Stencil Audio Ltd
Terms and conditions for the supply of goods
Effective from: 1.5.26. Version 1.0. These Conditions may be amended from time to time and the version in force at the date Stencil Audio accepts an Order will apply to that Order. Earlier versions are available on request.
These Conditions apply to sales of Goods to business customers only. Stencil Audio does not sell Goods to consumers via these Conditions. By placing an Order the Customer warrants that it is acting in the course of a business and not as a consumer (as defined in the Consumer Rights Act 2015).
The customer's attention is drawn in particular to clause 9.
Interpretation
Definitions:
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from [9.00 am to 5.00 pm] on any Business Day.
Approval Pack: the final item list, dimensions, materials, finish, design features, artwork, print files, colours and any special requirements for the Goods, to be submitted by Stencil Audio to the Customer for approval before production in accordance with clause 3.3.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.4.
Contract: the contract between Stencil Audio and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from Stencil Audio.
Customer Materials: all artwork, designs, logos, photographs, drawings, specifications and other materials supplied by or on behalf of the Customer in connection with the Goods.
Customer Information: the dimensions, measurements, equipment references, drawings, photographs, artwork, print files, rack and speaker sizes, protrusions, handles, cables, vents, wheels, access requirements, intended use and other information supplied by or on behalf of the Customer in connection with the Goods.
Delivery Location: has the meaning given in clause 4.1.
Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Losses: all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses).
Order: the Customer's order for the Goods, as set out [in the Customer's purchase order form OR overleaf OR in the Customer's written acceptance of Stencil Audio's quotation OR in the Customer's purchase order form, the Customer's written acceptance of Stencil Audio's quotation, or overleaf, as the case may be].
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Stencil Audio.
Stencil Audio IP: all intellectual property rights in and to the designs, patterns, templates, drawings, technical files, production methods, product concepts, prototypes, samples and any other materials created or developed by Stencil Audio (whether before, during or after the Contract) in connection with the Goods, as further described in clause 7.1.
Stencil Audio: Stencil Audio Ltd (registered in England and Wales with company number 16949324) whose registered office is at Unit 2 Sussex House Industrial Estate, Old Shoreham Road, Hove BN3 7DX.
Interpretation:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its successors and permitted assigns.
A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written excludes fax and email.
Basis of contract
These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. These Conditions are made available to the Customer on Stencil Audio's website at https://www.stencilaudio.com/terms and are incorporated by reference into every quotation issued by Stencil Audio and every Order placed by the Customer. The Customer is deemed to have read and accepted these Conditions on placing an Order.
The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer must ensure that the terms of the Order and any applicable Specification are complete and accurate.
The Order shall only be deemed to be accepted when Stencil Audio issues a written acceptance of the Order, at which point and on which date the Contract shall come into existence.
The Customer waives any right it might have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions. For the avoidance of doubt, any terms or conditions printed on or referenced in the Customer's purchase order, acknowledgement, acceptance or other document shall have no effect, even if signed or otherwise acknowledged by Stencil Audio, unless expressly agreed in writing by a director of Stencil Audio.
Any samples, drawings, descriptive matter or advertising produced by or on behalf of Stencil Audio and any descriptions or illustrations contained in Stencil Audio's catalogues or brochures (whether digital or otherwise) are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
A quotation for the Goods given by Stencil Audio is an invitation to treat only and shall not constitute an offer capable of acceptance by the Customer. A quotation shall be valid for a period of [20] Business Days from its date of issue, after which it shall lapse, and Stencil Audio may withdraw or amend a quotation at any time before it has issued written acceptance of the Order under clause 2.3.
Goods
The Goods are described in the Specification.
The Customer acknowledges that the Goods are custom-made to the Customer's requirements and that Stencil Audio's prices, lead times, materials, manufacture and delivery of the Goods are based on the Customer Information. The Customer warrants that all Customer Information is accurate, complete and not misleading. The Customer shall indemnify Stencil Audio against all Losses incurred by Stencil Audio arising out of or in connection with any inaccuracy, incompleteness or omission in the Customer Information, including the cost of any redesign, remake, adjustment, additional materials, additional labour, additional delivery and any delay to the production schedule.
Before production of the Goods begins, Stencil Audio shall submit to the Customer the final item list, dimensions, materials, finish, design features, artwork, print files, colours and any special requirements (Approval Pack). The Customer shall review and approve the Approval Pack in writing within the period notified by Stencil Audio. Production shall not commence until the Customer has approved the Approval Pack in writing, and any delay in approval shall extend the delivery date accordingly. Approval by the Customer constitutes acceptance of the Specification as suitable for manufacture and the Customer shall not be entitled to reject the Goods or claim that the Goods do not comply with clause 5.1 to the extent that the Goods conform to the approved Approval Pack.
If, after the Customer has approved the Approval Pack or after materials have been ordered, cut or printed or production has otherwise started, the Customer requests any change to the Specification, the Approval Pack or the Customer Information, or any change is required as a result of any inaccuracy, incompleteness or omission in the Customer Information, Stencil Audio may (at its option) accept or decline the change. Where Stencil Audio accepts a change, Stencil Audio shall be entitled to: (i) charge the Customer for all additional costs and expenses (including extra fabric and materials, re-cutting, re-printing, additional sewing time, design or pattern amendments, replacement components, and additional delivery or collection); and (ii) extend the delivery date by such period as Stencil Audio reasonably requires to accommodate the change. Stencil Audio shall notify the Customer of any additional cost and revised delivery date before carrying out the change.
The Customer acknowledges that the Goods are manufactured from fabrics and textile materials which can behave differently during cutting, sewing, stretching, finishing, handling and use, and that slight variations in fit, tension, drape, seam position, shrinkage, stretch, print placement, colour tone, texture and finish may occur. The Goods shall be deemed to comply with the warranty in clause 5.1 notwithstanding any such variation that is within reasonable manufacturing tolerances for custom textile products. Exact millimetre-perfect fitting is not warranted unless a detailed technical specification, sample and test fitting process has been agreed in writing as part of the Specification.
Stencil Audio reserves the right to amend the Specification if required by any applicable law or regulatory requirement, and shall notify the Customer in any such event.
Delivery
Stencil Audio shall deliver the Goods to the location set out in the Order or such other location as the parties may agree in writing (Delivery Location) at any time after Stencil Audio notifies the Customer that the Goods are ready.
Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Stencil Audio shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Stencil Audio with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If Stencil Audio fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Stencil Audio shall not be liable for any failure to deliver the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Stencil Audio with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If the Customer fails to accept delivery of the Goods when the Goods are ready for delivery, then, except where such failure is caused by a Force Majeure Event or Stencil Audio's failure to comply with its obligations under the Contract in respect of the Goods:
delivery of the Goods shall be deemed to have been completed at the date and time when Stencil Audio first attempted to deliver the Goods to the Delivery Location; and
Stencil Audio shall store the Goods until actual delivery takes place, and shall, without limiting its rights, be entitled to charge the Customer for all related costs and expenses (including insurance).
If [ten] Business Days after the date on which Stencil Audio notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, Stencil Audio may resell or otherwise dispose of part or all of the Goods [and, without limiting its rights and after deducting reasonable costs and expenses related to storage (including insurance) and selling, [account to the Customer for any excess over the price of the Goods or] charge the Customer for any shortfall below the price of the Goods].
Stencil Audio may deliver the Goods by instalments, which it shall invoice and which the Customer shall pay for separately. Each instalment shall constitute a separate contract. Any delay in delivery of or defect in an instalment shall not entitle the Customer to cancel any other instalment.
Quality
Stencil Audio warrants that on delivery the Goods shall conform in all material respects with the Specification.
Subject to clause 5.3, if:
the Customer gives notice in writing to Stencil Audio within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
Stencil Audio is given a reasonable opportunity of examining such Goods; and
the Customer (if asked to do so by Stencil Audio) returns such Goods to Stencil Audio's place of business at the Customer's cost,
Stencil Audio shall, at its option and to the extent that it agrees that such Goods do not comply with the warranty set out in clause 5.1, repair or replace the defective Goods, or refund the price of the defective Goods in full.
Stencil Audio shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:
the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
the defect arises because the Customer failed to follow Stencil Audio's oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
the defect arises as a result of Stencil Audio following any drawing, design or specification supplied by or on behalf of the Customer;
the Customer alters or repairs such Goods without the written consent of Stencil Audio;
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
Except as provided in this clause 5, Stencil Audio shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
These Conditions shall apply to any repaired or replacement Goods supplied by Stencil Audio.
Title and risk
The risk in the Goods shall pass to the Customer on completion of delivery.
Title to the Goods shall not pass to the Customer until Stencil Audio receives payment in full (in cash or cleared funds) for the Goods and all other goods that Stencil Audio has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
Until title to the Goods has passed to the Customer, the Customer shall:
store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Stencil Audio's property;
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
notify Stencil Audio immediately if it becomes subject to any of the events listed in clause 10.2(b) to clause 10.2(d); and
give Stencil Audio such information as Stencil Audio may reasonably require from time to time relating to:
the Goods; and
the Customer's ongoing financial position.
Intellectual property
The Stencil Audio IP shall remain the absolute property of Stencil Audio. The Customer acquires no rights in the Stencil Audio IP other than, on payment in full for the Goods, a non-exclusive, non-transferable, royalty-free licence to use the Stencil Audio IP to the extent necessary for the ordinary use of the Goods for their intended purpose.
The Customer shall not, and shall not permit any third party to, copy, reproduce, reverse engineer, modify for resale, or instruct any other supplier to replicate the Stencil Audio IP, the Goods or any part of them, without the prior written consent of Stencil Audio. Stencil Audio's name and logo are registered or unregistered trade marks of Stencil Audio and the Customer shall not use them except as expressly permitted by Stencil Audio in writing.
The Customer grants Stencil Audio a non-exclusive, royalty-free licence to use the Customer Materials solely for the purposes of performing the Contract. The Customer warrants that it owns or is licensed to use the Customer Materials and that Stencil Audio's use of the Customer Materials in accordance with the Contract will not infringe the rights of any third party.
The Customer shall indemnify Stencil Audio against all Losses incurred by Stencil Audio as a result of any claim that Stencil Audio's use of any Specification or Customer Materials infringes the intellectual property rights of any third party. This clause shall survive termination of the Contract.
Stencil Audio may photograph and document the Goods and the production process and may use such images for portfolio, website, social media, marketing and case study purposes, unless the Customer notifies Stencil Audio in writing before production begins that such use is not permitted.
Price and payment
The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Stencil Audio's published price list in force as at the date of delivery.
Stencil Audio may, by giving notice [in writing] to the Customer at any time [up to [5] Business Days] before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
any factor beyond Stencil Audio's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
any delay caused by any instructions of the Customer or failure of the Customer to give or delay by the Customer in giving Stencil Audio adequate or accurate information or instructions.
The price of the Goods:
excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Stencil Audio at the prevailing rate, subject to the receipt of a valid VAT invoice; and
excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
Stencil Audio may invoice the Customer for the Goods on or at any time after Stencil Audio’s acceptance of the Order.
The Customer shall pay Stencil Audio as follows:
a deposit of 50% of the price of the Goods (plus VAT, if applicable) is payable on acceptance of the Order by Stencil Audio, and Stencil Audio shall not be obliged to commence production of the Goods until the deposit has been received in cleared funds; and
the balance of the price of the Goods (plus VAT, if applicable) and any other amounts payable under the Contract (including any charges under clause 3.6) is payable in cleared funds before delivery, collection or release of the Goods, and Stencil Audio shall be entitled to withhold delivery until the balance has been received in cleared funds;
and the Customer shall pay all sums in full and in cleared funds to a bank account nominated in writing by Stencil Audio, and time for payment shall be of the essence of the Contract.
If the Customer fails to make a payment due to Stencil Audio under the Contract by the due date, then without limiting Stencil Audio's remedies under clause 10, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
Limitation of liability
The limits and exclusions in this clause 9 reflect the insurance cover Stencil Audio has been able to arrange. The Customer is responsible for making its own arrangements for the insurance of any excess liability.
References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.
Nothing in the Contract limits any liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation;
breach of the terms implied by section 12 of the Sale of Goods Act 1979;
any liability that cannot legally be limited; or
the Customer's payment obligations under the Contract.
Subject to clause 9.3, Stencil Audio's total liability to the Customer shall not exceed £[AMOUNT].
Subject to clause 9.3, the following types of loss are wholly excluded:
loss of profits (including loss of anticipated savings);
loss of sales or business;
loss of agreements or contracts;
loss of use or corruption of software, data or information;
loss of or damage to goodwill; and
indirect or consequential loss.
This clause 9 shall survive termination of the Contract.
Termination
The Customer acknowledges that the Goods are custom-made to the Customer's requirements. Accordingly, the Customer shall not be entitled to cancel the Order or terminate the Contract for convenience once Stencil Audio has accepted the Order. If the Customer purports to cancel the Order or terminate the Contract otherwise than in accordance with this clause, the Customer shall remain liable to pay the full price of the Goods, and any deposit and other amounts paid by the Customer shall be non-refundable. This clause does not affect the Customer's rights in respect of Goods that do not comply with the warranty in clause 5.1 (subject to clauses 3.5 and 3.6), or any other right the Customer has that cannot be excluded by law.
Without limiting its other rights or remedies, Stencil Audio may terminate the Contract with immediate effect by giving written notice to the Customer if:
the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of it being notified in writing to do so;
the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction];
the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
Without limiting its other rights or remedies, Stencil Audio may suspend supply of the Goods under the Contract or any other contract between the Customer and Stencil Audio if the Customer becomes subject to any of the events listed in clause 10.2(b) to clause 10.2(d), or Stencil Audio reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
Without limiting its other rights or remedies, Stencil Audio may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
On termination of the Contract for any reason the Customer shall immediately pay to Stencil Audio all of Stencil Audio's unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Stencil Audio shall submit an invoice, which the Customer shall pay immediately on receipt.
Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
Force majeure
Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for [NUMBER] days, the party not affected may terminate the Contract by giving not less than [NUMBER] days' written notice to the affected party.
General
Assignment and other dealings.
Stencil Audio may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Stencil Audio.
Confidentiality
Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2(b).
Each party may disclose the other party's confidential information:
to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12.2; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party may use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
Entire agreement.
The Contract constitutes the entire agreement between the parties.
Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver.
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under this clause 12.6, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Notices.
Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case)[; or]
sent by email to the following addresses (or an address substituted in writing by the party to be served):
Stencil Audio: david@stencilaudio.com.
Customer: [ADDRESS]
Any notice shall be deemed to have been received:
if delivered by hand, at the time the notice is left at the proper address; [or]
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting[; or]
if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Third party rights.
The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.