1.1 In these conditions:
- "Buyer" means the member who buys or agrees to buy the Goods from the Seller.
- "Conditions" means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller.
- "Goods" means the articles which the Buyer agrees to buy from the Seller.
- "Price" means the price for the goods excluding VAT.
- "Seller" means Numark or any associate company or companies or their appointed distributor.
2 Conditions applicable
2.1 These Conditions shall, together with the membership agreement between the Buyer and the Seller, apply to all contracts for the sale of Goods by the Seller to the Buyer and shall apply in place of and prevail over any terms or conditions upon which the Buyer seeks to rely, or implied by trade, custom, practice or course of dealing unless specifically agreed to in writing by a director or authorised representative of the Seller and any purported provisions to the contrary are herby excluded or extinguished.
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
2.3 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer's acceptance of these Conditions.
3 Basis of Sale
3.1 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the contract the Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.
3.2 The Seller reserves the right to make changes in the specifications of the Goods.
3.3 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 Seller shall be subject to correction without any liability on the part of the Seller.
4.1 The Price of the Goods shall, subject to conditions 3.3 and 4.2 be the Price stated in the Seller's price list current at the date of delivery of the Goods. The Price is exclusive of any applicable VAT and any other tax or duties which shall be due at the rate ruling on the date of the Seller's invoice.
4.2 The Seller shall have the right at any time before delivery and without any prior notice to increase or decrease the price if in its entire discretion it sees fit to do so.
4.3 The Seller reserves the right to charge carriage, packaging and insurance if in its entire discretion it sees fit to do so.
5.1 The Seller's acceptance of the Buyer's order shall be effective only where such acceptance is made by the Seller dispatching the Goods and a sales invoice to the Buyer or where delivery is to take place by the Buyer collecting the Goods by the Seller notifying the Buyer that the Goods are ready for collection.
5.2 The minimum net value of each order shall be as determined from time to time by the Seller.
5.3 For avoidance of doubt the Seller reserves the right without any liability on its part at any time and without explanation, to:
(i) Refuse to accept an order.
(ii) Cancel an order.
(iii) Suspend deliveries against an order whether or not an account is in arrears.
(iv) Refuse cancellation of an order.
(v) Cancel unexecuted instalments of an order.
5.4 No variation of an order will be recognised unless otherwise agreed by the Seller in writing.
5.5 The Seller reserves the right to levy a handling charge of such amount as it deems appropriate where the Buyer cancels an order.
6 Terms of Payment
6.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods, on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
6.2 Payment of invoice shall unless otherwise agreed or directed by the Seller (when it will be due on the date agreed or directed by the Seller) be made in full without any deduction or set off at the end of the month immediately following the month of invoice. Time for payment shall be of essence.
6.3 Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at the rate of 4% above Barclays PLC base rate from time to time in force and shall accrue at such a rate as well before any judgement, and the Buyer shall be liable for and shall indemnify the Seller for all costs (including recovery costs), expenses, and charges incurred by the Seller as a result of non payment of the invoice(s) on the due date(s). The Seller reserves the right to set off sums due to the Buyer under any agreement it may have with the Buyer against sums due hereunder.
6.4 If in the absolute opinion of the Seller the credit worthiness of the Buyer is doubtful or has deteriorated prior to delivery the Seller may require full or partial payment of the Price, plus applicable VAT, prior to delivery or the provision of security for payment by the Buyer in a form acceptable to the Seller.
7.1 Delivery shall be made by the Seller delivering the Goods to a place agreed by the Seller or, (by special arrangement with the Seller) by the Buyer collecting the Goods at the Seller's premises within a reasonable time after the Seller has notified the Buyer that the Goods are ready for collection.
7.2 The Seller will endeavour to adhere to the agreed delivery date although delivery dates mentioned are approximate only and not of any contractual effect and the Seller shall not be under any liability to the Buyer in respect of any failure to deliver on any particular date or dates.
7.3 The Seller shall be deemed to have fulfilled his contractual obligations in respect of any delivery although (owing to stock shortages from time to time of one or more items of the Goods) the quantity may be less than the quantity specified in the contract and in such event the Buyer shall pay for the actual quantity delivered.
7.4 If the Buyer refuses or fails to take delivery of the Goods tendered in accordance with the contract or fails to take any action necessary on his part for delivery of the Goods the Seller shall be entitled to its option:
(i) to store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage and transport; or
(ii) to terminate the contract with immediate effect or dispose of the Goods as the Seller may determine and to recover from the Buyer any loss and additional costs incurred as a result of such refusal or failure.
7.5 Unless otherwise expressly agreed the Seller may effect delivery of the Goods in one or more instalments. Where delivery is effected by instalments each instalment shall be treated as a separate contract and failure by the Seller to deliver any one or more instalment in accordance with these conditions or any claim by the Buyer in respect of any one or more instalment shall not entitle the Buyer to treat the contract as a whole as repudiated.
8 Acceptance of the Goods
8.1 The Buyer shall be deemed to have accepted the Goods 48 hours after delivery to the Buyer.
8.2 Any claim by the Buyer which is based on any defect in the quality of Goods or shortage of quantity of Goods delivered or condition of the Goods or their failure to correspond with specification must (whether or not delivery is refused by the Buyer) be notified to the Seller within 48 hours from the date and time of delivery. If the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject the Goods nor shall the Seller have the liability for such defect shortage or failure and the Buyer shall be bound to pay the Price as if the Goods had been delivered in accordance with the contract.
8.3 After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the contract.
8.4 If the Buyer properly rejects any Goods in accordance with clause 8.2 the Buyer shall forthwith return such Goods to the Seller and in any case within 7 days of delivery.
8.5 No Goods delivered to the Buyer which are in accordance with the contract will be accepted for return without the prior written approval of the Seller on terms to be determined at the absolute discretion of the Seller.
8.6 If the Seller agrees to accept any Goods for return the Seller reserves the right to levy a handling charge of 10% of the invoice price. Such Goods must be returned to the Seller in their original shipping carton, carriage paid.
8.7 Goods returned without the prior written approval of the Seller may at the Seller's absolute discretion be returned to the Buyer or stored at the Buyer's costs without prejudice to any rights or remedies that the Seller may have.
9 Warranties and Liability
9.1 Except in respect of death, personal injury, fraudulent misrepresentation or other claim which cannot be limited or otherwise excluded by law, the Sellers liability shall be limited to the price of the Goods contained in the order. The Seller shall not be liable for any indirect or consequential loss, including loss of profit and loss of opportunity.
10 Title and Risk
10.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
(i) In the case of Goods to be delivered at the Seller's premises at the time when the Seller's premises at the time when the Seller notifies the Buyer that the goods are available for collection; or
(ii) In the case of Goods to be delivered otherwise than at the Seller's premises at the time of delivery or, if the Buyer fails to take delivery of the Goods at any time when the Seller has tendered delivery of the Goods.
10.2 In spite of delivery having been made the legal and beneficial property in the Goods shall not pass from the Seller until:
(i) The Buyer shall have paid the Price plus the VAT in full; and
(ii) No other sums whatever shall be due from the Buyer to the Seller.
10.3 Until property in the Goods passes to the Buyer in accordance with clause 10.2 the Buyer shall hold the Goods and each of them on a fiduciary basis as a bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other Goods in his possession and marked in such a way that they are clearly identified as the Seller's property.
10.4 Notwithstanding that the Goods (or any of them) remain the property of the Seller, the Buyer may sell or use the Goods in the ordinary course of the Buyer's business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller's property by the Buyer on the Buyer's own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale from the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller's money.
10.5 The Seller shall be entitled to recover the price (plus VAT) notwithstanding that property in any of the Goods has not passed from the Seller.
10.6 Until such time as property in the Goods passes from the Seller the Buyer shall upon request deliver up such Goods as have not ceased to be in existence or re-sold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned, occupied or controlled by the Buyer where the Goods are situated and re-possess the Goods. On the making of such request the right of the Buyer under Clause 10.4 shall cease.
10.7 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if Buyer does so, all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
10.8 Until the date that property in the Goods passes from the Seller, the Buyer shall insure the Goods to the full Price against "all risks" and when requested by the Seller produce a copy of the policy of insurance.
11 Own Brand Goods
11.1 The Buyer recognises that such of the Goods as are marked with the Seller's own brand are purchased from the Seller which is the sole supplier of such Goods and the Buyer shall immediately inform the Seller if it purchases from, has offered to it for sale or becomes aware of the existence of similarly branded goods being offered for sale by a third party.
11.2 The Buyer shall not, without the prior written approval of the Seller, sell any of the Goods marked with Seller's own brand except by way of retail sale over the counter. The Seller reserves the right to cease to supply the Buyer where the buyer is in breach of this condition. The Buyer shall not be entitled to sell Own Brand Goods over the internet or through any other streamed service without the prior approval of the Seller.
12 Insolvency and Default
12.1 This Clause applies in the following circumstances:
(i) The Buyer is in breach of any terms hereof and (if such breach is remediable) fails to remedy such breach within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied without the prior authority of the Seller; or
(ii) An encumbrancer takes possession or a receiver is appointed over any of the properties or assets of the Buyer; or
(iii) The Buyer makes any voluntary arrangement with his creditors or becomes subject to an Administration Order; or
(iv) The Buyer goes into liquidation (except for the purposes of amalgamation or reconstruction and in such a manner that the Company resulting there from effectively agrees to be bound by and assumed the obligation imposed on the Buyer under this contract); or
(v) Anything analogous to any of the foregoing under the law of any jurisdiction happening to the Buyer;
(vi) The Buyer ceases or threatens to cease to carry on business; or
(vii) The Seller reasonably apprehends that any of the events mentioned above is bound to occur in relation to the Buyer and notifies the Buyer accordingly.
12.2 If this Clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled without any liability to the Buyer to stop any of the Goods in transit and/or suspend further deliveries and/or by notice in writing to the Buyer determine the contract and if the Goods have been delivered but not paid for the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and any failure to make immediate payment will entitle the Seller to immediate return of the Goods or for the Seller or its agents to re-possess the Goods.
13.1 Any notice required or meant to be given by either party to the other under these conditions shall be in writing addressed to the other party at his registered office or principal place of business or such other address as may at the relevant time have been notified in writing.
13.2 No waiver by the Seller of any breach of the contract by the Buyer shall be considered as a waiver of such subsequent breach of the same or any other provision.
13.3 If any provisions of these conditions is held by any competent authority to be invalid or unenforceable in whole or part, the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.
13.4 Failure by the Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right to operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
13.5 The contract and these Conditions shall be governed in accordance with English Law and, subject to English based alternative dispute resolution, the courts of England shall have exclusive jurisdiction to hear any suit.