CONDITIONS OF SALE OF

OLDHAM LIGHTING PROJECTS LIMITED AND OLDHAM LIGHTING PROJECTS INTERNATIONAL LIMITED

("the Seller")

 

1. Interpretation   1.1   In these conditions:   'BUYER'            means the person whose order for the Goods is accepted by me Seller ‘GOODS'           means the goods specified on the quotation/acknowledgement of order form overleaf (including any instalment of the goods or any parts for them) 'SERVICES’      means the services which the Seller is to perform specified on the quotation/acknowledgement of order form 'WRITING'          includes facsimile, transmission, e-mail or other and comparable means of communication.   2. Basis of the sale   2.1        The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer or any written order of the Buyer which is accepted by the Seller. These conditions shall govern the contract to the exclusion of any other terms and conditions and no variation shall be binding unless agreed in Writing between the authorised representative of the Buyer and the Seller.   2.2        Any advice or recommendation given by the Seller 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 Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.   3. Orders and specifications   3.1        No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller.   3.2        The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) and for giving the Seller any necessary information relating to the Goods and Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.   3.3        The quantity, quality and description of any specification for the Goods shall be those set out in the Sellers quotation (if accepted by the Buyer) or the acknowledgement of order form.   3.4        If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all lose, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification.   3.5        The Seller reserves the right to make any changes in the specification of the which are required to conform with any applicable statutory of EC requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.   3.6        No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing  of the Seller and on terms that the Buyer shall indemnify the Seller 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 Seller as a result of cancellation.   4. Price   4.1        The price of the Goods shall be the Seller’s quoted price or the price stated on the acknowledgement of order form ("the Price").   4.2        The Seller reserves the right, by giving notice to the Buyer at any time before delivery to increase the Price to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, dates, quantities or specification increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods or Services which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.   4.3        The Price shall be exclusive of any value added added tax and all costs and charges in relation to loading, unloading, carriage and insurance all of which amounts the Buyer shall be liable to pay to the Seller in addition unless otherwise agreed in Writing.   5. Terms of payment   5.1        The Seller shall be entitled to invoice the Buyer for the Price on or any time after delivery of the Goods or performance of the Services. If the Buyer wrongfully fails to take delivery of the Goods, the Seller shall be entitled to invoice the Buyer for the Price at any time after the Seller has notified the Buyer that the Goods are ready for collection or the Seller has tendered delivery of the Goods.   5.2        The Buyer shall pay the Price "within 30 days of the date of the Seller's invoice, and the Seller shall be entitled to recover the Price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the Price shall be of the essence.   5.3        The Buyer shall make all payments without any deduction whether by way of set-off, 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 Seller.   5.4        If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:  

5.4.1     cancel the contract or suspend any further deliveries to the Buyer;

 

5.4.2     appropriate any payment made by the Buyer to such of the Goods as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and

 

5.4.3     charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 2 per cent per annum above Barclay’s Bank base rate from time to time, until payment in full is made (a part month being treated as a full month for the purpose of calculating interest).

  6. Delivery   6.1        Unless otherwise agreed in Writing by the Seller, delivery of the Goods shall take place at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.   6.2        Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the contract. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.   6.3               Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver anyone or more of the instalments in accordance with these conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the contract as a whole as repudiated.   6.4        If the Seller fails to deliver the Good (or any instalment) for any reason other than any cause beyond the Seller's reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the Price.   6.5        If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:  

6.5.1     store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or

 

6.5.2          sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

  7. Risk and property   7.1        Risk of damage to or loss of the Goods shall pass to the Buyer:  

7.1.1     in the case of Goods to be delivered at the Seller premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or

 

7.1.2          in the case of Goods to be delivered otherwise than at the Seller's premises,  at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.

  7.2        Notwithstanding delivery and the passing of risk, ownership of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Price and all other sums which are or become due for payment to the Seller by the Buyer on any account.   7.3        Until ownership in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property, but the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business. 7.4        Until ownership in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith to enter upon any premise) of the Buyer or any third party where the Goods are stored and repossess the Goods.   7.5         The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.   8. Warranties and liability   8.1        Subject to the conditions set out below the Seller warrants that the Services and Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from the date of their initial use or 12 months from delivery, whichever is the first to expire.   8.2        The above warranty is given by the Seller subject to the following conditions:  

8.2.1.     the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer:

 

8.2.2     the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working condition. failure to follow the Seller's instructions (whether oral or in Writing). misuse or alteration or repair of the Goods without the Seiler’s approval;

 

8.2.3     the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the Price has not been paid by the due date for payment;

 

8.2.4     the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.

  8.3        Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.   8.4        Nothing in these conditions excludes or limits the liability of the Seller for death or personal injury caused by the Seller's negligence or fraudulent misrepresentation.   8.5        Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall whether or not delivery is refused by the Buyer) be notified to the Seller within 7 day's from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the contract.   8.6        Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these conditions, the Seller shall he entitled to replace the Goods (or the part in question) free of charge or, at the Seller's sole discretion, refund to the Buyer the Price (or a proportionate part of the Price), but the Seller shall have no further liability to the Buyer.   8.7        Except in respect of death or personal injury caused by the Seller’s negligence, the' Seller shall not be liable to the Buyer on any account for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims) for compensation whatsoever and the entire liability of the Seller under or in connection with the Contract shall not exceed the Price.   8.8        The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods or Services, if the delay or failure was due to any cause beyond the Seller's reasonable control including without limitation Act of God, flood, war or threat of war, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes or other industrial actions or trade disputes, difficulties in obtaining raw materials, labour, fuel, parts or machinery and power failure or breakdown in machinery.   9. Insolvency of Buyer   9.1        This contract shall be terminated forthwith if the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or an encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or the Buyer ceases, or threatens to cease, to carry on business; or the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.   9.2        Any termination under clause 10.1 shall discharge the parties from any liability for the further performance of the contract and in the case of a termination by the Seller it sh all be entitled to be paid a reasonable sum for any work carried out prior to such termination.   10 General   10.1      Any notice required or permitted to he given by either party to the other under these conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. All communications must be delivered by hand or by pre-paid first class post or facsimile transmission and shall be deemed to be received if sent by post 2 days after posting, if sent by facsimile at the time of transmission and if delivered by hand, on the day of delivery.   10.2      Failure or delay by the Seller in enforcing or partially enforcing any provision of the contract shall not be construed as a waiver of any of its rights under the contract.   10.3      No waiver by the Seller of any breach of the contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.   10.4      If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected.   10.5      The contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.