Shure B2B Standard Terms of Trade
All orders are accepted by Shure Benelux B.V. (the “Company”) subject to the following terms and conditions (the “Agreement”) which shall form part of and govern the contract for the sale of goods (“Contract”) by the Company to the customer (the “Customer”). No other written, oral or implied terms or conditions shall form part of such Contract unless expressly agreed in writing by the Company.
(a) The prices for goods supplied under a Contract (the “Goods”) shall be as set out in the Company’s price list current at the date of despatch.
(b) Unless the Company gives notification to the contrary the costs of delivery are not included in the price of the Goods.
(c) The Company reserves the right to vary prices to take account of any increase in costs, duties or taxes.
2 CREDIT AND SETTLEMENT TERMS
(a) All sums due to the Company shall be paid by the end of month following the date of the invoice (the “Settlement Date”) and may not be withheld or delayed because of any alleged defects in Goods supplied. Time of payment of the Contract is of the essence. At the discretion of the Company, a discount of 2.5% on the net value of the invoice (excluding VAT) shall apply if all monies are paid within 30 days of the invoice date. No discounts will apply to any Contract if any invoice is overdue. Discounts are subject to review or withdrawal by the Company which reserves the rights to amend the discount structure at its discretion at any time.
(b) The Company reserves the right to charge interest on overdue accounts at the rate of 2% per month compounded monthly to run from the Settlement Date until receipt by the Company of the full amount (including any accrued interest).
(c) The Company reserves the right to suspend the provision of Goods to the Customer where any amounts are overdue under any Contract with the Customer until all such amounts have been paid.
3 AVAILABILITY OF GOODS
(a) Delivery is subject to the availability of the Goods to the Company from its Suppliers. If owing to the unavailability of the Goods or any other cause beyond the reasonable control of the Company (a “Force Majeure Event”), the Company cannot deliver the goods in accordance with the Contract, it shall be entitled to:-
(i) suspend deliveries while the Force Majeure Event continues;
(ii) if the Company has insufficient stocks to meet its commitments, apportion available stocks between its customers as it decides;
(iii) make partial deliveries/shipments of goods and to invoice for them; or
(iv) terminate any Contract so affected with immediate effect by written notice to the Customer. The Company shall not be liable for any loss or damage suffered by the Customer as a result of taking any of the actions described above.
(b) A Force Majeure Event shall include (without limitation) any stoppage, delay or interruption of work of the Company or of any of its suppliers, sub-contractors, carriers or agents for reasons outside its direct control together with strikes, lock-outs, labour disputes, acts of God, war, riot, civil commotion, malicious damage, compliance with a law or governmental order, rule, regulation or direction, fire, flood and storm.
(a) All delivery dates are estimates only and the Company shall not be liable for any damage or loss arising directly or indirectly out of any delay in delivery subject to paragraph 6 below. Time of delivery is not of the essence to the Contract.
(b) If the Customer is unable to accept delivery of the Goods at the time when the Company wishes to effect delivery, the Company shall be entitled to invoice the Customer for the Goods and shall be entitled, but not bound, to arrange storage and insurance of the Goods, at the Customer’s cost.
5 PROPERTY AND RISK
(a) Notwithstanding the provisions relating to retention of title below, risk in the Goods passes to the Customer as follows:
(i) on delivery to the premises agreed between the Company and the Customer; or
(ii) where carriage is to be made by independent carriers, at the time of delivery to such carriers; or
(iii) where the Goods are sold Ex-Works upon notification to the Customer that the Goods are ready for collection.
(b) No property in, or title to, Goods shall pass to the Customer until the Customer has fully and unconditionally paid to the Company:-
(i) all sums due under the Contract for the Goods; and
(ii) all other sums due from the Customer to the Company on any account whatsoever whether relating to Contracts entered into before or after the date of the Contract in respect of the Goods or otherwise.
(c) In the event that:-
(i) the Customer is in breach of a Contract; or
(ii) an order or resolution has been passed for the winding up of the Customer; or
(iii) any encumbrancer takes possession or a Receiver is appointed in respect of all or any of the assets of the Customer or if distress, execution, sequestration or other process is levied or enforced against any or all of the assets of the Customer, or
(iv) the Customer ceases or threatens to cease to carry on business or be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (as amended) or the value of the Customer’s assets is less than the amount of its liabilities taking into account the Customer’s contingent and prospective liabilities; or
(v) the Customer makes any arrangement or composition with its creditors; or
(vi) any equivalent or similar event arises in relation to the Customer in any (other) jurisdiction, the Company shall be entitled to recover the Goods to which the Company retains title from the Customer’s premises and to re-sell the Goods.
(d) The Customer grants an irrevocable licence to the Company and its employees and agents to enter the Customer’s premises with or without vehicles during normal business hours for the purpose of inspecting and/or repossessing Goods to which it has retained title.
(e) Until the title to the Goods passes from the Company, the Customer shall:
(i) hold the Goods on a fiduciary basis as the Company's bailee;
(ii) store the Goods separately from other items and clearly identify the Goods as being the property of the Company;
(iii) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(iv) not incorporate or mix the Goods with other items.
(f) Whilst the Customer is in possession of the Goods the Customer may in the ordinary course of its business sell the Goods provided that as between the Customer and its own customer the Customer sells the Goods as principal. The Customer cannot commit the Company to any contractual relationship with or liability to the Customer’s customer or any other person.
6 NOTIFICATION OF CLAIMS
(a) The Company is not liable to the Customer:-
(i) for non-delivery unless the Customer notifies the Company of a claim within 7 days from the date of the Company’s invoice;
(ii) for shortages in quantity delivered unless the Customer notifies the Company of a claim within 7 days of receipt of the Goods;
(iii) for damage to the Goods or any part of them in transit (where the Goods are delivered by the Company or any carrier on behalf of the Company) unless the Customer notifies the Company of a claim within 7 days of receipt of the Goods;
(iv) for defects in the Goods caused by fair wear and tear, abnormal or unsuitable conditions of storage or use or any act, neglect, default of the Customer, its customers or any other third party; and
(v) for other defects in the Goods unless notified to the Company within the period of the manufacturer’s guarantee for the Goods or one month of receipt of the Goods by the Customer (whichever is the sooner).
(b) If liability is accepted by the Company under paragraph 6(a) above, the Company’s only obligation is at its option:-
(i) to make good any storage or non-delivery;
(ii) to replace or repair any Goods found to be damaged or defective; or
(iii) to refund to the Customer the amount paid by the Customer for the Goods which are the subject of a claim under paragraph 6(a) above.
(c) The Company’s maximum aggregate liability, whether for negligence, breach of contract, misrepresentation or otherwise, shall not exceed either:
(i) the amount which the Company’s public liability insurers pay in relation to the claim or, should such insurance not apply or payment not be made: or
(ii) 125% of the price invoiced to the Customer for those Goods.
(d) This paragraph 6 sets out the Company’s entire liability (including for the acts and omissions of its employees, agents or subcontractors) to the Customer in respect of:-
(i) any breach of its contractual obligations arising under a Contract;
(ii) any breach of statutory duty; and
(iii) any representation or statement (except for a fraudulent representation or statement) or any tortious act or omission, including negligence, arising under or in connection with a Contract.
(e) Notwithstanding any other provisions of a Contract, the Company does not seek to limit or exclude its liability to the Customer for death or personal injury resulting from its own or that of its employees’, agents’ or sub-contractors’ negligence, or from fraudulent misrepresentation.
(f) The Company shall not be liable to the Customer for loss of profits, contracts or goodwill, increased overheads or administration expenses, management time, or any type of special, indirect or consequential loss of any nature whatsoever (including loss or damage suffered by the Customer as a result of an action brought by any third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Customer incurring the same.
(g) The Company warrants that it has title to the Goods. All other implied terms, conditions, warranties and other matters are hereby excluded to the fullest extent permitted by law.
7 RETURNED GOODS
(a) The Company shall at its discretion accept returned Goods for credit which are not defective provided that they have been authorised to be accepted as returns in writing by the sales office of the Company in accordance with the terms of paragraph 7 (c) below.
(b) Following the return of Goods, the Company will credit the Customer with the price paid for the Goods or any other amount that the Company has agreed with the Customer when authorising the return of the Goods.
(c) The Customer shall be responsible for the costs of carriage, insurance and restocking in respect of all Goods properly returned by the Customer to the Company. Such Goods shall be at the sole risk of the Customer until receipt by the Company.
(d) The Company reserves the rights to make a handling charge or to obtain an indemnity from the Customer in respect of all other costs and expenses reasonable and necessarily incurred in respect of Goods returned by the Customer which were correctly supplied by the Company and which are not faulty.
8 NO WAIVER
No delay in exercising its rights shall be construed to be a waiver by the Company. No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
The invalidity, illegality or unenforceability of the whole or any part of this Agreement does not affect or impair the continuation in force of the remainder of this Agreement.
The Customer may not assign or transfer or purport to assign or transfer any of its rights or obligations under the Contract without first having obtained the Company’s written consent.
11 WHOLE AGREEMENT
This Agreement contains the whole agreement between the Company and the Customer and cancels all prior agreements between them (if any) relating to the Contract.
The Company and the Customer may expressly agree in writing any variation of this Agreement. Unless expressly agreed, no such agreement shall constitute, or be construed as, a general waiver of any of the provisions of this Agreement by the Company or the Customer. The rights and obligations of the Company and the Customer shall remain in force and effect notwithstanding any variation agreed between the Company and the Customer on any particular occasion.
This Contract shall be governed and construed in accordance with the laws of England and Wales and the Company and the Customer submit to the exclusive jurisdiction of the English Courts.
Any notice to be given by either party to the other shall be sufficiently given if sent by prepaid first class post or facsimile or delivered by hand to the party to be served at the address set out in the order form or such other address as may be notified in writing by one party to the other. Except in the case of delivery by hand, and save for evidence to the contrary, the notice shall be deemed to have been given on the day on which such notice ought to have been delivered in the ordinary course of postal or facsimiled communication.