T's & C's

Schedule

Terms and Conditions

1.

TERMS AND CONDITIONS

1.1

These are the terms and conditions of sale for AV Stumpfl Ltd, a company incorporated in England and Wales (registered number 15091830) with registered office at Building P, The Old Pumping Station, Pump Alley, Brentford London TW8 0AP. UK (“Supplier”).

2.

INTERPRETATION

2.1

The following definitions apply in these Conditions:

Agreement: has the meaning given in the Order Summary.

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time.

Customer: means the customer identified in the Order Summary.

Data Protection Legislation: any data protection legislation from time to time in force in the UK, including the Data Protection Act 2018, and any other directly applicable regulation relating to privacy (in each case as may be amended, updated or re-enacted from time to time).

Delivery: completion of delivery of Goods in accordance with Condition 6.5.

Delivery Date: the date specified for delivery of Goods in the applicable Order Summary.

Delivery Location: the address for delivery of the Goods, as set out in the applicable Order Summary.

Force Majeure Event: an event or circumstance beyond a party’s reasonable control.

Goods: the goods to be supplied by the Supplier as described in the Order Summary.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.

Order: the Customer's order for the Goods, as set out in the Customer's purchase order form.

Order Summary: the order summary document setting out the details of the Goods.

Prices: the prices of the Goods as stated in the Order Summary.

Software: the Supplier’s proprietary software which is incorporated into the Goods.

Warranty Period: means the period of 12 months from Delivery in case the Customer is a trader, and the period of two years from Delivery in case the Customer is a consumer.

3.

BASIS OF AGREEMENT

3.1

The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.

3.2

The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order within two weeks of receiving the Order, such acceptance to be issued by sending the Order Summary or the ordered Goods to the

Customer

, at which point the Agreement shall come into existence.

3.3

Any samples, drawings, advertising or written or oral statements produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Agreement nor have any contractual force.

3.4

A quotation for the Goods given by the Supplier shall not constitute an offer. The Supplier will charge an appropriate fee for producing such a quotation.

3.5

The Supplier may request at any time that the Customer returns any documentation relating to a quotation, Order, advertising, or project to the Supplier.

4.

GOODS

4.1

To the extent the Goods are to be manufactured in accordance with a specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of such specification. This Condition 4.1 shall survive termination of the Agreement.

4.2

The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirement, and the Supplier shall promptly notify the Customer in any such event.

4.3

The Customer warrants, undertakes and represents that the Goods shall only be used by or on behalf of the Customer in relation to the Customer’s internal business purposes, and that the Customer shall not use the Goods in relation to any services provided to any third party.

5.

QUALITY

5.1

The Supplier warrants, for the applicable Warranty Period, that Goods supplied to the Customer by the Supplier under the Agreement shall:

5.1.1

conform in all material respects with their description and any agreed specification;

5.1.2

be free from material defects in design, material and workmanship; and

5.1.3

be of satisfactory quality and fit for any purpose held out by the Supplier.

5.2

The Supplier does not warrant that the Goods will be fit for any purpose held out by the Customer, unless this has been agreed in writing.

5.3

Subject to Condition 5.4, if:

5.3.1

the Customer gives notice in writing to the Supplier during the Warranty Period immediately after discovery that the Goods do not comply with the warranty set out in Condition 5.1;

5.3.2

the Supplier is given a reasonable opportunity of examining the Goods and promptly given such data regarding the alleged defect as the Supplier may reasonably request; and

5.3.3

the Customer (if asked to do so by the Supplier) returns the Goods to the Supplier's place of business,

the Supplier shall, at its option, repair or replace the defective Goods, or reduce the price of the defective Goods.

5.4

If the Customer is a trader, it shall bear all costs that arise in connection with remedying the defect (including costs relating to removal or installation of the product, and transport). If any remedying work is carried out at the Customer’s premises, the Customer shall provide all necessary persons and machines free of charge. Goods that have been replaced will be owned by the Supplier.

5.5

The Customer shall cooperate with the Supplier to the extent necessary. The Customer undertakes to support the Supplier in remedying any defects by providing all necessary documents and information and granting the Supplier access to its systems within normal working hours (weekdays from 8am – 12 pm and 1pm to 4pm).

5.6

The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in Condition 5.1 if:

5.6.1

the Customer makes any further use of the Goods after giving notice in accordance with Condition 5.3;

5.6.2

the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods, or because the Customer used any third-party software or hardware in connection with the Goods;

5.6.3

the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;

5.6.4

the Customer alters or repairs such Goods without the written consent of the Supplier;

5.6.5

the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;

5.6.6

the Goods differ from their description or any agreed specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or

5.6.7

the defect arises in any used Goods acquired from a third party.

5.7

Subject to Condition 5.6, if the Customer is responsible for any defect, the Supplier will charge for costs incurred in relation to any assistance or error diagnosis carried out by the Supplier and any remedying of such defect.

5.8

Except as provided in this Condition 5, the Supplier shall have no liability to the Customer in respect of the failure of the Goods to comply with the warranty set out in Condition 5.1.

5.9

These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

6.

DELIVERY

6.1

Unless otherwise agreed in writing, the Customer shall collect the Goods from the Supplier's premises or such other location as may be advised by the Supplier prior to delivery during normal opening hours within three Business Days of the Supplier notifying the Customer that the Goods are ready.

6.2

The Customer shall inspect the Goods, including any packaging, immediately after delivery and notify the Supplier of any defective Goods immediately after discovery in accordance with Condition 5.3.1.

6.3

Should the Customer request the Supplier to organise delivery to its premises, the Customer shall be responsible to pay any transport costs to the haulier directly, unless the parties have expressly agreed on a delivery free of freight costs.

6.4

The Goods will be made available in packaging customary in trade. Should the Customer require any special packaging due to special transport conditions, it shall let the Supplier know. The Customer will be charged for any special packaging required.

6.5

Delivery is completed on the completion of loading of the Goods at the Delivery Location.

6.6

Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods.

6.7

If the Customer fails to take delivery of any Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where that failure or delay is caused by the Supplier's failure to comply with its obligations under these Conditions;

6.7.1

delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and

6.7.2

the Supplier shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

6.8

If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

6.9

The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

6.10

In case the Goods are to be shipped to an EU country, the Supplier will only produce a net invoice if the Customer holds a valid VAT number. The VAT number must be disclosed during the Order process.

7.

TITLE AND RISK

7.1

Risk in Goods shall pass to the Customer on Delivery of the Goods at the Delivery Location.

7.2

Title to Goods shall pass to the Customer once the Supplier receives payment in full for them.

7.3

Until title to Goods has passed to the Customer, the Customer shall:

7.3.1

store those Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;

7.3.2

not remove, deface or obscure any identifying mark or packaging on or relating to those Goods; and

7.3.3

maintain those Goods in satisfactory condition and keep them insured for their full price against all risks.

8.

PRICE

8.1

The Price for the Goods shall be stated in the Order Summary.

8.2

The Customer shall pay the Price in accordance with this Condition 8 and in the proportions and frequency as stated in the Order Summary.

8.3

The price of the Goods:

8.3.1

shall be calculated at an hourly rate, unless expressly stated otherwise in the Order Summery;

8.3.2

excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice;

8.3.3

excludes any fees for any additional services of the Supplier in relation to installing a software update on the Customer’s systems that may be requested by the Customer, which shall be invoiced to the Customer separately; and

8.3.4

excludes any other expenses incurred by the Supplier in relation the Goods, including special packaging in relation to Condition 6.4 and travel expenses, which shall be invoiced to the Customer separately.

8.4

If this Agreement has an agreed delivery time of more than four months, the Supplier may increase the Price in line with any cost increases incurred by the Supplier due to collective labour agreements or material costs. In case any Price increase is greater than 5% of the initially agreed Price, the Customer may terminate this Agreement immediately by giving notice within

three days of being notified of the Price increase.

8.5

The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.

8.6

The Customer shall pay invoices in full in cleared funds to a bank account nominated in writing by the Supplier within 20 Business Days of the invoice date. Payment shall be made to the bank account nominated in writing by the Supplier.

8.7

If the Customer fails to make any payment due to the Supplier under the Agreement by the due date for payment, then, without limiting the Supplier's remedies under Condition 13:

8.7.1

the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Condition will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%;

8.7.2

the Supplier may suspend delivery of the Goods until payment has been made in full; and

8.7.3

in case the parties have agreed that the Customer may pay in instalments, if the Customer fails to pay one instalment by its respective due date, the entire outstanding balance becomes due immediately.

8.8

All amounts due under the Agreement from the Customer to the Supplier shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

9.

INTELLECTUAL PROPERTY

9.1

All Intellectual Property Rights in the Software and in the design and manufacture of the Goods remain with the Supplier or its licensors.

9.2

The Customer’s right to use the Software is limited to the operation of the Software as required to make use of the Goods for their intended purpose. The Customer may only use the Software on the hardware specified in this Agreement, and only to the extent of the number of end user licences purchased.

9.3

Subject to Condition 9.4, The Customer shall not disassemble, reverse engineer or create derivative works based on the whole or any part of the Software and shall not attempt to do any such thing.

9.4

Should it be necessary to disclose any interfaces of the Software in order to achieve its interoperability, the Customer shall request the Supplier to do so and reimburse the Supplier’s costs in this regard. If the Supplier does not do as requested, and the Software is decompiled in accordance with copyright law, the Customer may use any results of such decomplication exclusively to achieve interoperability.

10.

LIMITATION OF LIABILITY

10.1

Nothing in these Conditions shall limit or exclude the Supplier's liability for:

10.1.1

death or personal injury caused by its negligence;

10.1.2

fraud or fraudulent misrepresentation;

10.1.3

any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

10.2

Subject to Condition 10.1:

10.2.1

the Supplier shall not be liable to the Customer, whether in Agreement, delict (including negligence), misrepresentation or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Agreement, for any loss caused by defects in Goods resulting from the conduct of third parties, atmospheric discharge, overvoltage or chemical processes, for any loss incurred during or due to transport, for any loss caused by any subcontractor or other third party engaged by or on request of the Customer; and

10.2.2

the Supplier's total liability to the Customer for all other losses arising under or in connection with the Agreement, whether in Agreement, delict, misrepresentation or otherwise, shall not exceed

25% of the value of the Goods supplied or

EUR 50.000, whichever lower.

10.3

Any Customer, who is a trader, shall assert any potential damage claim in relation to defective Goods in court within six months of discovery of such defect. If the Customer fails to do so, the Supplier shall not be liable for any loss resulting from such defect.

11.

CONFIDENTIALITY

11.1

Each party undertakes that it shall not at any time during the Agreement, and for a period of five years after termination or expiry of the Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Condition 11.2. Confidential information includes any information relating to the Supplier’s quotations, products or projects.

11.2

Each party may disclose the other party's confidential information:

11.2.1

to its employees, officers, representatives, contractors, subcontractors, or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors, or advisers to whom it discloses the other party's confidential information comply with this Condition 11; and

11.2.2

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3

No party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.

12.

CONTRACTUAL RIGHT TO CANCEL ORDER

12.1

Save from the statutory right to cancel as set out in Condition 14, the Customer does not have a contractual right to cancel any Order.

12.2

Before the Goods have been delivered to the Customer, the Customer may request a cancellation of its Order in writing. The Supplier may agree to cancel the Order at its discretion. In case the Supplier agrees to cancel the Order, the Customer shall pay to the Supplier a fee of 15% of the net value of the Order, unless otherwise agreed between the parties in writing.

12.3

After the Goods have been delivered to the Customer, the Customer may request to return the Goods to the Supplier only if the Goods are intact. The Customer may only return such intact Goods to the Supplier if the Supplier agrees to this in writing. The Customer shall bear the costs for returning the Goods to the Supplier. The Customer shall return the Goods in their original packaging and ensure that the Goods are appropriately wrapped for transport. The Supplier will issue a credit note to the Customer if the returned Goods are unused and in their original condition.

12.4

The Customer shall bear the risk in the Goods until the Supplier has accepted the returned Goods in accordance with Condition 12.3.

13.

TERMINATION

13.1

Without limiting its other rights or remedies, the Supplier may terminate the Agreement with immediate effect by giving written notice to the Customer if:

13.1.1

the Customer commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

13.1.2

the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than fourteen days after being notified in writing to make such payment;

13.1.3

the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a

substantial part of its business or is insolvent.

13.2

The Supplier may terminate the Agreement with respect to outstanding instalments in accordance with Condition 13.1. In this case, the Customer shall pay the Supplier for the instalments already delivered.

13.3

Termination of the Agreement shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

13.4

Any provision of these Conditions that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

14.

STATUTORY RIGHT TO CANCEL

14.1

In case the Customer is a consumer and purchased the Goods online, by mail order, or over telephone, the Customer has a right to cancel this Agreement in accordance with this Condition 14.

14.2

This right to cancel does not apply to any Goods that are sealed audio or sealed video recordings or sealed computer software, once these Goods are unsealed by the Customer after delivery, and to any Goods that are made to the Customer’s specifications.

14.3

The Customer has the right to cancel this Agreement within 14 days of the date of Delivery. If the Goods are delivered in instalments, this period starts on the day after Delivery of the last instalment.

14.4

In order to cancel the contract, the Customer shall notify the Supplier by giving a clear statement setting out its decision. Such statement can be sent to the Supplier by e-mail (info@AVstumpfl.com), telephone (+44 7852 365 266) or post (AV Stumpfl LTD, The Charter Building, Charter Place, Uxbridge. London UB8 1JG). The Customer may also use the sample revocation form available under http://avstumpfl.com/SampleRevocationForm.

14.5

The Customer shall return the Goods to the Supplier within 14 days of the day on which the Supplier received the Customer’s notification of cancellation in accordance with Condition 14.4. The Customer may either return the Goods to the Supplier’s premises or post the Goods to the Supplier. The Customer shall bear the costs for returning the Goods to the Supplier.

14.6

Within 14 days of receipt of the Goods, the Supplier will refund the Customer for all amounts received, including standard delivery costs, free of charge. The Supplier will refund the Customer by the method the Customer had initially used for payment.

14.7

The Supplier shall be entitled to refuse to refund the Customer, until it has received the returned Goods or until the Customer has proven that the Goods have been returned, whichever occurs earlier.

14.8

The Supplier may reduce the refunded amount if the Customer has used or damaged the Goods.

14.9

The Supplier shall be entitled to charge the Customer for services received before the cancellation, provided that the Customer expressly requested the supply of the service during the cancellation period.

15.

DISPUTE RESOLUTION

15.1

In the event the parties are unable to resolve a dispute between them arising out of or relating to the Agreement, and except for claims for interdict or other similar relief, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by the Centre for Effective Dispute Resolution and the mediation will take place at such location agreed by the parties (or by the mediator in the event parties cannot agree).

The mediation agreement referred to in the Model Procedure

shall be governed by English law.

15.2

If the dispute is not settled by mediation within 10 days of commencement of the mediation or within such further period as the parties may agree in writing, the parties shall be free to seek to resolve the dispute by such other means subject always to Condition 17.

16.

GENERAL

16.1

Entire Agreement: The Agreement shall be governed in all respects by these Conditions and each Order Summary. The Supplier shall not be bound by any terms or conditions set out in any other order form, documents or correspondence of the Customer. These Conditions shall supersede and prevail over any other terms and conditions stipulated or referred to by the Customer, and no addition, alteration or substitution of these Conditions will bind the Supplier or form part of any Agreement, unless expressly accepted in writing by an authorised officer of the Supplier.

16.2

Force Majeure: Neither party shall be in breach of the Agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for two months, either party not affected may terminate the Agreement by giving written notice to the other party.

16.3

Waiver of Rights: No failure or delay by the Supplier to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, and the single or partial exercise of such right or remedy shall not prevent or restrict the further exercise of that or any other right or remedy.

16.4

Variation: No variation of the Agreement shall be effective unless it is in writing and signed by the parties.

16.5

Invalidity: The invalidity of any of these Conditions shall not affect the validity of any other provision.

16.6

Severability: Each of these Conditions shall be separate and severable and shall be enforceable accordingly.

16.7

Relationship of Parties: Nothing in these Conditions shall constitute or be deemed to constitute a partnership or joint venture between the parties, or shall constitute either party as the agent, employee or representative of the other party. The parties to the Agreement are independent parties.

16.8

Third Party Rights: No rights are granted to any third party under this Agreement to enforce any term of the Agreement.

16.9

Assignment: Neither party shall, without the prior written consent of the other party, assign, transfer or sub-Agreement all or any of its rights or obligations under the Agreement except for the Supplier’s right, at its discretion to appoint suitably qualified consultants to assist with the Services, whose performance the Supplier remains liable for.

16.10

Notices: Any notice required to be given, shall be deemed to have been served (i) six (6) business days after time of posting if sent by airmail (ii) forty eight (48) hours after time of posting if sent by first class or prepaid UK post or (iii) at the time of delivery, if delivered personally, by commercial courier or sent by e-mail.

17.

GOVERNING LAW AND JURISDICTION