TERMS AND CONDITIONS OF BUSINESS
This Agreement is made between MGD Group Limited a company registered in England
And Wales with company number 06849075 whose trading address is 11 Pentrich Road, Giltbrook, Nottingham, Nottinghamshire NG16 2UZ (Company) and the person, firm or
Company named as the Customer in the purchase order (Customer).
1. DEFINITIONS
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Acceptance: Either the acceptance of the purchase order appearing overleaf signed by the Customer or by the Customer indicating their acceptance of the purchase order appearing in the declaration section of the Company’s website ordering process for any Goods and/or Services listed on the Company’s website.
Business Day: A day (other than a Saturday, Sunday or public holiday in England) when banks in London are open for business.
Commencement Date: The date of the Contract appearing in the purchase order.
Company’s Premises: 11 Pentrich Road, Giltbrook, Nottingham NG16 2UZ or any other premises occupied by the Company in connection with its business.
Contract: The contract between the Company and the Customer for the supply of Goods and/or Services in accordance with these Terms.
Delivery: Completion of delivery of the Goods in accordance with clause 3.4.
Delivery Address: The address specified for the Delivery in the purchase order (if not collected upon entering into the Contract).
Estimated Delivery Date: The estimated delivery date specified in the purchase order, as for delivery of Goods in accordance with clause 3.
Goods: The goods (and each of them) set out in the Sales Invoice.
Price: The price for the Goods and/or Services appearing in the purchase order (together with any applicable VAT, transport and delivery costs) in accordance with clause 8.
Services: The services set out in the Sales Invoice.
Specification: Any agreed specification or performance requirements of the Goods and/or Services brief particulars of which appear in or are referred to in the Sales invoice.]
Terms: The terms and conditions set out in this document as amended from time to time in accordance with this Contract.
VAT: VAT value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 Words in the singular shall include the plural and vice versa
1.5 A reference to one gender shall include a reference to the other genders
1.6 A reference to a statute, statutory provision or any subordinate legislation made under a statute is to such statute, provision or subordinate legislation as amended or re-enacted from time to time whether before or after the date of this agreement and, in the case of a statute, includes any subordinate legislation made under that statute whether before or after the date of this agreement.
1.7 A reference to writing or written includes e-mail.
1.8 Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
2. BASIS OF CONTRACT
These are the Terms on which the Company will supply the Goods and/or Services to the Customer, which are described in the Sales invoice. These Terms are binding on the Customer and the Company when the Customer signs the Acceptance, at which point the Contract will come into existence between the Customer and the Company.
3. SUPPLY OF THE GOODS
3.1 The Company shall supply and the Customer shall purchase the Goods at the Price in accordance with the Terms of this agreement.
3.2 The Goods supplied to the Customer by the Company under this agreement shall
3.2.1 Conform to the Specification;
3.2.2 Be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Company;
3.2.3 Be free from defects in design, material and workmanship and remain so for a minimum of 12 months (or longer if specified by the manufacturer’s guarantee) after Delivery if the Goods are new or for an agreed period not exceeding 3 months if the Goods are not new; and
3.2.4 Comply with all applicable statutory and regulatory requirements
3.3 Except as set out in this agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
3.4 The Company shall deliver the Goods to the Customer as follows at the Company’s Premises at any time after the Company has notified the Customer that the Goods are ready for collection or, if some other place for delivery is agreed as the Delivery Address, by the Company delivering the Goods to such address.
3.5 Delays in the delivery of the Goods shall not entitle the Customer to:
3.5.1 refuse to take delivery of the Goods; or
3.5.2 claim damages; or
3.5.3 terminate this agreement
For the avoidance of doubt, it is agreed that time for delivery shall not be of the essence unless it has been stated to be so in the Sales invoice.
3.6 If delivery is to take place at the Company’s Premises and the Customer fails to take delivery of the Goods within five Business Days of the Company notifying the Customer that the Goods are ready for collection then, except where such failure or delay is caused by the Company’s failure to comply with its obligations under this agreement:
3.6.1 delivery of the Goods shall be deemed to have been completed at 9.00am on the fifth Business Day following the day on which the Company notified the Customer that the Goods were ready for collection; and
3.6.2 the Company shall store the Goods until delivery takes place, and may charge the Customer for all related costs and expenses (including insurance).
3.7 The Customer shall forfeit any deposit paid to the Company if after 28 days the Customer has failed to take delivery of the Goods.
4. TITLE AND RISK
Title and risk in the Goods shall pass to the Customer once the Company has received payment in full.
5. SERVICES
5.1 The Company shall supply the Services to the Customer in accordance with the Sales invoice in all material respects.
5.2 The Company shall undertake the Services using reasonable care and skill, as soon as reasonably practicable. Any dates proposed are estimated only. Whilst the Company will make every effort to complete the Services as quickly as reasonably possible, there may be delays due to a Force Majeure Event. See clause 1-8 for the Company’s responsibilities when a Force Majeure Event happens.
5.3 The Company shall have the right to make any changes to the services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.
6. USE OF COMPANY’S WEBSITE, IF THE CUSTOMER IS A CONSUMER
This clause 6 only applies if the Customer is a consumer.
The Customer may only purchase Goods and/or Services from the Company’s website if they are at least 18 years old.
7. USE OF COMPANY’S WEBSITE, IF THE CUSTOMER IS A BUSINESS
This clause 7 only applies if the Customer deals as a business
The Customer confirms that they have authority to bind any business on whose behalf they use the Company’s website to purchase Goods and/or Services.
8. PRICE AND PAYMENT
The Customer shall pay the Company the Price of the Goods and/or Services specified in the purchase order within 30 days of the Sales invoice date (Payment Deadline). lf the Customer fails to make such payment by the Payment Deadline, then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above Barclays Bank PLC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. The time for payment of the Price of the Goods and/or Services under the Contract shall be of the essence of the Contract.
9. THE COMPANY’S RIGHTS TO CANCEL AND APPLICABLE REFUND
The Company may cancel the Contract for Goods and/or Services at any time by giving the Customer 30 day’s written notice if the Customer breaks the Contract in any material way.
10. THE CUSTOMER’S RIGHTS TO CANCEL AND APPLICABLE REFUND
10.1 The Customer has the following rights to cancel the Contract for Goods and/or Services, including where the Customer chooses to cancel because the Company is affected by a Force Majeure Event, the Customer may cancel this Contract at any time before the Company dispatches the Goods or the start date for the Services.
10.2 lf the Customer so cancels this Contract, the Company will refund any prepayment for Services that have not been provided to the Customer, or Goods that have not been delivered to the Customer (including delivery charges).
10.3 However, if the Customer cancels this Contract after the Company has started work, the Customer must pay to the Company any costs reasonably incurred in starting to fulfil the Contract, and this charge will be deducted from any refund that is due to the Customer or, if no refund is due to the Customer, invoiced to the Customer. These charges will not apply where the Customer cancels this Contract because of the Company’s breach.
10.4 Once the Company has begun to supply the Goods and/or Services to the Customer, the Customer may only cancel the Contract by giving the Company written notice if:
10.4.1 the Company breaks this Contract in any material way;
10.4.2 the Company goes into liquidation or a receiver or an administrator is appointed over the Company’s assets; or
10.4.3 the Company is affected by a Force Majeure Event
10.5 lf the Customer has any questions or complaints, the Customer shall contact the Company by writing to it at its address specified on page 1, by calling 0115 9383892 or by e-mailing the Company at sales@musicgeardirect.co.uk.
11. IF THE CUSTOMER IS A CONSUMER
This clause 11 only applies if the Customer is a consumer and the Contract was not concluded on the Company’s Premises.
11.1 lf the Customer is not a business and the Contract was not concluded on the Company’s Premises, the Customer will have a legal right to cancel a Contract under the Consumer Contracts (lnformation, Cancellation and Additional Charges) Regulations 2013 during the period set out below in clause 11.4. This means that during the relevant period if the Customer changes their mind or decides for any other reason that they do not want to receive or keep the Goods, they can notify the Company of their decision to cancel the Contract and receive a refund.
11.2 However, this cancellation right does not apply in the case of:
11.2.1 sealed Goods, once these Goods are unsealed after the Customer receives them; and
11.2.2 any Goods which become mixed inseparably with other items after their delivery.
11.3 lf during the relevant period, the Goods are unsealed after the Customer receives them, the Customer can notify the Company of their decision to cancel the Contract and receive a credit note.
11.4 The Customer’s legal right to cancel the Contract starts from the Commencement Date. The Customer’s deadline for cancelling the Contract then depends on what the Customer has ordered and how it is delivered, as set out in the table below:
| The Contract
| End of the cancellation period |
| The Contract is for the Goods (which are not delivered in installments on separate days).
| The end date is the end of 14 days after the day on which the Customer receives the Goods. Example: if the Commencement Date is on 1- January and the Customer receives the Goods on 10 January, the Customer may cancel at any time between 1- January and the end of the day on 24 January. |
| The Contract is for either of the following: • Goods which are delivered in separate days. • multiple Goods which are delivered on separate days. | The end date is 14 days after the day on which the Customer receives the last installment of the item or the last of the separate Goods ordered. Example: if the Commencement Date is on 1 January and the installments on Customer receives the first installment of the Goods or the first of multiple Goods on 10 January and the last installment or last separate item of Goods on 15 January, the Customer may cancel in respect of all installments and any or all of the separate Goods at any time between l January and the end of the day on 29 January. |
| The Contract is for the regular delivery of Goods over a set period.
| The end date is 14 days after the day on which the Customer receives the first delivery of the Goods. Example: if the Commencement Date is on 1 January in respect of Goods to be delivered at regular intervals over a year and the Customer receives the first delivery of Goods on 10 January, the Customer may cancel at any time between 1 January and the end of the day on 24 January. 24 January is the last day of the cancellation period in respect of all Goods to arrive during the year. |
11.5 To cancel the Contract, the Customer must give the Company notice in writing that they have decided to cancel. The Customer may use a copy of the cancellation form which is attached at the back of these Terms as a schedule.
11.6 If the Customer cancels the Contract the Company will
11.6.1 refund the Customer the Price paid for the Goods. However, the Company is permitted by law to reduce the Customer’s refund to reflect any reduction in the value of the Goods, if this has been caused by the Customer handling them in a way which would not be permitted by the Company. lf the Company refunds the Customer the Price paid before the Company is able to inspect the Goods and later discovers the Customer has handled them in an unacceptable way, the Customer must pay the Company an appropriate amount.
11.6.2 refund any delivery costs the Customer has paid, although, as permitted by law, the maximum refund will be the costs of delivery by the least expensive delivery method the Company offers (provided that this is a common and generally acceptable method). For example, if the Company offers delivery of Goods within 3-5 days at one cost but the Customer chose to have the Goods delivered within 24 hours at a higher cost, then the Company will only refund what the Customer would have paid for the cheaper delivery option.
11.6.3 make any refunds due to the Customer as soon as possible and in any event within the deadlines indicated below:
a: if the Customer has received the Goods and the Company has not offered to collect the Goods from the Customer: 14 days after the day on which the Company receives the Goods back from the Customer or, if earlier, the day on which the Customer provides the Company with evidence that the Customer has sent the Goods back to the Company.
b: if the Customer has not received the Goods or the Customer has received the Goods and the Company has offered to collect it from the Customer 14 days after the Customer informs the Company of their decision to cancel the Contract.
11.7 If the Customer has returned the Goods to the Company under this clause 11 because they are faulty or mis-described, the Company will refund the Price of the Goods in full, together with any applicable delivery charges, and any reasonable costs the Customer incurs in returning the item to the Company.
11.8 The Company will refund the Customer on the credit card or debit card used by the Customer to pay. If the Customer used vouchers to pay for the Goods the Company may refund the Customer in vouchers.
11.9 lf the Goods have been delivered to the Customer before the Customer decides to cancel the Contract:
11.9.1 then the Customer must return the Goods to the Company without undue delay and in any event not later than 14 days after the day on which the Customer notified the Company that they wish to cancel the Contract. The Customer can either send the Goods back or return the Goods to the Company Premises. lf the Company has offered to collect the Goods from the Customer, the Company will collect the Goods from the Delivery Address to which the Goods were delivered. The Company will contact the Customer to arrange a suitable time for collection;
11.9.2 unless the Goods are faulty or not as described, the Customer will be responsible for the cost of returning the Goods to the Company. lf the Goods cannot be returned by post, the Company will estimate that if the Customer uses the carrier which delivered the Goods, these costs should not exceed the sums the Company charged the Customer for delivery. If the Company has offered to collect the Goods from the Customer, the Company will charge the Customer the direct cost to the Company of collection.
12. CONSEQUENCES OF TERMINATION
12.1 Except where expressly stated to the contrary, the rights and obligations of the parties under the Contract will cease immediately upon expiry or termination of the Contract. However, expiry or termination will not affect any accrued rights, obligations or liabilities.
12.2 On expiry or termination of the Contract, the Company will return any keys or other property of the Customer which has been provided to it in connection with the Goods and/or Services.
12.3 lf the Company has any legal obligation or duty to continue providing any of the Goods and/or Services for any period of time after termination of the Contract, the Customer shall be liable to continue to accept and pay for those Goods and/or Services in accordance with the Terms of the Contract.
12.4 The following conditions of these Terms shall survive expiry or termination of the Contract for whatever reason:
12.4.1 the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of the Goods and/or Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
12.4.2 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
12.4.3 clauses which, expressly or by implication survive termination, shall continue in full force and effect.
13. INDEMNITY
13.1 The Company shall indemnify the Customer against all liabilities, costs, expenses, damages and losses (including any direct or indirect consequential losses, Ioss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with any claim made against the Customer for actual or alleged infringement of a third party’s lntellectual Property Rights arising out of or in connection with the supply or use of the Goods.
13.2 Nothing in this clause shall restrict or limit the Customer’s general obligation at law to mitigate a loss which it may suffer or incur as a result of a matter that may give rise to a claim under this indemnity.
14. MANUFACTURER GUARANTEES
Some of the Goods may be sold to the Customer with a manufacturer’s guarantee. For details of the applicable terms and conditions, the Customer shall refer to the manufacturer’s guarantee provided with the Goods.
15. WARRANTY FOR THE GOODS
15.1 For Goods which do not have a manufacturer’s guarantee, the Company will provide a warranty that on delivery and for a minimum period of 12 months from delivery, the Goods shall be free from material defects. However, this warranty does not apply in the circumstances described in clause 15.2.
15.2 The warranty in clause 15.1 does not apply to any defect in the Goods arising from:
15.2.1 fair wear and tear;
15.2.2 wilful damage, abnormal storage or working conditions, accident, negligence by the Customer or by any third party;
15.2.3 if the Customer fails to operate or use the Goods in accordance with the user instructions; or
15.2.4 any alteration or repair by the Customer or by a third party who is not one of the Company’s authorised repairers.
16. THE COMPANY’S LIABILITY IF THE CUSTOMER IS A BUSINESS
This clause 16 only applies if the Customer is a business.
16.1 The Company only supplies the Goods for internal use by the Customer, and the Customer agrees not to use the Goods for any resale purposes unless this is made clear at the point of purchase.
16.2 Nothing in these Terms limits or excludes the Company’s liability for:
16.2.1 death or personal injury caused by the Company’s negligence;
16.2.2 fraud or fraudulent misrepresentation;
16.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
16.2.4 defective products under the Consumer Protection Act 1987; and
16.2.5 the indemnity contained in clause 13.
16.3 Subject to clause 16.2, the Company will under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
16.3.1 any loss of profits, sales, business, or revenue;
16.3.2 loss or corruption of data, information or software;
16.3.3 loss of business opportunity;
16.3.4 loss of anticipated savings;
16.3.5 loss of goodwill; or
16.3.6 any indirect or consequential loss.
16.4 Subject to clause 16.2, the Company’s total liability to the Customer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Price of the Goods or the price of an individual component of the Goods which proves to be faulty and can be replaced.
16.5 Except as expressly stated in these Terms, the Company does not give any representation, warranties or undertakings in relation to the Goods. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, the Company will not be responsible for ensuring that the Goods are suitable for the Customer’s purposes.
17. THE COMPANY’S LIABILITY IF THE CUSTOMER IS A CONSUMER
This clause 17 only applies if the Customer is a consumer.
17.1 lf the Company fails to comply with these Terms, the Company is responsible for the loss or damage the Customer suffers that is a foreseeable result of the Company’s breach of these Terms or the Company’s negligence. Loss or damage is foreseeable if it is an obvious consequence of the Company’s breach or if it was contemplated by the Customer and the Company at the time the parties entered into the Contract.
17.2 The Company only supplies the Goods for domestic and private use. The Customer agrees not to use the Goods for any commercial, business or resale purposes, and the Company has no liability to the Customer for any loss of profit, loss of business, business interruption, or loss of business opportunity.
17.3 The Company does not in any way exclude or limit its liability for:
17.3.1 death or personal injury caused by the Company’s negligence;
17.3.2 fraud or fraudulent misrepresentation;
17.3.3 any breach of the terms implied by section 12 of the Sale of Goods Act 1979 and by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
17.3.4 any breach of the terms implied by section 13, t4 and 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 (description, satisfactory quality, fitness for purpose and samples);
17.3.5 defective products under the Consumer Protection Act 1987;
17.3.6 its obligations under the Consumer Contracts (lnformation, Cancellation and Additional Charges) Regulations 2013; and
17.3.7 the indemnity contained in clause 13.
18. FORCE MAJEURE
18.1 Neither party (or any person acting on its behalf) shall have any liability or responsibility for failure to fulfil any obligation under this agreement so long as and to the extent to which the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event. A Force Majeure Event is defined below in clause 18.3.
18.2 A party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of a Force Majeure Event:
18.2.1 notify the other party of the nature and extent of such Force Majeure Event; and
18.2.2 use all reasonable endeavours to remove any such causes and resume performance under this agreement as soon as feasible.
18.3 A Force Majeure Event means an event beyond the control of a party (or any person acting on its behalf), which by its nature could not have been foreseen by such party (or such person), or, if it could have been foreseen, was unavoidable, and includes, without limitation, acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources.
19. SEVERANCE
19.1 lf any provision of this agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
19.2 lf any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
20. VARIATION AND WAIVER
20.1 Any variation of this agreement must be in writing and signed by or on behalf of the parties.
20.2 Any waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
20.3 No failure to exercise or delay in exercising any right or remedy provided under this agreement or by law constitutes a waiver of such right or remedy nor shall it prevent any future exercise or enforcement of such right or remedy.
20.4 No single or partial exercise of any right or remedy under this agreement shall prevent or restrict the further exercise of that or any other right or remedy.
21. NOTICES
21.1 A notice served under this agreement shall be signed by or on behalf of the party giving it, shall be sent for the attention of the person, and to the address given in this clause 21 and shall be sent by pre-paid first-class post or recorded delivery.
21.2 The addressees for service of notice are:
21.2.1 The Company: the Company’s Premises
21.2.2 The Customer: the Delivery Address appearing in the purchase order
21.3 A notice or any other communication given in connection with this agreement is deemed to have been received at 9.00am on the second Business Day after posting. To prove delivery, it is sufficient to prove that the envelope containing the notice was properly addressed and posted.
22. ENTIRE AGREEMENT
22.1 This Contract constitutes the whole agreement and understanding of the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement.
22.2 Each party acknowledges that, in entering into this agreement, it has not relied on any statement, representation, assurance or warranty (whether made negligently or innocently) other than those expressly set out in this agreement.
22.3 Each party agrees that all liability for and remedies in respect of any representations are excluded except as expressly provided in this agreement.
22.4 Nothing in this clause shall limit or exclude any liability for fraud
23. RIGHTS OF THIRD PARTIES
No term of this agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this agreement, but this does not affect any right or remedy of a third party, which exists or is available apart from under that Act.
24. GOVERNING LAW AND JURISDICTION
24.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
24.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
E&EO.
