3. Delivery and Transport
3.1 Where the Goods are delivered by the Company’s own transport, or by a courier on behalf of the Company, the risk therein shall pass to the Customer immediately upon delivery of the Goods. In any such case, any delivery dates and/or times specified by the Company, although given in good faith, are intended to be an estimate only and, although the Company will use all reasonable endeavours to deliver the Goods in accordance with such delivery dates and/or times, the time for delivery of the Goods shall not be (or be deemed to be or be made by notice) of the essence or binding on the Company. If no delivery dates and/or times are specified by the Company, delivery of the Goods shall take place within a reasonable time. In all other cases, the Goods shall be deemed to have been delivered, and the risk therein to have passed to the Customer, immediately upon their transfer to the courier nominated by the Customer or, if the Customer is to collect the Goods from the Company, immediately upon the Company notifying the Customer that the Goods are available for collection. The Company shall not be liable to the Customer for any direct, indirect or consequential losses, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence) nor shall any such delay entitle the Customer to terminate or rescind the Contract.
3.2 If, for any reason, the Customer fails to collect or accept delivery of all or any of the Goods when they are ready for collection or delivery, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents or information (i) risk in the relevant Goods shall pass to the Customer (ii) the relevant Goods shall be deemed to have been delivered and (iii) the Company may store the relevant Goods until collection or delivery takes place, whereupon the Customer shall be liable for all storage, insurance and other costs.
3.3 If the Customer shall fail to supply the relevant copy master tapes, audio or data masters, recordings, images, artwork, designs and/or other materials required to be supplied by the Customer to the Company under the Contract, or to make payment in accordance with the Contract, then any agreed time(s)/date(s) for delivery of the Goods by the Company shall be extended by 3 days in addition to the period of the delay in such supply or payment by the Customer.
3.4 The quantity of Goods, as recorded by the Company upon despatch thereof to the Customer, shall be conclusive evidence of the quantity of Goods received by the Customer on delivery unless the Customer can provide conclusive evidence to the contrary. In any event, the Company shall not be liable to the Customer for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Customer gives written notice of the non-delivery to the Company within three (3) days of receipt by the Customer of the invoice in respect of such non-delivery (or purported delivery).
3.5 If any Goods are faulty or damaged or, where carried by the Company or on behalf of the Customer, are lost or damaged in transit, the Customer shall submit a detailed claim in writing to the Company with three (3) days of delivery describing the nature and extent of any such loss or damage to enable the Company to make any necessary claim against the manufacturer or carrier within the relevant time limit. If the Company shall fail to give such notice, the Goods shall be deemed in all respects to be in accordance with the Contract and the Customer shall be bound to accept and pay for the same accordingly. The Customer will, if necessary in the case of faulty or damaged Goods, arrange for and permit an inspection of the Goods in question and provide appropriate inspection facilities. The faulty or damaged Goods must not be removed from the original packaging by the Customer nor dealt with nor disposed of in any way by the Customer and they must be stored in a separate area of the Customer’s premises. Minor faults which do not affect the quality of sound production shall not be a cause of rejection, claim or complaint hereunder and, in respect of records in particular (but without limitation), a tolerance of 2mm warping or dishing is and shall be deemed to be acceptable. The Company will not be liable in respect of any faulty or damaged Goods if the Customer makes use of them or if the defect or damage has occurred due to a failure by the Customer to follow any of the Company’s instructions in relation to the Goods or if the Customer alters or repairs the relevant Goods (or tries to do so) without the written consent of the Company. If the Company accepts liability in respect of any faulty or damaged Goods, the Customer shall at its own cost return the faulty or damaged Goods to the Company and, if the Company so elects (at its sole discretion), the Customer shall be obliged to accept replacement Goods provided they are of an acceptable quality, manufactured within a reasonable period after such return and despatched to the Customer promptly following completion of manufacture.
3.6 Notwithstanding the foregoing, the Company hereby expressly excludes any liability to the Customer which it might otherwise have for loss or damage suffered or incurred by the Customer (including liability for consequential loss or damage including loss of profit) by reason of shortage of delivery or the quality or condition of the Goods delivered or their loss or damage in transit save insofar as and in the amount recovered by the Company in respect thereof from the relevant manufacturer and/or carrier. In such circumstances, the aggregate liability of the Company to the Customer (for negligence, breach of contract, misrepresentation or otherwise) shall in no event exceed the net price invoiced by the Company to the Customer in respect of the defective, damaged or undelivered Goods and at the Company’s discretion, it shall either (i) deliver or replace the relevant Goods within a reasonable time as provided above or (ii) issue a credit note against the invoice raised for the relevant Goods.
3.7 If the Company delivers to the Customer a quantity of Goods of up to ten per cent. (10%) more or less than the quantity originally ordered by the Customer, the Customer shall not be entitled to object or to reject the Goods (or any of them) by reason of the surplus or shortfall, as the case may be, and shall be obliged to pay for such goods at the pro rata Contract rate. The Company also reserves the right to deliver up to the Customer ten per cent (10%) more printed parts over the amount specified in the Contract so as to allow for wastage. Again, the Customer shall not be entitled to reject such excess printed parts and shall be obliged to pay the Company for the same. Where the Company is holding a balance surplus to the Contract of vinyl records, tapes/cassettes, CDs, CD-Rs, floppy CDs, DVDs, combined CD/DVDs, printed parts or other Goods, the Company will at the Customer’s expense carry out the Customer’s reasonable written instructions relating to such items. If the Customer’s written instructions are not received with one (1) month of the delivery of the final order pursuant to the Contract relating to the Goods in question, the Company will not accept any liability whatsoever to the Customer for any loss, damage or otherwise occurring to such items and reserves the right to deal with them as it sees fit. If any vinyl records, tapes/cassettes, CDs, CD-Rs, floppy CDs, DVDs, combined CD/DVDs, printed parts or other Goods are held by the company for over 6 months from the last delivery date of the last contract pertaining to that product, whether surplus to contract or not, the company is entitled to destroy or reuse the Goods in a manner to be determined by the company.
3.8 The Company may deliver the Goods by separate instalments, in which case each instalment shall constitute a separate Contract and no cancellation or termination of any one Contract or instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment. Each separate instalment shall be invoiced by the Company, and paid for by the Customer, in accordance with the provisions of the relevant Contract.
