1.1 In these Conditions the following words have the following meanings: “Buyer” the person(s), firm or company from whom an order to supply Goods is received by the Company; “Buyer Materials” any documents or other materials and any data or other information provided by the Buyer relating to the Goods; “Company” Seren Lighting Ltd (company number 11651367) Unit 13/14 Rosehayworth Business Park, Abertillery, NP31 1SP “Company Materials” any documents or other materials, and any data or other information provided by the Company relating to the Goods; “Conditions” the standard terms and conditions of sale as set out in this document together with any special terms and conditions agreed in writing between the Buyer and the Company. “Contract” any contract between the Company and the Buyer for the sale of Goods; “Goods” any goods (or parts thereof) to be supplied to the Buyer by the Company.
1.2 In these Conditions: references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced; references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context requires; and headings will not affect the construction of these Conditions.
2. APPLICATION OF TERMS
2.1 These Conditions apply to all the Company’s sales of Goods and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of the Company.
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 The Company’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company 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 which are not so confirmed.
2.4 Each order for Goods by the Buyer, from the Company, shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
2.5 Orders should be in writing, and should state the Buyer’s relevant order number. Verbal orders will be accepted but the Buyer will be responsible for any errors of description or quantity or date of delivery in Goods supplied there under.
2.6 No order placed by the Buyer shall be deemed to be accepted by the Company until the Company issues a written acknowledgement or (if earlier) the Company delivers the Goods to the Buyer.
2.7 The Buyer must ensure that the terms of any order or related document are complete and accurate.
2.8 Unless otherwise stated any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.9 Any advice or recommendation given by the Company, 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 Company is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
2.10 Any typographical, clerical or other error or admission in any company materials, quotation, price list, acceptance of offer, order acknowledgement, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.11 No order which has been accepted by the Company may be cancelled by the Buyer except with the agreement in writing of the Company and on terms that the Buyer shall indemnify the Company 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 Company as a result of the cancellation.
3.1 All descriptive matter and advertising issued by the Company and any descriptions or illustrations contained in the Company materials are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract.
3.2 The Buyer should always ensure that the Goods ordered are suitable for the intended purpose before commencing installation, bulk production or investment in tooling.
3.3 The Company reserves the right to make any changes to Goods which are required to conform with any applicable safety or other statutory requirements.
4.1 Unless otherwise agreed in writing by the Company delivery of the Goods shall take place at the address detailed in the Buyer’s order.
4.2 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice.
4.3 Subject to the other provisions of these Conditions the Company will not be liable for any loss (including loss of profit), 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 will any delay entitle the Buyer to terminate the Contract.
4.4 If for any reason the Buyer will not accept delivery of any of the Goods, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.4.1risk in the Goods will pass to the Buyer (including loss or damage caused by negligence);
4.4.2 the Goods will be deemed to have been delivered; and
4.4.3 the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance).
4.5 The Buyer will provide at its expense at the delivery point adequate and appropriate equipment and manual labour for loading the Goods.
4.6 The Company may deliver the Goods by instalments and each instalment shall be treated as a separate Contract so that failure to deliver or defect in one or more instalment shall not entitle the Buyer to reject the other instalments.
4.7 The goods may be delivered by the Company in advance of the quoted date of delivery upon giving reasonable notice to the Buyer.
5.1 The quantity of any consignment of Goods as recorded by the Company upon dispatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer.
5.2 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 In the case of Goods to be collected by the Buyer the Goods are at the risk of the Buyer when the Company notifies the Buyer that the Goods are available for collection.
6.3 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it from the Buyer on any account.
6.4 Until ownership of the Goods has passed to the Buyer, the Buyer must: hold the Goods on a fiduciary basis as the Company’s bailee; store the Goods (at no cost to the Company) separately from all other goods in such a way that they remain readily identifiable as the Company’s property; not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. (On request the Buyer shall produce the policy of insurance to the Company and hold the proceeds of the insurance referred to in on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.)
6.5 The Buyer may resell the Goods before ownership has passed to it on the following conditions:
6.5.1 any sale shall be affected in the ordinary course of the Buyer’s business at full market value; and
6.5.2 any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.6 If the Buyer resells any of the Goods on a retail basis it will be responsible for complying with all applicable laws and for the provision of proper labels and instructions as required by the Department of Trade and Industry and/or any other authority for the time being empowered to make any requirements as to the sale or installation of such Goods.
6.7 The Buyer’s right to possession of the Goods shall terminate immediately if:
6.7.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any relief for insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation except a solvent voluntary liquidation for the purpose of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
6.7.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
6.7.3 the Buyer encumbers or in any way charges any of the Goods.
6.8 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.9 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
7.1 Unless otherwise agreed by the Company in writing (and except in cases of obvious error) the price for the Goods shall be the price set out in the Company’s price list as in force at the date of invoice.
7.2 Except as otherwise stated under the terms of any quotation or agreed in writing by the Company all prices are ex-works and the Buyer is liable to pay the Company’s transport charge.
7.3 Where the Company and the Buyer agree a discount in respect of the Company’s price list any such discount will only apply where confirmed by the Company in writing.
7.4 The Company reserves the right to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company, any change in delivery dates or quantities specified by the Buyer or any delay caused by the instructions of the Buyer or failure of the Buyer to provide adequate information or instructions.
7.5 The price for the Goods shall be exclusive of any value added tax which shall be paid at the rate and in the manner for the time being provided by law, and any other applicable duties, imposts and taxes.
8.1 The price for Goods is due within 30 days of the end of the month in which it is invoiced, unless payment is on a pro-forma basis when it is required prior to delivery. Time for payment shall be of the essence.
8.2 No payment shall be deemed to have been received until the Company has received cleared funds.
8.3 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
8.4 The Buyer shall make all payments due under the Contract without any deduction whether by way of setoff, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.5 If the Buyer fails to pay the Company any sum due pursuant to the Contract then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
8.5.1 charge the buyer interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment;
8.5.2 cancel the contract or suspend any further deliveries to the Buyer; and
8.5.3 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 Company) as the Company may think fit (notwithstanding any purported appropriation by the Buyer).
9. WARRANTIES AND LIABILITY
9.1 The Company warrants that (subject to the other provisions of these Conditions) upon delivery, the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
9.2 Subject as expressly provided in these Conditions all warranties; conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.3 The Company shall not be liable for a breach of the warranty in Condition 9.1 unless the Buyer gives written notice to the Company within the following time limits:
9.3.1 partial loss or damage to the goods, within 7 days of delivery
9.3.2 non-delivery of the Goods in the United Kingdom, within 7 days of the date of delivery;
9.3.3 non-delivery of the Goods outside the United Kingdom, within 14 days of the date of delivery;
9.3.4 defect in the quality or condition of the Goods, within 7 days of delivery or, where such defect or failure was not apparent on reasonable inspection, within 7 days of discovery of such defect or failure. If the defect is as a result of damage in transit written notice must also be made to the carrier within 7 days;
9.4 The Company shall not be liable for a breach of the warranty in Condition 9.1 if the Buyer makes any further use of such Goods after giving such notice; or the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or the Buyer alters or repairs such Goods without the written consent of the Company.
9.5 Subject to Conditions 9.2 and 9.3, if any of the Goods do not conform with the warranty in Condition 9.1 the Company shall be entitled at its option to repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Buyer's expense, return the Goods or the part of such Goods which is defective to the Company.
9.6 If the Company complies with Condition 9.5 it shall have no further liability for a breach of the warranty in Condition 9.1 in respect of such Goods.
9.7 Where a defect is discovered the Buyer will inform the Company immediately notwithstanding the expiry of the warranty period in Condition 9.2.
10. LIMITATION OF LIABILITY (The Buyer’s attention is drawn to the provisions of this Condition)
10.1 Subject to Condition 9, the following provisions of this Condition 10 set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and subcontractors) in respect of any breach of these Conditions and any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
10.2 All terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or for fraudulent misrepresentation.
10.4 Subject to Conditions 10.2 and 10.3:
10.4.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price paid by the Buyer; and
10.4.2 the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation (howsoever caused) which arise out of or in connection with the Goods.
10.5 The Buyer warrants that any installation of the Goods will be performed by properly trained staff and agrees that it shall be solely responsible for any use to which the Goods are put after delivery.
11. INTELLECTUAL PROPERTY
11.1 The property and any copyright or other intellectual property rights in any Buyer Materials shall belong to the Buyer and any Company Materials shall, unless otherwise agreed in writing between the Buyer and the Company, belong to the Company, subject only to a licence in favour of the Buyer to use the Company Materials for the purposes of receiving the Goods.
12. FORCE MAJEURE
12.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of
the Company including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 If any provision or part of a provision of the Contract is found by any court or other body of competent jurisdiction to be illegal, invalid, void, voidable, unenforceable or unreasonable it shall be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect. 13.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.4 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.5 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company. The Company may assign the Contract or any part of it to any person, firm or company.
13.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.