contacting the Seller within such seven (7) day period.
- If the Buyer notifies the Seller in writing, within the seven (7) day period referred to above, that any of the goods do not comply with the Seller’s warranty in paragraph 8 above, and the Seller is given a reasonable opportunity of examining the relevant goods (and the Buyer, if asked to do so, returns such goods to the Seller’s place of business), the Seller will, at its option, either repair or replace any defective goods or refund the price of any defective goods in full. These terms and conditions will apply to any repaired or replacement goods supplied by the Seller. In any event, no goods may be returned by the Buyer unless authorised by the Seller’s sales office, who will raise appropriate collection documentation. In any event, goods may only be returned under the following conditions:
- The Advice Note number must be quoted by the Buyer.
- The goods must be packed by (or on behalf of) the Buyer in such a way as to arrive back at the Seller’s premises in the same condition as they were originally delivered to the Buyer.
However, the Seller will not be liable to the Buyer for any failure of any goods to comply with the Seller’s warranty in paragraph 8 above if (i) the Buyer makes any further use of such goods after giving written notice to the Seller in accordance with this paragraph 10 and/or alters or repairs such goods (or seeks to do so) without the prior written consent of the Seller (ii) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, hanging, use and/or maintenance of the goods or (if there are none) good trade practice (iii) the defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer or (iv) the defect arises as a result of fair wear and tear, willful damage, negligence or abnormal storage and/or working conditions. Except as provided in this paragraph 10, the Seller has no liability to the Buyer in respect of the failure of any goods to comply with the Seller’s warranty set out in paragraph 8 above.
No liability can or will be accepted by the Seller, in any event, for any goods which have been subjected to any further process, manipulation, or which have otherwise been modified by (or on behalf of) the Buyer, after they have been delivered to the Buyer. The Seller will not be bound, in any way, by any settlement or other agreement between the Buyer and any subsequent owner of the goods, unless the Seller has previously agreed in writing to be a party to such a settlement or other agreement.
INTELLECTUAL PROPERTY AND CONFIDENTIALITY
In these terms and conditions, the ‘Intellectual Property’ includes (without limitation) any patent, trade mark, service mark, copyright, design right, moral right, know-how or any other form of intellectual property, whether registered or unregistered and whether existing now or in the future, in any format or media whatsoever, in (or arising in respect of or in connection with) all goods, specifications, designs or other written, printed or graphic materials or images supplied, or made available for inspection, by the Seller to the Buyer. All of the Intellectual Property is, and will remain, the absolute and unencumbered property of the Seller wholly and exclusively. The Buyer is prohibited from using any of the Seller’s Intellectual Property, unless a written licence agreement is entered into between the Seller and the Buyer. The Seller and the Buyer agree that they will each, at all times, keep strictly private and confidential any and all confidential information that they acquire from each other as a consequence of contracting with each other under these terms and conditions, except for disclosing any such information (i) which they may be (and then only to the extent they are) entitled or bound to disclose under compulsion of law or where requested by any regulatory agency or (ii) to their professional advisers where reasonably necessary for the performance of their professional services.
ASSIGNABILITY/THIRD PARTY RIGHTS/WAIVER/SEVERANCE
This contract is made between the Seller and the Buyer as principals and is not assignable by the Buyer without the express and prior written consent of the Seller. A person who is not a party to the contract between the Buyer and the Seller will not have any rights under or in connection with it. Any waiver of any right or remedy under these terms and conditions is only effective if given in writing and will not be deemed to be a waiver of any subsequent breach or default. No failure to exercise, or delay in exercising, any right or remedy provided hereunder (or by law) constitutes a waiver of, nor precludes or restricts the further exercise of, that (or any other) right or remedy. No single or partial exercise of such right or remedy will preclude or restrict the further exercise of that (or any other) right or remedy. If any court or competent authority finds that any provision of these terms and conditions (or part of any such provision) is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions hereof will not be affected. If any invalid, unenforceable or illegal provision of these terms and conditions would be valid, enforceable and legal if some part of it were deleted, the provision will apply with the minimum amount of modification necessary to make it legal, valid and enforceable.
ARBITRATION AND GOVERNING LAW
The headings used in these terms and conditions are used for reference purposes only and will not affect the construction, or interpretation, of these terms and conditions. If, at any time, any question, dispute or difference arises between the Buyer and the Seller out of, or in relation to or in connection with, these terms and conditions and/or any contract between the Buyer and the Seller, whether during or after completion of the relevant contract, either party may give to the other written notice of the existence of such question, dispute or difference, and such matter shall then be referred to arbitration, by a single arbitrator appointed jointly by the parties (or, at the request of either party, by the London Court of International Arbitration (or any replacement or equivalent body)) for final resolution. Any such arbitration will take place in London and will be conducted in the English language. No payment due by the Buyer to the Seller shall be withheld by the Buyer on account of such pending arbitration. These terms and conditions shall be governed by, and construed in accordance with, the laws of England and Wales and (subject to the foregoing provisions of this paragraph 15) each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales in connection with any claim or dispute arising out of, or in connection with, these terms and conditions and/or any other contract between the parties.