i) The following definitions apply: ‘Company’ means Avinity Limited. ‘Goods’ means all durable product, including but not exclusively limited to audio, visual, technological, gaming, domestic appliance and gift items, offered for sale by the Company from time to time. ‘Client’ means the corporate, organization or non-personal entity which places an appropriate purchase order on the Company requisitioning the supply of any Goods. ‘Customer’ means any third-party or private individual to whom the Company are instructed to deliver Goods on behalf of a Client. ‘Contract’ means these terms and conditions, appropriate purchase orders and any ‘Special Conditions’ (being any additional term or condition which has been agreed in writing by the parties and signed by authorized signatories of both the Company and Client). ‘Standard Charges’ means the Company’s standard charges for the Goods and the services to be provided under the Contract for time to time in force. ii) use of the trade name Avinity [and any other trading style as may be notified from time to time as adopted by the Company] and referenced in Contacts as may arise shall always be interpreted as being references to the Company.
1. Any Contract established shall be governed by English Law and the parties shall submit to the exclusive jurisdiction of the English courts.
2a. The Company, being a trade-only wholesaler/distributor, will only afford an account (‘Trade Account’) for the supply of Goods to Clients who have been verified as being properly constituted businesses having first completed a Trade Account Application Form together with any relevant addendums thereto. The Company will not entertain Contracts directly with private individuals.
2b.These terms and conditions apply to the maintenance of any and all Trade Accounts and any Contracts arising between the Company and the Client, whether written or verbal, and supersede all earlier conditions of sale.
2c. The Contract supersedes all prior agreements or Contracts between the parties and constitutes the entire agreement between the parties and may not be modified, waived or amended or supplemented except by written agreement between the parties, save for where a fixed term Contract pre-exists suitably worded to the prior exclusion of the Company’s standard terms.
2d. A Contract will not be deemed to be binding on the Company unless the Client’s purchase order has been accepted by the Company in writing and acknowledged, signed by one of its directors or other authorized signatory. The Company may, at its discretion accept any order placed by the Client. The written order will not be deemed to be accepted by the Company except in accordance with the terms of this clause.
2e. No quotation or estimate given by the Company shall be taken as binding unless expressed in writing as a ‘Fixed Quotation’. Notwithstanding, a Fixed Quotation will only be valid until the date specified thereon, in which case it will be open to acceptance by the Client only before that date of expiry. On receipt of a written acceptance of a Fixed Quotation by the Client, the Goods will be delivered to the Client or their Customer by a date to be notified by the Company.
Price and Specification
3a.Although every effort is made by the Company to provide accurate information, it is the purchasing Clients responsibility to ensure that details are correct and any Goods to be supplied are suitable for purpose prior to the specification of an order.
3b. In the event that an item of Goods specified in a purchase order is unavailable for supply by the Company, unless otherwise agreed if will not be the Company’s responsibility to offer a substitute nor suggest the same as this is the responsibility of the Client knowing its own needs, or the needs and demands of its own Customers.
3c. Unless the Client accepts a Fixed Quotation or the Company becomes party to a Contract which states that the price for Goods is fixed, the Company reserves the right to vary the price of the Goods at its discretion from time to time in accordance with its Standard Charges as at the date of delivery to the Customer.
3d. A Fixed Quotation takes into account freight rates, currency exchange rates, import and other duties and taxes of whatsoever kind (other than VAT) deemed by the Company applicable at the date of the Contract. It may be adjusted in accordance with any changes beyond the control of the Company, including but not limited to, rates, duties or taxes payable or collectable by the Company including those payable by the Company in obtaining a supply from overseas. If requested, the Company will evidence proof of all charges and changes to the Client.
3e. The ‘Price’ is the price of the Goods, plus any additional charges mentioned in 3d, plus VAT as appropriate, which is payable by the Client on all Goods.
3f. In addition to the Price, the Client shall pay the Company’s delivery charges for the Goods unless specific arrangements are made between the parties or where an installation is carried out by the Company (installation charges then falling due).
3g. Price, specification and availability of products are subject to change without prior notice; at the discretion of the manufacturer.
4a. Goods will only be supplied on account (‘On Account’) to the Company’s approved Trade Account holders. If agreed, a credit facility On Account can be afforded by the Company to the Client. Terms are strictly 30 (thirty) days from date of invoice unless otherwise agreed in writing by a Director of the Company. Agreed credit limits cannot be exceeded unless authorized by a Director of the Company. When any order will take a Client over their approved credit limit or should terms be exceeded causing a credit stop situation to arise, cleared payment is required for the difference or to normalize the account before Goods can be dispatched. No Client on credit stop can have Goods dispatched and orders will be held in abeyance until remedial action is taken. The Company reserves the right to suspend and/or terminate accounts without prior notice. In addition the Company is not obliged to afford or continue to afford On Account credit facilities and does so at its own discretion and risk, based upon the conduct of any account operated and subject to the evaluation and assessment of its Credit Insurers to whom application may be made. In accordance with Clause 4e Trade Account credit facilities may be withdrawn at any time. Notwithstanding, the Price of the Goods is and remains always payable On Demand.
4b. All payments must be made in full without any deduction (whether by way of set-off, counterclaim, discount, abatement or otherwise) unless the Company is served with a valid Court Order which requires the Company to pay an amount equal to such deduction to the Client or unless the Company has otherwise agreed to it in advance in writing. The Company does not accept debit notes in any circumstances.
4c.If the Client does not pay any sums due to the Company in adherence to any agreed credit term or after 30 (thirty) days if no formal term is set or as may be demanded (whichever is appropriate), without prejudice to any other right of the Company, the Company will rely on the provisions of the Late Payment of Commercial Debts (Interest) Act 1998 and Regulations as amended.
4d. For the avoidance of doubt the Company does not offer discounts or incentives to our Clients (including but not exclusively limited to sale or return options, stock rotation, price protection or rebates), in the course of general business. All claims made in respect of a discount or incentive perceived as due but not agreed to in advance, in writing by a Director of the Company, will be rejected without the option of further recourse.
4e. Payment in full of the Price together with any additional charges incurred in accordance with these terms and conditions shall become due immediately if the Client becomes unable to pay its debts as they fall due or has a receiver, administrator or administrative receiver appointed over a substantial part of its assets or a resolution is passed for an order to be made for its winding up (other than for the purposes of insolvent reconstruction), or if any composition or arrangement is entered into with its creditors or it ceases or threatens to cease to carry on business.
Delivery and Acceptance
5a. Whilst the Company will use its best endeavours to deliver the Goods on any agreed date, the Company shall be under no liability whatsoever for any loss or damage resulting to the Client or any Customer, due to a delay in the delivery of Goods.
5b. Neither the Client’s representatives or if appropriate the Client’s nominated Customer (together the ‘Receiving Party’) has any right to modify, cancel or change any delivery date without the prior written consent of the Client being evidenced and such request being agreed to by the Company.
5c A contact name and telephone number for the Receiving Party’s delivery point must always be provided to the Company to ensure efficiency of service; the telephone number preferably being that of a mobile device in possession of the Receiving Party which accepts SMS communications to facilitate notification of delivery arrangements.
5d. The Company reserves the right to make delivery by installments. In this event, these terms and conditions apply to each delivery as though it were a separate contract.
5e. The Company reserves the right to use its own chosen carrier for delivery of the Goods to the Receiving Party. If the Client collects the Goods personally or assigns their own carrier to collect from the Company’s premises, no delivery charges will be made. Goods will only be delivered to the Client’s address on the invoice unless otherwise agreed by the Parties in writing at the time of placing the order. The responsibility for the accuracy of any Customer address notified is that of the Client.
5f. The Company reserves the right to withhold any deliveries to any Receiving Party should account terms not be adhered to.
5g. Delivery will be deemed to have been made when the Receiving Party accepts and signs for delivery of the Goods, at which time they will be taking acceptance of the goods and a schedule of the consignment that the goods are provided under (‘Delivery Note’). The Receiving Party is obliged and responsible for informing the Company within 3 days of delivery if the order is short or damaged in any way. After that time a claim cannot against the Company in respect of any damage or shortage notwithstanding any extenuating circumstances including the failure of any Customer to adhere to the instructions set down in the Delivery Note.
5h. If the Company agrees to arrange for delivery of the Goods to a Receiving Party on a specific date, the Company must be given verbal and written notice immediately if the Goods are not received as scheduled. If the Receiving Party fails to do so, the delivery will be deemed to have been made and payment will become due from the Client, whether or not Goods have actually been delivered.
Property Risk and Insurance
6a. Risk on the Goods passes from the Company to the Client on delivery of the Goods in accordance with instructions received and 5g above, but legal title of all Goods supplied by the Company shall not pass to the Receiving Party until payment of the whole purchase price and any other sums outstanding have been received in full from the Client by the Company.
6b. The Company reserves the right to repossess the Goods at any time if i) payment is overdue, ii) the Client has a receiver, administrator or administrative receiver appointed over part of its assets iii) a resolution is passed or an order is made for the Client’s winding up (other than for the purpose of solvent reconstruction) iv) the Client ceases or threatens to cease to carry on business, whether this be at the premises of the Client, its Customer or elsewhere, and without prejudice to the other rights of the Company under the Contract. The Client will be liable for all transport and other costs and expenses incurred in the recovery of the Goods.
6c. If the Receiving Party sells or otherwise disposes of the Goods to a third party at any time before the Company has received full payment, the Client remains responsible for the proceeds of sale and must hold and keep such proceeds on trust and/or in a fiduciary capacity for the Company and the said proceeds of sale must remain the property of the Company.
6d. Where the Company supplies Goods to the Client on loan, evaluation, service loan or hire (‘Loan or Hire’), then the risk in the Goods also passes from the Company to the Client on delivery to the Client or the Client’s nominated Customer. In the event of loss, the Client will indemnify the Company to the full retail value currently recommended by the manufacturer and undertakes to reimburse the Company the full retail value immediately upon demand without dispute.
6e. Whilst afforded Goods under Loan or Hire, the Client must ensure that the Goods are kept, marked and separately stored at its expense, so as to be clearly identified as the Company’s property.
6f. The Client must hold at all times suitable insurance cover with reputable insurers against all insurable risks for the Goods under Loan or Hire from the Company from no later than the time of their leaving the premises of the Company; at the same time the Client shall also insure them for the benefit of the Company, the Client and all other persons in any way connected with the Goods, against all known and insurable risks to persons and property which might in any way arise out of the Goods or their use.
7a. The Client is not entitled to any rights of intellectual property including copyright or design or any similar rights in respect of any of the Goods supplied by the Company.
7b. The Company is free to produce similar goods and sell them to other parties without any restriction.
8. The Company is not liable for any failure in performance of any obligations under the Contract caused by factors outside its control. In the event of such failure, the Company may terminate the Contract without liability to the Client or any Customers.
Default of Customer
9a. The rights of the Company as set out in the Contract apply in addition to all rights that the Company may have by common law, statute or otherwise in respect of any default by the Client.
9b. If a Receiving Party fails to take delivery of any part of the Goods at the time or place required under the Contract, the Company has the right i) to charge the Client reasonable storage charges until delivery is taken and/or ii) at any time to give written notice to the Client requiring them to take delivery of the Goods in conformity with the Contract. In any event delivery should take place within 28 (twenty-eight) days from the date of the notice being sent. In the event that the Client or their nominated Customer fails to take delivery within the period set down, the Company may terminate the Contract, then by sending further written notice to the Client recover from the Client all losses damages and costs associated with the said transaction. Should, after such notice has been served, a further period be allowed to elapse of no less than 6 (six) calendar months during which the Client does not take delivery of the Goods, the Company shall be entitled to dispose of the Goods as they see fit without recourse to the Client. Any financial gain received from this course of action shall be exclusively for the benefit of the Company to the exclusion of the Client or any intended Customer.
9c. Notwithstanding anything contained in the Contract, the Contract may be terminated by the Company: i) immediately on giving notice in writing to the Client if the Client fails to pay any sum due under the Contract and such sum remains unpaid for 14 (fourteen) days after written notice from the Company that such sum has not been paid (such notice to contain a warning of the Company’s intention to terminate); or ii) immediately on giving notice in writing to the Client if the Client commits any material breach of any term of the Contract (other than any failure by the Client to make any payment, in which event the provisions of 9c.i shall apply) and, in the case of a breach capable of being remedied, shall have failed within 30 (thirty) days after the receipt of a request in writing from the Company, so to do, to remedy the breach (such request to contain a warning of the Company’s intention to terminate); or iii) immediately on giving notice in writing to the Client if the Client shall have a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the Client shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business.
10a. All return requests must be notified to the Company who will issue an official Return Materials Authorisation (RMA) Request Form where practicable. Once received completed, or agreement to the return is acknowledged, a RMA number will be issued. This RMA number does not confirm authorisation for credit or replacement. Any items returned without clearly exhibiting an official RMA number (see 10d below) will be rejected; this includes items returned where the RMA number is recorded so as to deface original packaging. All items will be inspected on their return and must, for the avoidance of doubt, be in their original condition and packaging (“as new”) in a saleable condition. Any missing accessories or Goods considered to be below original condition will not be fully reimbursed.
10b. Requests for returns for the rotation of goods will only be considered subject to the Company’s previous written agreement to a formal stock rotation policy. Ad hoc returns for stock rotation will not be entertained in any circumstances.
10c. The Company reserves the right to levy a re-stocking charge of up to 20% (twenty per cent) in respect of the rotation of goods (subject to 10b. above) and unwarranted returns; where no reason for return is given. Please note some items are classified as “Special Order” and therefore cannot be returned for any other reason than being faulty from new or damaged in transit.
10d. All returned Goods must be accompanied by a detailed packing list clearly indicating the RMA number issued.
10e. Where Goods are received damaged by the Receiving Party and it is obvious upon delivery, the carrier’s consignment note must be marked accordingly and the Company notified in writing within 3 days. Plasma displays and all televisions/screens exceeding one metre must be visually inspected for screen damage upon delivery as liability for risk is transferred immediately upon signature. If goods are signed for undamaged and/or unchecked but there is subsequent claim of damage this cannot be validated and any such claim will be rejected.
10f. Items will only be considered faulty from new/dead-on-arrival (“DOA”) if the Company is notified in writing within 28 (twenty-eight) days of delivery. For the avoidance of any ambiguity, physical damage cannot be considered as a reason for DOA (where Clause 10e will apply).
10g. Any Goods ordered or supplied as an advance replacement for an item being returned are liable to be invoiced in full and will only be dispatched if suitable payment is made or facilities are in place. A credit will only be issued once the validity of any return is confirmed.
10h. The Company does not undertake to reimburse any costs incurred in the return of faulty goods.
10i. No Client on credit stop can have returns processed.
10j. Without prejudice to the above if the Company never-the-less agrees to accept any Goods returned in a non-saleable condition, the Company reserves the right to charge to the Client the cost of bringing the Goods to a saleable condition.
11a. The Company warrants all products in accordance with the relevant manufacturer’s warranty or DOA period. Details of which are available upon request from the specific manufacturer.
11b. The minimum warranty period on all products, unless otherwise stated is one year from date of dispatch by the Company to the Client’s nominated Customer or the date of transfer from the Client to their Customer or thirteen months from the date of invoice from the Company to the Client, whichever is the sooner.
11c. The express terms of the Contract are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, cause of dealing or otherwise, all of which are excluded to the fullest extent permitted by law.
11d. All warranty returns outside of any applicable DOA period should, in the first instance, be dealt with in accordance with the manufacturer’s warranty; as will be included in the Goods packaging by the manufacturer.
11e. In the absence of a manufacturer’s warranty or if direct to by the manufacturer, the Company shall then be involved and will invoke the Company Warranty Return process as set down at 11f.
11 f. The Company Warranty Return process stipulates that all necessary warranty repair requests must be notified to the Company who will issue an official Warranty Return Materials Authorisation (RMA) Request Form where practicable; this notification must include any reference issued by the manufacturer for the process of recording the warranty claim. Once received completed, or agreement to the warranty return is acknowledged by the Company, a Warranty RMA number will be issued. This Warranty RMA number does not confirm authorisation of warranty repair. Any items returned without an official RMA number will be rejected. All items subject to a Warranty RMA will be inspected on their return and if no fault found will be subject to a return carriage charge and a discretionary inspection charge (minimum £25exVAT, no maximum). If the fault found is not considered a warranty repair (i.e. damaged by user or tampered with or the fault is unsubstantiated) then if appropriate the suggested cause and repair will be reported on (to the Customer and the associated Client) and will be chargeable. It is the Clients responsibility to meet any liabilities arising and the Client acknowledges such, undertaking that it will act independently in recovery of any sums thereafter due directly from the Customer without prejudice to the sum being owing to the Company.
11 g. Unless otherwise stated, all items are sold on a basic return to base warranty. This may be facilitated by the Company or to a regional repair centre nominated by the Company or the manufacturer. Any chargeable repairs will be invoiced and the Goods only dispatched if suitable payment facilities are in place and associated liabilities are acknowledged as payable by the Client. For the avoidance of doubt, the Company has no liability or obligation to replace the goods if any part has been modified or repaired improperly, stored or used, damaged by accident or neglect or maintained other than in accordance with the agreed maintenance agreement.
12a. Nothing in this Contract shall exclude or restrict either party’s liability for death or personal injury resulting from it or its employees negligence.
12b. The liability of the Company for loss of or damage to any tangible property in respect of each event or series of connected events shall not exceed £1,000,000. (One million pounds GB £ sterling.)
12c. In no event shall the Company be liable to the Client for loss of profits, loss of contracts, loss of revenue, loss of data, loss of goodwill, third party claims or indirect or consequential losses actual or contingent incurred by the Client arising from breach of contract or alleged negligence howsoever caused.
12d. In any event (including without limitation in the event that any exclusion or other provision contained in these terms and condition shall be held ineffective or severable for any reason) and save in respect of loss or damage to tangible property, as referred to in 12b above, the maximum aggregate liability of the Company howsoever arising from or in connection with the performance or non-performance of its obligations under the Contract (whether for breach of contract, negligence, misrepresentation or otherwise) shall not in any circumstances exceed £1,000,000 (One million pounds GB £ sterling).
12e. The Client shall indemnify the Company from all liability in respect of any claims which may be made against the Company and any third party or damage to person or property alleged to arise out of or in respect of the Goods or to their use whether improper or otherwise.
13. All notices under the Contract shall be issued in writing and shall be sent to the address of the parties as set out in order of precedent to the address notified on the trade account application or as established under the Contract or to such other address as the recipient may designate by notice given in accordance with the provision of this clause. Any such notice may be delivered personally or by first class pre-paid letter or by electronic transmission and shall be deemed to have been made, if by hand, when delivered, if by first class post, 48 (forty-eight) hours after posting and if by electronic transmission when dispatched.
14. The Company may modify these Terms and Conditions from time to time at its discretion by publishing and making available on its website (www.avinity.com) an amended variation or by otherwise issuing Notice in accordance with 13 above. Modified terms will become effective upon publication and notification or, if advised by advance Notice, at a date as stated in the Notice issued. By continuing to trade with the Company after the effective date of any modification to our Terms and Conditions, the Client agrees to be bound by the modified terms.