1. Interpretation
1.1 In these conditions:
“Buyer” means the person who accepts a quotation of the seller for the sale of the Goods or whose order for the Goods is accepted by the Seller. “Goods” means the goods (including any instalment of the goods or any parts of them) which the Seller is to supply in accordance with these Conditions and any goods supplied in substitution for or in replacement of or in addition to such goods. “Seller” means Harbeth Audio Limited a company Registered in England (Company No. 3727963). “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
“Contract” means the contract for the purchase and sale of the Goods.
“Writing” includes letter, email, fax and comparable means of communication and verifiable as having been received by the other party.
“Day” or “Days” means calendar days.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations that are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly, the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Orders and specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by an official Order Acknowledgement issued by the Seller.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer shall indemnify the Seller against all loss damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim of infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller’s specification, which does not materially affect their quality or performance.
3.6 From the date of the Seller’s issuance of the Order Acknowledgement, a 7-day cooling-off period will be allowed for the Buyer to review the Seller’s Order Acknowledgement during which period cancellations or reducing the order will be accepted by the Seller without penalty.
3.7 After that cooling-off period has elapsed, no order which has been accepted by the Seller and against which the Seller has issued an Order Acknowledgement may be cancelled by the Buyer except with the following penalties:
3.7.1 where the Buyer’s order is cancelled 31 or more days before the ex-works availability date shown on the Seller’s Order Acknowledgement – 25% of the total value of the order shall be payable to the Seller.
3.7.2 where the Buyer’s order is cancelled 15-31 days before the ex-works availability date shown on the Seller’s Order Acknowledgement – 50% of the total value of the order shall be payable to the Seller.
3.7.3 where the Buyer’s order is cancelled 8-14 days before the ex-works availability date shown on the Seller’s Order Acknowledgement – 75% of the total value of the order shall be payable to the Seller.
3.7.4 where the Buyer’s order is cancelled 7 days or less before the ex-works availability date shown on the Seller’s Order Acknowledgement – 100% of the total value of the order shall be payable to the Seller.
3.8 In the event that the Buyer requests to postpone production or despatch of an order in whole or part that the Supplier has already accepted with an Order Acknowledgement, the order may be postponed from the date indicated on the Order Acknowledgement with the following penalties:
3.8.1 where the Buyer’s order is postponed at its request by 28 days but not more than 60 days – no charge.
3.8.2 where the Buyer’s order is postponed at its request by 11-27 days – 25% of the total value of the order shall be payable to the Seller.
3.8.2 where the Buyer’s order is postponed at its request up to 10 days – 50% of the total value of the order shall be payable to the Seller.
4. Price of the Goods
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s official price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, the Seller’s export price list relating to the country of destination shall apply. All prices quoted are valid for 30 days only or such lesser period as shall be stated by the Seller on the face of the relevant quotation or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the reasonable control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture) or to any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller are exclusive of carriage charges, insurance and costs and charges in delivering the Goods to the Buyer.
4.4 The price is exclusive of any applicable Value Added Tax that the Buyer shall be additionally liable to pay to the Seller.
5. Terms of payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller shall be entitled to invoice the Buyer for the price of the Goods at any time before or after delivery of the Goods. The Seller shall be entitled to seek from the Buyer a financial deposit against any order and to use that sum to procure materials specifically for the manufacturing of that Buyer’s order.
5.2 All Invoices are promptly payable in full without deduction against a pro-forma invoice issued by the Seller unless credit facilities have been approved, in which case Invoices are payable in full by 30 calendar days following the date of the invoice or earlier if the credit facility has been exceeded or withdrawn. The Buyer shall pay all invoices without any deductions notwithstanding that delivery may not have taken place and the property in the Goods has not been passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.
5.3 If the Buyer fails to make payment within 7 calendar days of the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to.
5.3.1 move the Goods to an outside storage facility of his choice;
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer) and;
5.3.3 charge for storage of the Goods at the sum of £50 per day and an administrative sum of £100 for the movement of Goods to storage and £100 for the movement of goods back to the Seller’s premises at the end of storage;
5.4 If the Buyer fails to make payment within 15 calendar days of the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to.
5.4.1 cancel the contract and suspend production of any further deliveries to the Buyer;
5.4.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer) and;
5.4.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above Barclays Bank UK base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.5 In the event that the Seller shall cancel the contract under the provisions of Clause 5.4.1 above the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation. Without prejudice to the generality of the foregoing, at the option of the Seller, the Seller shall be entitled to require the Buyer to pay to the Seller by way of liquidated damages an amount equivalent to 50% of the invoice value of the contract so cancelled. In the event of the Seller so requiring, the Buyer shall pay such amount to the Seller (without any deduction) within seven days of receiving from the Seller written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Seller as a result of such cancellation.
6. Delivery
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises 24 hours after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place. The Goods shall be released only with the express approval of the Seller’s account department. The Buyer shall give the Seller at least 24 hours advance notice of collection and the goods shall be available only during office working hours.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. The Seller shall be entitled to make part delivery of the Goods at any time.
6.3 Where the Goods are delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods for any reason, other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or fails to give adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 store the Goods until actual delivery and charge the Buyer for the incurred costs of storage as under provisions of Clause 5.3 or
6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
6.6 It is under the obligation of the Buyer to provide the required export documentation to allow the ex-works goods to leave the UK with a zero rating. This MUST include one of the following:
Photocopy certificates of shipment will not be accepted as evidence of export, nor are photocopy bills of lading, sea waybills or air waybills (unless authenticated by the shipping or airline).
If the required documentation is not provided by the Buyer, the Seller will apply the retrospective tax invoice to the Sellers next order.
The Seller retains the right to apply a 20% holding deposit until the required documentation has been provided. The deposit can be refunded once the export documentation has been obtained.
7. Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods at the time when the Seller notifies the Buyer that the Goods are available for collection from the Seller’s premises or other agreed place
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivered of the Goods
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cleared funds payment in full of the price of the Goods and payment in full of all sums due from the Buyer to the Seller whether under the Contract or by virtue of any other liability of the Buyer to the Seller.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for such part of the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, as is equivalent to the invoice value of the Goods and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) become due and payable.
7.6 For the avoidance of doubt, nothing contained in this Clause 7 shall entitle the Buyer to return any of the Goods to the Seller save as expressly provided in these terms and conditions or as expressly agreed in writing between the Seller and the Buyer.
8. Warranties and liability
8.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification subject to such tolerances as are reasonable and as are normally accepted in the trade and will be free from defects in material and workmanship at the time of delivery for a period of 12 months from the date of manufacture:
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer:
8.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval.
8.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
8.2.4 the above warranty does not extend to Goods not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.2.5 the nature of the Goods are that cosmetic change in the appearance of the wood veneer are to be expected with the passing of time and exposure to sunlight and such are expressly excluded from the Seller’s warranty.
8.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 the statutory rights of the Buyer are not affected by these Conditions.
8.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 14 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered In accordance with the Contract.
8.6 Any claim by the Buyer which is based on short delivery or non-delivery shall be notified to the Seller in Writing (in the case of short delivery) within 7 days of delivery and (in the case of non-delivery) within 30 days of receipt by the Buyer of the Seller’s Invoice for the goods which the Buyer claims have not been delivered. If the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject any goods that have been delivered and the Seller shall have no liability for such short delivery or non-delivery.
8.7 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions the Seller shall be entitled to replace the Goods or (refund to the Buyer the price of the Goods) (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.8 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever(and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
8.9 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.9.1 Act of God, explosion, flood, tempest, fire or accident;
8.9.2 war or threat of war, sabotage, insurrection, civil disturbance, or requisition;
8.9.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.9.4 import or export regulations or embargoes, changes in cross-border trading procedures or any ambiguity in such;
8.9.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.9.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.9.7 power failure or breakdown in machinery.
8.10 Where Hardware is repaired or replaced under this guarantee such repaired or replaced Hardware is covered for the longer of the remainder of the one-year period or ninety days from the date of repair/replacement. Where Hardware is defective, we will provide all parts and labour necessary to repair the Hardware to proper operating order on the terms set out in this guarantee.
8.11 Warranty for graded/refurbished goods. All hardware is guaranteed against defects in materials and workmanship for one year from date of purchase (the date of invoice). However, this guarantee does not apply to cosmetic imperfection of the Graded/Refurbished Product such as scratches, marks, discolouration, etc., and no support is granted with regard to such cosmetic imperfection.
All graded/refurbished products are excluded from our extended warranty.
9. Insolvency of the Buyer
9.1 This clause applies if:
9.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
9.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
9.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
9.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2 If this clause applies, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered, but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10. Export terms
10.1 In these Conditions ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
10.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 10 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply, notwithstanding any other provisions of these conditions.
10.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and notifying to the Seller the requirements of any such legislation or regulations requiring action on the part of the Seller and for the payment of any duties, administrative paperwork, type approvals, certificates and similar in connection with the Goods.
10.4 Unless otherwise agreed in Writing between the Buyer and the Seller the Goods shall be made available ex-works and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of the Goods Act 1979.
10.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises during office hours before shipment giving the Seller 48 hours’ notice. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of damage during transit.
10.6 Payment of all amounts due to the Seller shall be made in such manner as shall be agreed between the Seller and the Buyer in Writing.
11. Data Protection Act 1998
11.1 The Seller may transfer information about the Buyer to our financiers, who:
11.2 may use, analyse and assess information about the Buyer, including the nature of transactions, and exchange such information with other members of their group of companies and others for credit or financial assessment, market research, statistical analysis, insurance claim, underwriting and training purposes and in making payments and servicing their agreement with us;
11.3 from time to time, may make searches of the Buyer’s records at credit reference agencies, details of their searches will be kept by such agencies but will not be seen by other organisations that may make searches;
11.4 may give information about the Buyer’s indebtedness to the following:
11.4.1 the Seller’s insurers for underwriting and claims purposes;
11.4.2 any guarantor or indemnifier to enable them to assess such obligations;
11.4.3 their bankers or any advisers acting on their behalf;
11.4.4 any business to which the Buyer’s indebtedness or our arrangements with our financiers may be transferred – to facilitate such transfer;
11.5 may monitor and/or record any phone calls the Buyer may have with them, for training and/or security purposes;
11.6 in the event that they transfer all or any of their rights and obligations under their agreement with the Seller to a third party, may transfer information about the Buyer to enable the third part to enforce their rights or comply with the obligations.
11.7 We will provide the Buyer with details of the Seller’s financiers on request, including details of the credit reference agencies and other third parties referred to above from whom they obtain and to whom they may give information about the Buyer.
12. Termination
12.1 Without prejudice to any other right or remedy it might have, Harbeth may terminate the Agreement in whole or in part before collection by written notice to the Supplier with immediate effect if the Supplier:
12.1.1 is in material breach of any obligation under the Agreement which is not capable of remedy;
12.1.2 repeatedly breaches any of the terms and conditions of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms and conditions of the Agreement;
12.1.3 the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
12.1.4 the Supplier (being an individual) is the subject of a bankruptcy petition order;
12.1.5 the Supplier suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business; or
12.1.6 the Supplier (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
13. General
13.1 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 registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party given the notice
13.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
13.4 The contract shall be governed by the laws of England.
Documentation. Your Product Order Agreement (the “Agreement”) is made up of the following documents:
Agreement to Purchase. You agree to purchase from Harbeth Audio Limited (“we”, “us”, or “our”) the described in Product Configuration (the “Vehicle”), subject to the terms and conditions of this Agreement. Any other terms and conditions related to your Product, including payment terms, are excluded. Your Product is priced and configured based on the veneer finish and options available at the time of order.
Purchase Price, Taxes and Official Fees. The purchase price of the Product is indicated in your product configuration. If you are purchasing a discounted Product (including demonstration and showroom Products), you agree that the Product may have been previously registered, is subject to fair wear and tear and that the purchase price of this discounted Product reflects a fair market value. This purchase price shall include local VAT, but may not include some local and regionally required taxes and fees. You are responsible for paying these local taxes and fees, and we will not provide assistance in or accept responsibility for any export procedures and/or reclaims of VAT.
Changes. Because your Product is manufactured to your order or already has been manufactured, changes to your Product configuration will be difficult for us to accommodate and may also substantially affect your delivery timing. While we will try to accommodate your request, you may be subject to any price adjustments made since your original Order Date. Any changes made by you to your Product Configuration will be reflected in a subsequent Product Configuration that will form part of this Agreement. As we are continuously improving our Products, we may make changes, including changes to the manufacturing technologies or materials applied to, or used for, any Product components to your Product to the extent those do not, at our reasonable discretion, materially affect your order. For any changes that would materially affect your order, including changes to the veneer finish or Product series specification of your Product that were shown at the “time your order was placed, we will notify you about this change prior to delivery of your Product, and you may cancel your order within 14 days of such notification, in which case you will receive a full refund of any Order Fee you paid.
Payment. You agree to make payment of your Product prior to delivery. If you paid an Order Fee, we will provide a credit to the final purchase price of your Product equivalent to the amount of the Order Fee you paid. This Order Fee and this Agreement are not made or entered into in anticipation of or pending any conditional sale contract.
Delivery. The estimated delivery date of your Product is only an estimate. Your actual delivery date is dependent on many factors, including your Product’s configuration, manufacturing availability and delivery location. We will notify you of when we expect your Product to be ready for delivery at the chosen delivery location provided at the point of purchase. The Ready Date may be at an earlier or later date than the estimated delivery date, and we reserve the right to change any of these dates, including as a result of any delays in transit, and we will notify you of any such change. You agree to schedule and take delivery of your Product within one week of the Ready Date or, if earlier, the last day of the then-current calendar quarter (in each case, the “Delivery Deadline”). You agree that time is of the essence, and if you do not respond to our notification or are unable to take delivery by the Delivery Deadline, you are no longer entitled to delivery of your Product, and your Product will be made available for sale to other customers. If you did not take delivery of your Product by the Delivery Deadline, you may, however, contact us to agree on changes to your Product.
Cancellation. Except as explicitly described in this Agreement or the Region-Specific Provisions, this Agreement is binding and you may not cancel. If you are a consumer, the cancellation provisions herein do not affect and shall not be interpreted as limiting your right to cancel this Agreement under local law. We may cancel this Agreement if you did not take delivery by the Delivery Deadline and also did not agree to changes to your Product Configuration so that we may deliver an alternative Product to you. We may also cancel this Agreement if you contact us to postpone your estimated delivery date and we cannot accommodate this change or if we ask you for the necessary information to process your order and/or to confirm your availability to take delivery of the Vehicle on the estimated delivery date and you fail to do so within 14 days after we asked. Finally, we may cancel your order if we determine that there was a pricing error or discontinue a product after the time you place your order or if we determine that you are acting in bad faith, in which case we also reserve the right to refuse any future orders for other Products you may place with us. In case of cancellation, you understand that you are no longer entitled to delivery of your Product.
Warranty. You agree to have received, read and understand the Harbeth New Product Limited Warranty or the Harbeth Used & Extended Used Product Limited Warranty, as applicable, from our website. If you are a consumer, this manufacturer’s warranty provides you with rights that are in addition to mandatory statutory warranty rights that you may have under applicable law to the extent those cannot be modified, affected or substituted. If you are not a consumer, the Harbeth New Product Limited Warranty or the Harbeth Used & Extended Used Product Limited Warranty is the only express warranty made in connection with your Product and replaces all warranties of any kind, whether express, implied, statutory or otherwise, which are disclaimed to the fullest extent permitted by law. Upon expiration of the applicable warranty period, you agree that any repairs or parts replacement shall be subject to separate terms and conditions, including payment by you ultimately at delivery of the Products.
Owner’s Manual. You agree to have received, read and understand the applicable Owner’s Manual of your Product from our website. The Owner’s Manual is also accessible within the Product packaging and explains how to set up and maintain your Harbeth loudspeakers. Harbeth reserves the right to make changes to the Owner’s Manual at any moment without notice.
Limitation of Liability. We are not liable for any incidental, special or consequential damages, which are explained to you in the Harbeth Warranty or the Harbeth Used & Extended Used Product Warranty, as applicable, arising out of this Agreement. Your sole and exclusive remedy under this Agreement will be limited to reimbursement of your Order Fee. This limitation of liability clause shall not apply in cases of willful misconduct, willful deception or gross negligence on our part or in cases of death or personal injury.
No Resellers. Harbeth and its affiliates sell Harbeth products directly to end-users and ask that your Product be registered locally in the country indicated in the footer of this Agreement before or immediately upon delivery. We may unilaterally cancel any order that we believe has been made with a view toward the resale of the Product (including if your Product has not been registered within seven days after delivery).
Governing Law; Integration; Assignment. The terms of this Agreement are governed by, and to be interpreted according to, the laws of the country indicated in the footer of this Agreement. Prior agreements, oral statements, negotiations, communications or representations about the Vehicle sold under this Agreement are superseded by this Agreement. Terms relating to the purchase not expressly contained herein are not binding, which means that we may deactivate features of your Product that are not included in your Product Configuration. We may assign this Agreement at our discretion to one of our affiliated entities. You may not assign this Agreement or any of your rights or obligations without our prior written consent; however, you may partly assign this Agreement if your Product is financed by a third party.
Dispute Settlement. To the fullest extent allowed by the law of your jurisdiction, we require that you first provide us with notification of any defects you have experienced within the applicable warranty period that cannot be resolved by reviewing your applicable Owner’s Manual before you can pursue any remedy under these laws. Please send your notification to your local Harbeth Store and/or the local Harbeth Service Center or the address indicated in the footer of this Agreement. We ask you to include the following information:
No attempts must be made to repair the Product prior to wrriten communication with Harbeth. Any modifications or repairs to the Product outside of Harbeth’s knowledge will invalidate the warranty and may pose a safety risk.
In the event any disputes, differences or controversies arise between you and us, we and you shall commit to exploring all possibilities for an amicable settlement. In case an amicable settlement is not reached, we and you shall submit any such dispute, difference or controversy to the appropriate venue as determined by the laws governing this Agreement.
Returns Policy. Unopened and unused loudspeakers and accessories purchased from the Harbeth website may be returned within 30 days of receiving the product. Opened and unused products have the same 30-day return window but are subject to a 15% restocking fee.
If you exercise this right to cancel, we will refund all payments received from you by using the same means of payment used when you made the payment. You are liable for, and therefore, we may deduct from the refund an amount reflecting the diminished value of the Product resulting from unnecessary handling by you in accordance with the law governing this Agreement if you have used the Vehicle beyond what is necessary to check the nature, characteristics and functioning of the Product. We will inspect the Product at the moment of return and will deduct from the refund the amount required to return the Product to the condition it was in at the point of delivery, including, without limitation:
You must process the return of the Harbeth Loudspeaker directly to Harbeth Audio Ltd. Without undue delay and in any event not later than 14 days from the day on which you communicate to us your decision to cancel this Agreement. The deadline is met if you return the Vehicle before the expiry of this 14-day period. You will have the bear the direct cost of returning the Product back to Harbeth Audio Ltd. We will give you a refund (after making a deduction where applicable) after the Product is returned to us.
Model Cancellation form (if sending an email):
To: Harbeth Audio Ltd., 3-4 Enterprise Park, Lewes Road, Lindfield, Haywards Heath, West Sussex, RH16 2LX, United Kingdom.
I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of the following Product.
Ordered on [*]/received on [*]
Name of consumer(s)
Address of consumer(s)
Signature of consumer(s) (only is this form is notified on email)
Order Number
Invoice Number
Date
[*] Delete as appropriate
© All Rights Reserved
Harbeth Audio Ltd., UK
2023
© All Rights Reserved
Harbeth Audio Ltd., UK
2023
© All Rights Reserved
Harbeth Audio Ltd., UK
2023
