1.1. “The Company” means Beat Concepts Ltd and/or its subsidiaries and/or affiliates.
1.2. “Customer” means any person, firm, company or unincorporated association which orders, buys or licenses goods or services from The Company.
1.3. “Contract” means an individual legal binding contract between The Company and the Consumer created when an Order placed by the Customer is accepted by The Company subject to these Conditions.
1.4. “Goods” means the goods (and/or, where the context so admits, services) which are the subject of the Contract and any instalment thereof.
1.5. “Invoice” means the invoice given or despatched to the Customer detailing the Goods and the Price.
1.6. “Order” means the order placed by the Customer (of which the Customer acknowledges that these Conditions form part) for the supply of goods or Services by The Company to the Customer.
1.7. “Price” means the total price to be paid by the Customer to The Company for the supply of the Goods.
Acceptance of Orders
2.1. Any quotation relating to Goods supplied by The Company and any catalogue, mail shot or other advertisement of such Goods shall not constitute an offer capable of acceptance by the Customer but and invitation to treat only. Any Order shall be accepted entirely at the discretion of The Company and, if accepted, is accepted under the Conditions.
2.2. These Conditions shall override any contrary, different or additional terms or conditions contained or referred to in a Customer’s order or in any other correspondence or documents from that Customer and (subject to Clause 2.4) no addition, alteration or substitution of these Conditions will bind The Company or form part of any contract unless expressly accepted in writing by a person authorised to sign on behalf of The Company.
2.3. Any Order shall be deemed to have been accepted by The Company upon whichever is the earliest of the following items:
2.3.1. the acceptance by The Company of payment of cleared funds for the Goods
2.3.2. despatch to the Customer or a note advising that the Contract has been recorded and will be fulfilled once the Goods to which the advice note relates are available
2.3.3. delivery of the goods to the Customer or to some person authorised to collect the Goods on the Customer’s behalf
2.3.4. in the case of services, commencement by The Company of the said services
2.3.5. where Goods sold will be updated on the “Charge By Release” basis, the Customer on payment of the invoice in respect of such Goods agrees to purchase, subject to the terms of these Terms and Conditions, any such future release unless and until the Customer notifies The Company that no further releases are required
Delivery of Goods
3.1. Unless otherwise agreed with the Customer, The Company shall effect delivery of the Goods at the Customer’s expense.
3.2. Delivery to the Customer shall be deemed to have taken place when the Goods are placed with the Customer’s representative or at the address specified by the Customer.
3.3. The Company reserves the right to make deliveries by instalments in all cases. Where Goods are delivered by instalment, the Customer shall not be entitled to treat defective delivery in respect of one or more instalments as a repudiation of the whole of the Contract nor to defer payment for any previous instalment.
3.4. Any time or date for delivery given by the Company is given in good faith but is an estimate only.
Property in the Goods
4.1. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, property in the Goods shall not pass to the Customer until The Company has received in cash or cleared effect payment in full of the price and of all other sums which may be due The Company at the time the price is so paid in full.
4.2. Until property of the Goods passes, the Customer shall keep the Goods free from any lien, charge or encumbrance and The Company may at any time require the Goods to be returned to it by the Customer and, if such requirement is not met within three days, The Company may retake Possession of the Goods and may enter any premises of the Customer (including locked and steadfast premises) for that purpose.
4.3. Until such time as property of the Goods passes to the Customer, the Customer shall hold the same as The Company’s fiduciary agent and custodian and shall keep them separate from its property and from that of the third parties and properly stored, protected and insured and identified as the property of the company. If the customer shall sell or otherwise dispose of or process the Goods (or any part thereof)
it shall receive and hold as trustee for The Company the proceeds of such sale, disposal or process or other monies derived from or representing the Goods (or any part thereof) (including insurance proceeds) and shall keep such proceeds or other monies separate from any monies or property of the Customer and or third parties, and shall as soon as possible after receiving the same pay such monies to The Company or into a separate account on trust for The Company.
4.4. The Company shall be entitled to sue for the Price once payment is due in terms of Clause 5.5 notwithstanding that property of the Goods has not passed to the customer.
Price and Payment
5.1. The Price shall be the price quoted by The Company (plus VAT where applicable and/or any other taxes, duties and appropriate other charges) and shall be specified in the invoice.
5.2. Unless otherwise agreed with the Customer, quotations are valid for 30 days from the date of quotation.
5.3. The Company reserves the right to obtain from the customer up to a 50% non-refundable deposit before commencement of production.
5.4. The Invoice shall be given or despatched by The Company to the Customer on the date of delivery or as soon as reasonably practical thereafter provided that The Company reserves the right to despatch further Invoices to the Customer in respect of increased or other charges payable under these Conditions and not ascertainable at the time of despatch of the original Invoice.
5.5. The Price shall be paid in full by the Customer to The Company on or before the date shown on the Invoice as the due date for payment (“the Due date”) unless otherwise agreed in writing.
5.6. Certain Goods may be supplied to the Customer by The Company, at its absolute discretion, subject to a “satisfaction guarantee” which may, if the said goods are not to the Customer’s satisfaction, be exercised by the Customer within 14 days of the Invoice Date, provided that such goods are returned to The Company within that period in mint condition.
5.7. If the Price is not paid in full by the due Date, interest shall (at the absolute discretion of The Company) be payable (both before and after decree or judgement) on the Price or the part unpaid from the Due Date for payment until paid in full. Such interest shall be calculated in accordance with the provisions of The Late Payment of Commercial Debts (Interest) Act 1998.
5.8. The customer shall reimburse the Company (on all full indemnity basis) all costs and expenses incurred by The Company in connection with the recovery of any money due to The Company under the Contract.
5.9. Without prejudice to Clause 5.7 above, it is hereby expressly stated that prompt payment of the Price is of the essence of the Contract and, in default of prompt payment The Company may at its option either suspend all further deliveries of Goods or performances of service under the Contract or otherwise until payment is made or cancel the Contract and subsequent Contracts so far as Goods remain to be delivered or services performed there under.
5.10. Payment made by the Customer to The Company shall be applied by The Company to invoices, and to Goods listed in Invoices, in such order or manner that The Company shall, at its entire discretion, think fit.
5.11. Except in the express agreement in writing of The Company, no deduction shall be made by the Customer from any payment for Goods for or on account of any matter or thing whatsoever, including, but not limited to any set-off, compensation, counterclaim or present or future taxes.
Warranties and Guarantees
6.1. The Company warrants that it either has the right to sell the Goods or has obtained all necessary rights to licence them and the Customer’s rights to unencumbered possession and quiet title in terms of the Sale of Goods Act 1997 and the Supply of Goods and Services Act 1982 are preserved.
6.2. The Company further warrants that the Goods shall correspond with their descriptions as set out in approved samples, specifications, visuals and other documents issued by it, unless the Customer is specifically advised by The Company to the contrary prior to delivery of the Goods (any verbal description of Goods or any descriptions provided by other than that by The Company shall not form part of their description for the purposes of these warranties) and, where the Goods consist of or include services to be provided by The Company, such services shall be provided with reasonable care and skill.
6.3. The Customer shall inspect the Goods immediately upon delivery and within 24 hours of delivery (time being of the essence) shall give notice to The Company of any alleged shortages in the Goods or any damage to or defect in the Goods or any other matter or thing by reason whereof the Customer alleges that the Goods shall be conclusively presumed to be in accordance with the Contract in all respects and the Customer shall not (subject to clause 6.5) thereafter be entitled to reject the Goods or to claim from the Company in respect of any shortage, damage or other defect to the Goods.
6.4. In the case of damage or other defect to the Goods which was not apparent on reasonable inspection notice shall be given The Company within 72 hours after discovery of the damage or other defect, otherwise Clause 6 will apply. If requested by The Company following notification of a claim, defective Goods shall be returned promptly by the Customer to the Company.
6.5. In the event that the Goods are defective and the damage or other defect complained of shall have arisen as a result of the negligence of The Company and the Customer has notified any claim to The Company in accordance with Clause 6.3. The Company guarantees that it shall refund to the Customer the price in respect of the defective Goods or cancel the liability of the Customer to pay the said Price, provided that where this is possible the Company may instead opt to repair or replace defective Goods free of charge.
Limitation of Liability
7.1. Subject to Clause 7.6 The Company’s liability under Clause 7 shall be to the exclusion of all other liability to the Customer whether in contract, tort, delict (including negligence or breach of statutory duty) or otherwise for defects in the Goods or for any loss or damage caused by the Goods, and all other conditions, warranties, stipulations or other statements whatsoever concerning the goods, whether expressed or implied, by statue, at common law or otherwise, are hereby excluded.
7.2. In particular (but without limitation of the foregoing) except as set out in Clause 7.1. The Company makes no warranties regarding fitness for purpose, performance, use, nature or satisfactory quality of the Goods, whether expressed or implied by statute, at common law or otherwise.
7.3. Subject to Clause 7.4, The Company’s liability to the Customer in respect of the Contract, in contract, tort or delict (including negligence or breach of statutory duty) or howsoever otherwise arising shall be limited to the Price.
7.4. Nothing in these Conditions shall operate or be construed so as to exclude or restrict the liability of The Company for death or personal injury resulting from the negligence of The Company or its servants, employees or agents, or the statutory rights of the Customer where the Contract entered into as a consumer transaction (as defined in the Consumer Transaction (Restriction of Statements) Order 1976 (as amended).
The Company shall not be responsible for any delay or failure to fulfil any of its obligations under the Contract nor be liable for any loss or damage suffered by the Customer by reason of any delay in delivery of the Goods or any part thereof caused directly or indirectly by an act of God, war, government or parliamentary restriction, import or export regulation, strike, lockout trade dispute, fire, theft, flooding, breakdown of plant or premises, failure of water or other supplies or any other causes whatsoever beyond the control of The Company.
Copyright and Restriction on re-sale
9.1. All copyright and other rights in the nature of copyright or any other intellectual property right whatsoever in the Goods or any materials derived are reserved to the copyright owner and the Customer irrevocably acknowledges and agrees that the supply of Goods to it by The Company shall not serve to transfer such rights unless previously consented to in writing.
9.2. No part of the Goods may be reproduced in any material form (including photocopying or storing it in any medium by electronic means and whether or not transiently or incidentally to some other use of the Goods) without the written permission of The Company except as permitted by law or under the terms of licence. Applications for the copyright owner’s written permission to reproduce any part of the Goods should be addressed to The Company. The Customer is put on notice that the doing of any unauthorised act in relation to a copyright work may result in both a civil claim for damages and criminal prosecution.
10.1. In the event of the Customer committing any breach of any term or provision of the Contract (including, for the avoidance of doubt, these Conditions), going into liquidation, having a Receiver, Administrator, Judicial factor or similar officer appointed over the whole or any part of its assets, becoming bankrupt or notour bankrupt or apparently insolvent or granting any trust deed or entering into any composition or similar arrangement with its creditors, or if any circumstances arise which, in the sole opinion of the Company, make any of the foregoing likely to occur, the Company shall be entitled, without any liability whatsoever, to terminate the Contract forthwith and to enter the Customer’s premises for the protection, removal, realisation and disposal of any of the Goods in which property shall not have passed to the Customer in accordance with these Conditions. The Company shall also be entitled to cancel all Contracts or any part thereof remaining unfulfilled between the Comp any and the Customer and to sell to any other party or otherwise dispose of and deal with the Goods.
10.2. Termination of the Contract shall not discharge any pre-existing liability of the Customer to The Company and on such termination, The Company shall be entitled to recover from the customer such loss or damage as The Company has suffered by means of such termination.
11.1. No failure or delay the The Company to exercise any right, power, remedy or privilege shall operate as a waiver of the same.
11.2. If any provision of these Conditions shall be held to be illegal or unenforceable, in whole or in part, under any enactment of rule of law, such term or provision or part shall to that extent be deemed not to form part of these Conditions but the validity and enforceability of the remainder of these Conditions shall not be affected.
11.3. Any notices or other communications required or permitted to be given by The Company to the Customer, or vice versa, shall be in writing and sent, in the case of notices to The Company, to the Registered Office of The Company (or such other address as may be intimated to the Customer from time to time) and, in the case of notices to the Customer, to the Customer’s last known address. Notices and other communications shall be sent by first class mail, facsimile transmission or delivered by hand and shall be deemed to have been received, in the case of first class mail, 72 hours after porting, on facsimile transmission on completion of such transmission, and on delivery by hand, at the time of delivery.
11.4. The amount of any sum due by the Customer to The Company under the Contract shall be sufficiently ascertained by a certificate under the hand of the Secretary or a Director or any other authorised signatory of The Company and such certificate shall be final and binding on the Customer for every purpose.
11.5. The Company shall be entitled, in its entire discretion, to alter these Conditions or any of them at any time and from time to time whether by way of a variation and or substitution and or deletion of the subsisting Conditions and/or adding new Conditions and these Conditions as so altered shall apply to Contracts whether current at the time or entered into hereafter, provided always that, in the case of each Contract, then one month’s prior notice in writing shall be given by The Company to the Customer stating the amended Conditions of supply of goods and services and the effective date thereof.
Jurisdiction and Governing Law
The Conditions and any Contract of which they form part shall be governed in all respects by the Law of England and The Company and the Customer each irrevocably agree to submit to the non-exclusive jurisdiction of the English Courts.