3.1 Where the Products are delivered by the Company’s own transport or carrier, or by a courier on behalf of the Company, the risk therein shall pass to the Customer immediately upon delivery of those Products. In the case of any Products and/or Services, any delivery dates and/or times specified by the Company, although given in good faith, are intended to be an estimates only and, although the Company will use reasonable endeavours to deliver the relevant Products and/or Services in accordance with such delivery dates and/or times, the dates and/or times for delivery of those Products and/or Services 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 relevant Products and/or Services shall take place within a reasonable time. In all other cases, the relevant Products 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 Products from the Company, immediately upon the Company notifying the Customer that the Products are available for collection. In the case of Services, they shall be deemed to have been delivered to the Customer when they have been performed in accordance with the relevant Contract. 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 any Products and/or Services (even if caused by the Company’s negligence) nor shall any such delay entitle the Customer to terminate or rescind the relevant Contract.
3.2 If, for any reason, the Customer fails to collect or accept delivery of all or any Products and/or Services when they are ready for collection or delivery (or, in the case of Services, when they have been performed), or the Company is unable to deliver the relevant Products and/or Services on time because the Customer has not provided appropriate instructions, documents or information then, as applicable (i) risk in the relevant Products shall pass to the Customer (ii) the relevant Products and/or Services shall be deemed to have been delivered and (iii) the Company may store the relevant Products until collection or delivery takes place, whereupon the Customer shall be liable for all storage, insurance and other costs. If, five (5) working days after the Company has notified the Customer that the relevant Products are ready for delivery, the Customer has not accepted or taken delivery of them, the Company can re-sell or otherwise dispose of part or all of the relevant Products and, after deducting its reasonable costs, account to the Customer for any excess over the price of the Products or (as applicable) charge the Customer for any shortfall below the price of the Products.
3.3 If the Customer fails 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 relevant Contract, or otherwise fails to provide the Customer with adequate delivery instructions and/or fails to make payment in accordance with that Contract, then any proposed or agreed time(s) and/or date(s) for delivery of the relevant Products and/or Services by the Company shall be extended by a minimum of three (3) working days in addition to the period of the delay in such supply or payment by the Customer.
3.4 The quantity of Products, as recorded by the Company upon despatch thereof to the Customer, shall be conclusive evidence of the quantity of Products 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 any Products and/or Services (even if caused by the Company’s negligence) unless the Customer gives written notice of the non-delivery to the Company within three (3) working days of receipt by the Customer of the invoice in respect of the relevant Products and/or Services.
3.5 If any Products 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) working 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 Customer fails to give such written notice to the Company, the Products shall be deemed in all respects to be (and to have been delivered) 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 Products, arrange for and permit an inspection of the Products in question and provide appropriate inspection facilities. The faulty or damaged Products 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 are part of the applicable production process and/or do not affect the overall quality, functionality and (as applicable) saleability of the relevant Products or Services shall not be a cause of rejection, claim or complaint by the Customer 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 Products 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 Products or if the Customer alters or repairs the relevant Products (or tries to do so) without the prior written consent of the Company. If the Company accepts liability in respect of any faulty or damaged Products, the Customer shall, at its own cost, return the faulty or damaged Products to the Company and, if the Company so elects (at its sole discretion), the Customer shall be obliged to accept replacement Products 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 any of the foregoing provisions, 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, without limitation, liability for any consequential loss or damage including, without limitation, loss of profit) by reason of shortage of delivery or the quality or condition of the Products delivered or their loss or damage in transit save insofar as any amount is 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 Products and at the Company’s discretion, it shall either (i) deliver or replace the relevant Products within a reasonable time as provided above or (ii) issue a credit note against the invoice raised for the relevant Products.
3.7 If the Company delivers to the Customer a quantity of Products 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 Products (or any of them) by reason of the surplus or shortfall, as the case may be, and the Customer shall be obliged to pay for such Products 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 at the pro rata Contract rate. Where the Company is holding a balance surplus to the Contract of any Products, the Company will at the Customer’s expense carry out the Customer’s reasonable written instructions relating to such surplus Products. If the Customer’s written instructions are not received with one (1) month of the delivery of the final order under the Contract relating to the Products in question, the Company (i) will not accept any liability whatsoever to the Customer for any loss, damage or otherwise occurring to such surplus Products and (ii) reserves the right to deal with such surplus Products as it sees fit (and at its sole discretion). If any vinyl records, tapes/cassettes, CDs, CDRs, DVDs combined CD & DVDs, printed parts or other Goods are held by the company for over 6 months whether surplus to contract or not, the company is entitled to destroy or re-use the goods in a manner to be determined by the company.
3.8 The Company may deliver any Products and/or Services by separate instalments, in which case each instalment shall constitute a separate Contract and no cancellation or termination of any single 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.