Conditions of Sale
The following standard conditions apply to every Contract entered into by Katarzyna Maria Chruscicka of Kateviolin.co.uk, PO Box 494, Leeds, LS6 9DG ("KMC") with a Customer for the supply of Goods and/or Services (all as defined below).
1.1 In these Conditions the following terms will have the following meanings:
"Business Day" means Monday to Friday (inclusive) except for public and bank holidays in England.
"Conditions" mean KMC's standard Conditions of Sale set out in this document together with any other special conditions specified on the Quotation.
"Contract" means the Quotation, the Order and KMC's acceptance thereof, together with the Conditions.
"Customer" means the person, firm or company specified on the Quotation and placing the Order.
"Customer's Equipment" means any equipment or other materials provided by the Customer to be used by KMC in respect of the Work;
"Default Fee" means the fee chargeable by KMC to the Customer which shall be equivalent to the total of any costs and/or liabilities incurred by KMC as a result of the Customer failing to comply with condition 3.2.
"Goods" means the Goods as set out in the Order.
"Intellectual Property" means patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
"Order" means the written order placed by the Customer for the supply of the Work.
"Quotation" means the quotation or rates quoted to the Customer by KMC for the Work prior to the Customer's Order.
"Services" means the violinist services that KMC shall provide to the Customer if required, as set out in the Specification and described in the Order.
"Specification" means the specification in relation to the Work as set out in the Order.
"Work" means the supply of:
(a) Goods; and/or
as described in the Order unless otherwise agreed in writing by the parties.
1.2 In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes.
2 Offer and Acceptance
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services from KMC in accordance with these Conditions.
2.2 The Contract shall be deemed to have been entered into upon the Customer's receipt of KMC's written acknowledgement of the Order or when KMC commences the Work, whichever occurs first.
2.3 All Quotations are made, Orders accepted and Contracts performed subject to these Conditions. These Conditions are the sole terms and conditions applicable and override any other terms, conditions or warranties which the Customer may seek to impose or which are implied by trade, custom or course of dealing, and the placing of an Order shall indicate unqualified acceptance of these Conditions.
2.4 No variation, waiver or supplement to the Conditions shall be binding on KMC unless expressly accepted by KMC in writing.
2.5 The Quotation is an estimate only.
2.6 All descriptive matter, specifications, prices, samples, advertising, specifications and other data submitted by KMC (whether in the Quotation or in any catalogues, brochures, advertisement or price lists), are deemed to be approximate only and are intended merely to present a general idea of the Goods and/or Services available from KMC. They shall not form part of the Contract and this is not a sale by sample. No Contract shall come into existence until the Customer's Order has been accepted by KMC as set out in condition 2.2.
2.7 Any Quotation given by KMC shall not constitute an offer and is only valid for a period of 30 days from its date of issue and may be withdrawn by KMC within such time period at any time by written or oral notice from KMC to the Customer.
2.8 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, acknowledgement of order, invoice or other document issued by KMC shall be subject to correction without any liability on the part of KMC.
2.9 KMC shall be at liberty to withdraw from any negotiations or otherwise until such time as the Contract shall have become binding without being under any liability whatsoever to the Customer.
3 Order and Specification
3.1 KMC at her sole discretion may waive the requirement for Orders to be written, and may accept verbal Orders, however this shall not to be taken as a waiver by KMC of any other of the Conditions whatsoever.
3.2 Unless otherwise agreed in writing by KMC, the Customer shall be responsible for:-
(a) submitting the Specification to KMC; and
(b) ensuring that the content of the Specification is accurate and complete; and
(c) giving to KMC any necessary information to enable KMC to proceed with the Order.
3.3 Failure by the Customer to comply with the above condition 3.2 shall result in KMC being entitled at its sole discretion to:
(a) charge the Customer a Default Fee; and/or
(b) terminate the Contract with immediate effect upon written notice to the Customer.
3.4 KMC reserves the right without notice to the Customer to make any changes to the Specification, providing the quality or performance of the Work is not materially affected and/or where required as a matter of law.
3.5 The Customer shall indemnify and shall keep KMC and her employees and agents ("Representatives") indemnified against all claims, damages, costs, penalties and expenses incurred by KMC or its Representatives arising from KMC's use of the Specification to carry out the Work (including, without prejudice to the generality of the foregoing, any infringement of any third party Intellectual Property rights).
3.6 Once accepted in accordance with condition 2.2 no Order may be cancelled by the Customer except with the written agreement of KMC. If KMC agrees to the cancellation of the Customer's Order in accordance with this condition 3.6, the Customer's liability shall be limited to payment to KMC of all costs reasonably incurred by her in fulfilling the Order up to the point of acceptance of cancellation by KMC.
3.7 If the Customer requests that KMC submit on its behalf a draft Specification KMC shall as soon as reasonably practicable submit the draft Specification to the Customer and the Customer shall comment on, send revisions to and sign-off the draft Specification within 7 working days of receipt of the draft Specification.
3.8 KMC shall not proceed with the Order until the Customer has signed off the Specification where submitted in accordance with condition 3.2 or the draft Specification in accordance with condition 3.7.
4.1 Prices for the Work are the rates as set out in the Quotation, or if no price is quoted, the price set out in KMC's price list from time to time in force. The price of the Works are exclusive of value added tax and similar taxes, levies, charges or duties, costs and charges of packaging, insurance and transport (as applicable) which the Customer shall be additionally liable to pay to KMC where incurred as a result, whether direct or indirect, of providing the Work.
4.2 KMC reserves the right, by giving notice to the Customer, at any time before acceptance of the Order or before delivery (as defined in condition 6.2) to revoke or vary a Quotation and increase the price of the Work to reflect any increase in the cost to KMC in executing the Contract due to any factor beyond the control of KMC (such as, without limitation, any increase in the cost of overheads, or currency), any change in delivery dates, quantities, or specifications for the Work arising as a result of any error or omission or changes deemed necessary by the Customer, or any delay or interruption on the Contract not attributable to KMC or for any other reason.
5 Terms of Payment
5.1 Unless otherwise agreed in writing, KMC shall be entitled to:
(a) in respect of the sale of Goods, invoice the Customer for the Goods prior to delivery; and
(b) in respect of the supply of Services, invoice the Customer as follows:
(i) 10% of KMC's fee for the Services upon acceptance of the Order by KMC; and
(ii) the balance of KMC's fee for the Services at any time before or after delivery of the Services.
5.2 Subject to condition 5.8 and unless otherwise agreed by KMC in writing, payment by the Customer shall be made:
(a) in respect of the sale of Goods in clause 5.1(a), within 7 days of the date of invoice;
(b) in respect of 10% of KMC's fee for the Services in clause 5.1(b)(i), immediately upon acceptance of the Order; and
(c) in respect of the balance of KMC's fee for the Services in clause 5.1(b)(ii), immediately upon delivery of the Services or the issuance of KMC's invoice, as KMC may in her sole discretion decide.
5.3 The time of payment shall be of the essence of the Contract.
5.4 No payment shall be deemed to have been received until KMC has received cleared funds.
5.5 Where the Work is performed by instalments KMC may invoice each instalment separately and the Customer shall pay such invoices in accordance with these Conditions.
5.6 The Customer shall make all payments due under the Contract in full without any deduction whether by set-off, counterclaim, discount, abatement or otherwise.
5.7 If the Customer fails to make any payment on or before the due date for payment of an invoice or as otherwise agreed in writing by KMC then without prejudice to any other right or remedy available to KMC, KMC shall be entitled to:
(a) cancel the Contract so far as any Goods remain to be delivered or Services remain to be performed under it;
(b) suspend any further delivery of the Goods or performance of any Service; and
(c) charge the Customer interest (both before and after any judgement) on any amounts overdue, at the rate of 4% per annum above the HSBC plc base rate as applying from time to time accruing on a daily basis from the due date for payment until receipt by KMC of the full amount, whether before or after judgement, compounding quarterly.
5.8 KMC RESERVES THE RIGHT TO REQUIRE PAYMENTS, IN WHOLE OR IN PART, IN ADVANCE OF DELIVERY OF THE WORK, IN WHOLE OR IN PART, AT HER SOLE DISCRETION.
6.1 KMC shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (the "Delivery Location").
6.2 Unless otherwise agreed in writing delivery of the Goods shall occur as follows:
(a) where KMC is providing Goods, when the Goods arrive at the Delivery Location; or
(b) where KMC is providing Services, when KMC notifies the Customer the Services are complete, or, in default of notification by KMC, where the Services would reasonably be deemed to have been completed,
and conditions 6.2(a) - 6.2(b) above shall be defined as "delivery" as applicable.
6.3 If the Customer fails or refuses to accept delivery on the due date or KMC is unable to deliver on time or at all because the Customer has not provided KMC, in KMC's sole discretion adequate instructions, documents, Customer Equipment, licences or authorisations for delivery at the time stated or access to the appropriate Customer premises where the Services are to be performed then:-
(a) the Customer shall be liable to KMC for all and any loss or costs arising, whether directly or indirectly, from such failure or refusal or inability to perform;
(b) delivery of the Goods shall have been deemed to have been completed; and
(c) KMC may store the Goods until delivery whereupon the Customer shall be liable for all related costs and expenses (including without limitation storage and insurance).
This provision shall be in addition to and not in substitution of any other payment or damages for which the Customer may become liable in respect of its failure to take delivery at the appropriate time.
6.4 If 10 Business Days after KMC notified the Customer that the Goods were ready for delivery the Customer has not accepted or taken delivery of them, KMC may sell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
6.5 Any dates quoted by KMC for delivery are approximate only and unless otherwise specifically agreed in writing KMC shall not be liable for any delay in despatch or delivery or any loss or any damage thereby arising. Time of delivery shall not be of the essence, and the Customer shall not be able to cancel the Contract, refuse to accept delivery or withhold payment on account of any delay howsoever caused.
6.6 KMC reserves the right to deliver in separate instalments and each such instalment shall constitute a separate Contract.
6.7 No cancellation or termination of any one or more Contract relating to an instalment shall entitle the Customer to treat any other Contract or instalment as repudiated or cancelled.
7.1 The risk in the Goods shall pass to the Customer at the point of delivery in accordance with condition 6.
7.2 Delivery shall be deemed to have occurred:-
(a) in respect of the Goods, unless the Customer shall have notified KMC in writing within 5 days of the date when the Goods were (or as applicable, would in the ordinary course of events have been) delivered (as applicable) of any alleged damage, defect or shortage in delivery, for which time shall be the essence; or
(b) in respect of the Services, unless the Customer shall have notified KMC within 5 working days of the date of completion by KMC of the Services of any alleged defect or non-performance of the Services.
7.3 Unless the condition in condition 7.2 (a) or (b) as applicable is strictly observed, KMC shall be under no liability whatsoever in respect of delivery (including, without limitation, any loss or damage in transit (or non-delivery) of the whole or any part of the Goods or loss or damage relating to performance of the Services (or non-performance).
8.1 Title in the Goods or any part of them or in any Goods of KMC (whether delivered under this Contract or otherwise) shall not pass to the Customer until the Customer has paid in full all monies owing to KMC under this Contract and any other Contract.
8.2 Despite any other provision, if the Customer shall be in breach of the terms of this Contract and/or the Contract is terminated for whatever reason, then all monies owed by the Customer to KMC, whether under this Contract or otherwise, shall become immediately due and payable.
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as KMC's bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as KMC's property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on KMC's behalf from the date of delivery; and
(e) give KMC such information relating to the Goods as KMC may require from time to time.
8.4 Until ownership of the Goods has been passed in accordance with condition 8.1 the Customer hereby grants to KMC or her Representatives an irrevocable licence to enter upon the Customer's premises to recover and/or resell such Goods as KMC may deem necessary to recover all sums owing to her by the Customer.
9.1 The Company warrants that the Services shall be provided:-
(a) using reasonable skill and care; and
(b) subject to condition 9.2, in all material respects in accordance with the Specification and the terms of the Order.
9.2 Where no Specification is provided by the Customer in respect of the Services, the Services shall be carried out in accordance with standard industry practice.
9.3 KMC shall use all reasonable endeavours to meet any performance dates for the Services specified in the Specification, the Order and/or otherwise agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
9.4 If applicable, the Customer shall provide KMC with any documents required by KMC in order to provide the Services in paper form a minimum of 7 working days following KMC's request. Failure to do so will result in KMC not being responsible for any default, error or omission which may occur due to the information in the document not being taken into account.
10 Customer Obligations
10.1 The Customer shall:
(a) ensure that the terms of the Order and the information it provides in the Specification are complete and accurate;
(b) co-operate with KMC in all matters relating to the Work;
(c) provide KMC and her Representatives with access to the Customer's premises and other facilities as reasonably required by KMC to provide the Work;
(d) provide KMC with such information and materials as KMC may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Work before the date on which the Services are to start; and
(f) keep and maintain all materials, equipment, documents and other property of KMC ("Materials") at the Customer's premises in safe custody at its own risk, maintain the Materials in good condition until returned to KMC, and not dispose of or use the Materials other than in accordance with KMC's written instructions or authorisation.
11 Warranty and Liability
11.1 The Company warrants that the Goods will meet the Specification in all material respects at the point of delivery in accordance with condition 6.2(a).
11.2 In the event that any aspect of the Goods do not meet the warranty in accordance with condition 11.1, then the Customer must immediately notify KMC of such in writing, whereupon KMC shall be given a reasonable opportunity to examine such Goods and shall at its sole discretion replace, give credit for, repair or rectify the Goods.
11.3 KMC shall not be liable for the Goods' failure to comply with the warranty in condition 11.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with condition 11.2;
(b) the defect arises because the Customer failed to follow KMC's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of KMC following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of KMC; or
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
11.4 This condition 11 sets out the entire financial liability of KMC (including any liability for the acts or omissions of her Representatives) to the Customer in respect of any breach of the Contract; any use made by the Customer in respect of any breach of the Contract; and any representation, statement or tortious act or omission (including negligence) arising out of or in connection with the Contract.
11.5 Except as expressly set out in these Conditions, all warranties, conditions and other terms implied by statute or common law or otherwise are, to the fullest extent permitted by law, excluded from the Contract.
11.6 The Company shall not be liable for any defect in the Goods and/or performance of the Services as a result of KMC's compliance with the Specification supplied and/or approved in accordance with condition 3.8 above by the Customer.
11.7 Nothing in these conditions shall have the effect of excluding or limiting any liability of KMC for death or personal injury caused by the negligence of KMC or her Representatives; or for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by KMC; or for any breach by KMC of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or for any liability that, by law, cannot be limited or excluded.
11.8 Subject to condition 11.7:
(a) KMC shall not be liable in respect of any loss, liability, damage in relation to or arising out of Goods found to be defective or by reason of the acts, omissions, negligence or default of the Customer or Customer's servants or agents, or any defect to the Customer's Equipment or property which could not have been reasonably ascertained by KMC or its Representatives when providing the Services;
(b) KMC shall not be liable for any loss or damage whatsoever or howsoever caused by any delay in the supply of the Work resulting from events beyond KMC's control;
(c) KMC shall not be liable for loss of profits; or loss of business; or depletion of goodwill and/or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, cost, damages, charges or expenses; and
(d) KMC's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise shall be limited to the invoiced price paid or payable for the Work under the relevant Contract.
11.9 This condition 11 shall survive the termination of the Contract, howsoever caused.
12.1 In the event that:
(a) the Customer defaults in any of its commitments or obligations to KMC which cannot be remedied; or
(b) the Customer commits a breach of the Contract and fails to remedy such breach within 30 days of receipt of notice from KMC specifying the breach;
(c) the Customer makes any voluntary arrangement with creditors or becomes subject to an administration order or becomes bankrupt or insolvent; or (being a company) goes into liquidation (other than for the purposes of amalgamation or reconstruction); or
(d) an encumbrancer takes possession, or receiver or administrative receiver or administrator is appointed, of any of the property and assets of the Customer; or
(e) the Customer ceases, or threatens to cease, to carry on business; or
(f) KMC reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly,
KMC shall be entitled to:-
(a) withhold or suspend delivery of any of the Goods or Services in whole or in part; and/or
(b) terminate the Contract (without prejudice to other rights) with immediate effect upon written notice to the Customer.
12.2 In the event of an occurrence as outlined in condition 12.1 then the Customer shall indemnify and shall keep KMC indemnified against all loss including loss of profit, costs (including, but not limited to, the costs of labour and materials used and overheads incurred) and all other expenses and damages connected with the Order and its cancellation.
12.3 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to KMC all of KMC's outstanding unpaid invoices and interest and, in respect of the Work supplied but for which no invoice has yet been submitted, KMC shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Materials and any deliverables relating to the Work which have not been fully paid for. If the Customer fails to do so, then KMC may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, 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
(d) conditions which expressly or by implication have effect after termination shall continue in full force and effect.
12.4 If the Customer shall become aware that any of the circumstances mentioned in condition 12.1 has or is likely to occur, then the Customer undertakes to inform KMC of the occurrence or likely occurrence of such event immediately.
13 Force Majeure
13.1 KMC shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or failure to perform, any of KMC's obligations in relation to the Contract if the delay or failure was due to any cause beyond KMC's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond KMC's reasonable control (though this shall not be considered to be an exhaustive list): Act of God, explosion, flood, strong winds, storms, tempest, fire or accident; war or threat of war, sabotage, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; or strikes, lock-outs or other industrial actions or trade disputes (whether involving Representatives of KMC or a third party).
14 Intellectual Property
14.1 The Customer acknowledges that all artwork, designs, drawings, plans, logos or other Intellectual Property whatsoever prepared or executed by KMC in relation to the Goods and/or Services in the performance of the Contract, or in or relating to KMC and/or KMC's business, belongs solely to KMC and shall remain the sole and exclusive property of KMC and may not be copied or given or used by the Customer or any third party without the express written consent of KMC. Nothing said or done by either party shall constitute a transfer of any such rights.
15.1 A party (the "Receiving Party") shall keep in strict confidence all proprietary information of a confidential nature that has been disclosed to the Receiving Party by the other party (the "Disclosing Party") or its Representatives, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its Representatives as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such Representatives are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This condition 15 shall survive termination of the Contract.
16.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its address set out in the Order or such other address as may be notified to the party in writing.
16.2 No waiver by KMC of any breach of the Contract by the Customer shall be considered a waiver of any subsequent breach of the same or any other provision.
16.3 If any of the provisions of this Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions in question shall not be affected thereby.
16.4 The Contract shall be governed by, and construed in accordance with, the laws of England and the parties hereby irrevocably submit to the exclusive jurisdiction of the English Courts.
16.5 The Company reserves the right to sub-contract the fulfilment of the Order or any part of it.
16.6 This Contract is between KMC and the Customer and is not assignable or transferable in any way by the Customer, without the prior written consent of KMC.
16.7 Failure or delay of a party to exercise or enforce any right under this Contract shall not be deemed to be a waiver of that right or any other right, nor operate to bar exercise or enforcement of it or any other right at any time or times thereafter.
16.8 Each party warrants to the other that:
(a) the Contract constitutes the entire agreement and understanding between the parties and supersedes any previous agreement between them relating to the matters contained in the Contract (which shall be deemed to have been terminated by mutual consent);
(b) in entering into the Contract, it does not rely on any statement, representation, assurance, promise or warranty of any person (whether a party to this Agreement or not) other than as expressly set out in the Contract. Neither party excludes its liability for fraud or fraudulent misrepresentation.
16.9 A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of the Contract.