Terms & Conditions

1. APPLICATION & INTERPRETATION

1.1 Save in respect of a sale to a party who is not a consumer, as defined in the Unfair Terms in Consumer Contracts Regulations 1994, these conditions of sale shall govern the contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.

1.12 In these conditions:

‘BUYER' means the person who accepts the quotation of the Seller for the sale of the Goods

or whose order for the Goods is accepted by the Seller

‘GOODS' means the Goods (including any installment of the Goods or any parts of them) which

the Seller is to supply in accordance with these conditions

'SELLER' means Music Gear Direct (a division of MGD Group Limited),

No 11 Pentrich Road, Giltbrook Industrial Park, Nottingham. NG16 2UZ

‘CONDITIONS' means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.

'CONTRACT' means the contract for the purchase and sale of the goods.

"WRITING' includes telex, cable, facsimile transmission and comparable means of communication.

•  Any reference m these conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time,

•  The headings in these Conditions are for convenience only and shall not affect their interpretation.

2. BASIS OF SALE

•  The Seller shall sell and the Buyer shall purchase the Goods subject to these conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer

•  No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Seller and the Buyer.

•  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, any waives any claim in breach of, any such representations which are not so confirmed

•  Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer's own risk and according to the Seller shall not be liable for any such advice or recommendation which is not so confirmed.

•  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.

3. ORDER AND SPECIFICATIONS

•  The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

•  The quantity, quality and description of any specification for the Goods shall be those set out in the Seller's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller)

•  The Seller reserves the right to make any changes in the Specification of the Goods which are required to conform with any applicable safety or other statutory requirement or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.

3.4 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller in full against the loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of the cancellation

4. PRICE OF THE GOODS

•  The Price of the Goods shall be the Sellers price specified. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.

•  The price is exclusive of any applicable value Added Tax, which the Buyer shall be additionally liable to pay to the Seller.

5. TERMS OF PAYMENT

5.1 The Seller shall be entitled to payment on or before delivery, unless the Goods are to be collected by the Buyer or the Buyer wrongfully 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. DELIVERY

6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the goods to that place.

•  Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

•  If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller's reasonable control of the Buyers fault, and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess (if any) of the cost of the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

•  If the Buyer fails to take delivery of the Goods (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:

6.4.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs

(including Insurance) of storage; or

6.4.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable selling and selling expenses) account to the Buyer for the access over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract

7. RISK AND PROPERTY

7.1 Risk of damage to or loss of the Goods shall pass to the Buyer

•  in the case of the Goods to be delivered at the Sellers premises, at the time when the Seller notifies, at the time when the Seller notifies the Buyer that the Goods are available for collection; or

•  in the case of the Goods to be delivered otherwise than the Seller's premises, at the time of delivery, or if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods

 

•  Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due

•  Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Sellers property Until that time, the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer or third parties and, in case of tangible proceeds, property stored, protected and insured.

•  Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do forthwith, to enter upon any premises of the Buyer or third party where the Goods are stored and repossess the Goods.

•  The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so, all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

8. WARRANTIES

8.1 Subject to the conditions set out below, the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 3 months from the date of their initial use or 3 months from delivery, whichever is the first to expire.

8.2 The above warranty is given by the Seller subject to the following conditions.
8.2.1 the Seller shall be in no liability in respect of any defect in the Goods arising from

any drawing, design or specification supplied by the Buyer;

•  the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Sellers instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Sellers approval;

•  the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price of the Goods has not been paid by the due date for the payment

8.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Seller. In respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller

•  Subject as expressly provided by the Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

•  Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller in writing within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract

•  Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods of their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller's sole discretion, refund to the Buyer the price of the Goods (or the proportionate part of the price) but the Setter shall have no further liability to the Buyer costs expenses or other claims for consequential compensation whatsoever (and whether caused by negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions

8.7 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Sellers obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Sellers reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as cause beyond the Seller's reasonable control:

8.71 Act of God, explosion, flood, tempest, fire or accident;

•  war or threat of war, sabotage, insurrection, civil disturbance or requisition;

•  acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on part of any governmental, parliamentary or local authority:

8.7.4 import or export regulations or embargoes;

8.7.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving

employees of the Seller or a third party);

8.7.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;

8.7.7 power failure or breakdown in machinery

9. INDEMNITY

9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes
the patent copyright design, trademark or other industrial or Intellectual property rights of any
other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses
awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be
paid by the Buyer in settlement of the claim, provided that:
9.1.1 the Seller is given full control of any proceedings or negotiations in connection with

any such claim;

9.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such

proceedings or negotiations;

•  except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld)

•  the Buyer shall do nothing which would or might vitiate any policy of insurance or Insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do).

9.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and

9.1.6 without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such toss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.

10. INSOLVENCY OF BUYER

10.1 This clause applies if

•  the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction). or

•  an encumbrancer takes possession, or a receiver is appointed of any of the property or assets of the Buyer; or

•  the Buyer ceases, or threatens to cease, to carry on business; or

•  the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation lo the Buyer and notifies the Buyer accordingly

10.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, 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

11. GENERAL

•  Any notice required or permitted-to be give by either party or to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principle place of business or such other addresses as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

•  No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision

•  If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby

•  Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (In default) nominated on the application of either party by the President for the time being of The Law Society.

•  The Contract shall be governed by the Laws of England

•  The Order is personal to the Seller and the Seller shall not assign or transfer or purport to assign or transfer to any other person any of its rights or subcontract any of its obligations under the Contract

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