Definitions
"BBCAL" means BBC Audiobooks Limited and all its relevant officers, servants and/or agents; "The Contract" means any contract between BBCAL and the Customer for the sale of Goods, incorporating these conditions. "The Contract Price" means the price as specified in the Contract. "The Customer" means the person(s), firm or company who purchases the Good from BBCAL and whose name appears on the invoice or delivery note "The Invoice". "The Goods" means any goods agreed in the Contract to be supplied to the Customer by BBCAL (including any part or parts of them).

Existence of Contract
The Contract shall prevail at all times to the exclusion of all other terms and conditions including any terms and conditions which the Customer may purport to apply and the provision of the Goods shall be deemed conclusive evidence of the Customer's acceptance of the Contract.

Good Faith/Outside Activities
The Customer shall act in good faith towards BBCAL and shall not bring BBCAL into disrepute nor, without the prior consent of BBCAL, make any reference to it in association with any advertising or other promotional material or write for publication or speak in public about BBCAL or its affairs.

Contract Price/Payment

• Unless otherwise agreed by BBCAL in writing the price for the Goods shall be the price set out on the Invoice.
• Unless otherwise agreed in writing the price for the Goods shall include any costs of packaging postage and delivery.
• The Customer shall pay to BBCAL the Contract price plus VAT (if applicable) within thirty (30) days of receipt of the Invoice. Time for payment shall be of the essence.
• The Customer shall make payments due under the Contract without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.
• If any sum due from the Customer to BBCAL under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Customer to BBCAL shall become due and payable immediately and BBCAL shall be entitled to
  1. cancel or suspend its performance of the Contract or any order including suspending deliveries of the Goods;
  2. require the Customer to pay for Goods prior to their despatch or collection from BBCAL's place of business; and
  3. charge the Customer
     
     1. interest calculated on a monthly basis on all overdue amounts (both before and after judgment) until actual payment at the rate of four per cent (4%) above the HSBC base rate in force, compound per month until payment is made in full;
     2. and the cost of obtaining judgment or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.

Hire or Loan of Goods
Where the contract consists of the hire or loan of Goods the Customer shall be responsible to BBCAL for any accidental physical loss of or damage to the Goods whilst in the charge and control of the Customer.

Delivery and Acceptance of Goods

• Unless otherwise agreed in writing by BBCAL delivery of the Goods shall take place at the business address of the Customer or the Customer's agent as stated on the Invoice or to a carrier designated by the Customer.
• Unless otherwise indicated on the Invoice or agreed in writing by BBCAL delivery in the UK or Eire shall be carriage and insurance paid; and carriage to an address not in the UK or Eire shall be at the cost and risk of the Customer.
• Any dates specified by BBCAL for delivery of the Goods are intended to be an estimate only and time for delivery shall not be of the essence. If no dates are specified, delivery will be within a reasonable time.
• Orders are accepted by BBCAL subject to availability of stock. BBCAL reserve the right to deliver the Goods in two or more instalments.
• If for any reason the Customer does not accept delivery of any of the Goods when they are ready for delivery or BBCAL is unable to deliver the goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations then the Goods will be deemed to have been delivered, risk passing to the Customer (including for loss or damage caused by BBCAL's negligence) and BBCAL may
  1. store the Goods until actual delivery whereupon the Customer will be liable for all related costs and expenses (including without limitation storage, re-delivery and insurance; or
  2. sell the Goods at the best price readily obtainable and (after deduction of all reasonable storage and selling expenses) charge the Customer for any shortfall below the Contract price.
• Where the address for delivery is in the UK or Eire, the Customer will be deemed to have accepted the Goods as being in accordance with the Contract unless the Customer notifies BBCAL in writing of any defect or other failure of the Goods to conform with the Contract within 7 days of the date of delivery of the Goods and claims for complete loss of consignment must be notified within 14 days of the date of the statement of account for the period in which the Invoice was raised, failing which the Customer shall not be entitled to reject the Goods and BBCAL shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
• Where the address for delivery is not in the UK or Eire the Customer will be deemed to have accepted the Goods as being in accordance with the Contract unless the Customer notifies BBCAL in writing of any defect or other failure of the Goods to conform with the Contract within 28 days from receipt of the consignment and claims for complete loss of consignment must be notified within 21 days of the date of the statement of account for the period in which the Invoice was raised, failing which the Customer shall not be entitled to reject the Goods and BBCAL shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
• Unless otherwise agreed in writing Goods, once delivered, may not be returned unless this return is agreed in accordance with BBCAL Returns Policy in force from time to time.

Passing of risk and legal title

• The Goods shall be at the risk of the Customer from the time of delivery.
• Full legal, beneficial an equitable title to and property in the Goods shall remain vested in BBCAL (even though they have been delivered and risk has passed to the Customer) until payment in full, in cash or cleared funds, for all the Goods has been received by the Company and all other money payable by the Customer to BBCAL on any other account or under the Contract or any other contract has been received by BBCAL.
• Until full legal, beneficial and equitable title to and property in the Goods passes to the Customer
  1. the Customer shall hold the Goods on a fiduciary basis as BBCAL's bailee;
  2. the Customer shall store the Goods at its premises in a proper manner in conditions which adequately protect and preserve the Goods separately from any other Goods (whether or not supplied by BBCAL) and ensure that they are clearly identifiable as belonging to BBCAL and shall insure them, without any charge to BBCAL.
  3. BBCAL may at any time, on demand and without prior notice, require the Customer to deliver the Goods up to BBCAL and BBCAL may repossess and resell the Goods if any of the events specified in Condition 10 occurs or if any sum due to BBCAL from the Customer under the Contract or on any other account or under any other contract is not paid when due;
  4. For the purposes of this Condition 7 BBCAL, its employees, agents and sub-contractors will be entitled to free and unrestricted access to any premises owned, occupied or controlled by the Customer and/or any other location where any of the Goods are situated at any time without prior notice;
  5. BBCAL shall be entitled to maintain an action against the Customer for the price of the Goods notwithstanding that legal, equitable and beneficial title to and property in the Gods has not passed to the Customer; and
  6. BBCAL herby authorises the Customer to use and/or sell the Goods in the normal course of the Customer's business and to pass good title in the Goods to its customers, if they are purchasers in good faith without notice of BBCAL's rights. This right shall automatically cease on the occurrence of any event set out in Condition 10 and/or if any sum owed to BBCAL by the Customer is not paid when due.

Intellectual Property Rights
Any intellectual property rights created by BBC/BBCAL in the course of the performance of the Contract or otherwise in the manufacture of the Goods shall remain BBC/BBCAL's property. Nothing in the Contract shall be deemed to have given the Customer a licence or any other right to use any of the intellectual property rights of BBC/BBCAL.

Confidentiality
Except where necessary on a "need to know" basis, the Customer shall keep confidential any information communicated in confidence or relating to the business of the BBC or BBCAL and which is obtained as a result of its relationship with BBCAL under the Contract.

Termination

• Where BBCAL considers that the Customer has failed to perform in part or whole its obligations and the failure is in the reasonable opinion of BBCAL capable of remedy BBCAL shall notify the Customer thereof and the Customer shall use its best endeavours to remedy the failure. If the failure is not remedied by the Customer to the satisfaction of BBCAL within the period specified by BBCAL, BBCAL may remedy the failure and recover the cost thereof from the Customer and/or terminate the Contract under sub-clause (2).
• Notwithstanding sub-clause (1) above, BBCAL may terminate the Contract with immediate effect in writing if -
  1. there has been a material breach by the Customer of its obligations under the Contract; or
  2. the Customer commits an act of bankruptcy, or makes any composition or arrangement with its creditors, or goes into liquidation whether voluntary or compulsory, or if any order is made or a resolution is passed for the winding up of the Customer, or if it ceases or prepares to cease trading, or if it suffers the appointment of a receiver or administrator of the whole or part of any of its assets; or
  3. there is a change of control of the Customer. For the purposes of this sub-clause (2), "control" means the ability to direct the affairs of the Customer whether by virtue of contract, ownership of shares or otherwise howsoever; or
  4. the continued performance thereof is prevented by reason of any event beyond the reasonable control of BBCAL or the Customer (any such occurrence being deemed an event of force majeure).
• Termination of the Contract howsoever arising shall be without prejudice to any right of action accruing or already accrued to either party at the date of the termination.
• Termination of the Contract howsoever arising shall not in itself give rise to a claim by the Customer for damages or otherwise beyond a claim for payment due under the Contract up to and including the date of termination.

Exclusion and Limitation of Liability

• BBCAL's total liability in contract, tort (including negligence and breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance of the Contract shall be limited to the Contract Price.
• BBCAL shall not be liable to the Customer for any loss of profit or other economic loss (direct or indirect), indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) or loss or damage (contractual, tortious, breach of statutory duty or otherwise) which arises out of or in connection with the Contract, or for any liability incurred by the Customer to any other person for any economic loss, claim for damages or awards howsoever arising from the Goods or otherwise.
• Nothing in these Conditions excludes or limits the liability of BBCAL for death or personal injury caused by BBCAL's negligence, or for fraudulent misrepresentation.

Notices
Any notice required to be given pursuant to the Contract shall be in writing and sent either by prepaid recorded delivery, registered post or telefacsimile transmission to BBCAL or the Customer at their place of business and any such notice shall be deemed to have been received by the addressee at the time of delivery.

Waiver
The failure of either party to exercise or enforce any right conferred upon it by the Contract shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time(s) thereafter. No waiver of any term or condition of the Contract shall operate as a waiver of another or constitute a continuing waiver.

Assignment/Sub-contracting
The Customer shall not assign, sub-licence, sub-contract, transfer or otherwise dispose of any of its rights or obligations under the Contract to any third party.

No Agency, Partnership or Joint Venture
Nothing in the Contract shall be deemed to constitute either party as the agent of the other or create a partnership or joint venture between the parties.

Variation
Any amendment or variation to the Contract shall be made by prior written agreement between the parties.

Severability
The unenforceability of any single provision of the Contract shall not affect any other provision thereof.

Whole Contract
The Contract and any appendices and any documents referred to therein constitutes the entire understanding between the parties with respect to the subject matter thereof and supersedes all prior agreements, negotiations and discussions between the parties relating thereto.

Law
The Contract shall be construed in accordance with the laws of England and Wales.

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