1.1 In these Conditions the following definitions apply:-
“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
“Conditions” means the terms and conditions set out in this document (as amended from time to time in accordance with paragraph 11.6 below);
“Contract” means the contract between the Supplier and the Customer for the sale and purchase of Products in accordance with these Conditions;
“Customer” means the person or firm who purchases the Products from the Supplier;
“Force Majeure Event” has the meaning give in paragraph 10 below;
“Order” means in the Customer’s purchase order form or the Customer’s written acceptance of the Supplier’s quotation, as the case may be;
“Products” means the goods/products (or any part of them) as set out in the Order;
“Specification” means any specification for the Products including any related plans and drawings, that is agreed in writing by the Customer and the Supplier; and
“Supplier” means Truelux Group (company number: 06855892) whose registered office is at Sony Technology centre, Pencoed, Cardiff, Wales, CF35 5HZ
1.2 In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns.
1.2.3 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re- enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes faxes and e-mails.
2 Basis of Contract
2.1 These Conditions apply to a Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase Products in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable specification are complete and accurate.
2.3 The Customer shall ensure that a minimum order value of £300 is ordered pursuant to any one Order (“Minimum Quantity”). Where an Order is below the Minimum Quantity, the Supplier shall have no obligation to accept an Order and to the extent it does the Customer may be required to pay additional costs/fees on top of any price specified for a Product, as notified to the Customer.
2.4 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract or have any contractual force.
2.7 A quotation for the Products given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3.1 The Products are described in the Supplier’s catalogue as modified by any applicable Specification.
3.2 The Supplier reserves the right to amend the specification of the Products if required by any applicable statutory or regulatory requirements.
4 Shipment & Delivery
4.1 The Supplier shall use its reasonable endeavours to ensure that each delivery of the Products is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Products (including the code number of the Products, where applicable), and, if the Products are being delivered by instalments, the outstanding balance of Products remaining to be delivered.
4.2 The Supplier shall deliver the Products to the location set out in the Order (provided it is in the United Kingdom), or such other location as the parties may agree in writing (“Delivery Location”), at any time after the Supplier notified the Customer that the Products are ready (and time shall NOT be of the essence in respect of the time of such delivery).
4.3 Delivery of the Products shall be completed on the Products’ arrival at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.5 If the Supplier fails to deliver the Products, its liability shall be limited to the reasonable costs and expenses incurred by the Customer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products. The Supplier shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.6 If the Customer fails to accept delivery of the Products within three Business Days of the Supplier notifying the Customer that the Products are ready or attempting to deliver the Products, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
4.6.1 delivery of the Products shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Products were ready; and
4.6.2 the Supplier shall store the Products until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 10 Business Days after the day on which the Supplier notified the Customer that the Products were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Products.
4.8 The Customer shall not be entitled to reject the Products if the Supplier delivers up to and including 5% more or less than the quantity of Products ordered.
4.9 The Supplier may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.10 Upon Delivery, the Customer will be responsible for and will bear the entire risk of loss or damage to the particular Products.
5 Supplier Warranty
5.1 The Supplier warrants that on delivery the Product shall:
5.1.1 conform in all material respects with their description; and
5.1.2 be free from material defects in design, material and workmanship.
5.2 Subject to paragraph 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier within 15 Business Days from delivery of that Product that a Product does not comply with the warranty set out in paragraph 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Product; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Product to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the defective Product, or refund the price of the defective Product in full. For the avoidance of doubt, the Product cannot be returned to the Supplier without prior agreement from an authorised representative of the Supplier.
5.3 The Supplier will use its reasonable endeavours to pass on to the Customer the benefit of any guarantee or warranty which may have been given to the Supplier by its supplier or manufacturer. Provided that the Supplier shall have no obligation to incur any costs or expenses in enforcing any such rights and the Customer will indemnify the Supplier against all costs, claims and expenses incurred in connection with the enforcement of any such guarantees or warranties.
5.4 The Supplier shall not be liable for Products’ failure to comply with the warranty set out in paragraph 5.1 in any of the following events:
5.4.1 the Customer makes any further use of such Products after giving notice in accordance with paragraph 5.2;
5.4.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice regarding the same;
5.4.3 the Customer alters or repairs such Products without the written consent of the Supplier;
5.4.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.4.5 the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5 Except as provided in this paragraph 5, the Supplier shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in paragraph 5.1.
5.6 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute (including sections 13 to 15 of the Sale of Goods Act 1979) or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.7 These Conditions shall apply to any repaired or replacement Products supplied by the Supplier.
6 Title and Risk
6.1 The risk in the Products shall pass to the Customer on completion of delivery.
6.2 Title to the Products shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
6.2.1 the Products; and
6.2.2 any other goods or services that the Supplier has supplied to the Customer.
6.3 Until title to the Products has passed to the Customer, the Customer shall:
6.3.1 hold the Products on a fiduciary basis as the Supplier’s bailee;
6.3.2 store the Products separately from all other Products held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
6.3.4 maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.5 notify the Supplier immediately if it becomes subject to any of the events listed in paragraph 8.2 below; and
6.3.6 give the Supplier such information relating to the Products as the Supplier may require from time to time,
but the Customer may resell or use the Products in the ordinary course of its business.
6.4 If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in paragraph 8.2 below, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Products and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
7 Price and Payment
7.1 The price of the Products shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
7.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
7.2.1 any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s) or quantities or types of Products ordered; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Products is exclusive of the costs and charges of packaging, insurance and transport of the Products (from the Supplier to the Customer), which shall be invoiced to the Customer.
7.4 Unless otherwise specifically stated the price of the Products is exclusive of amounts in respect of value added tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Products.
7.5 The Supplier may invoice the Customer for the Products before, on or at any time after the completion of delivery.
7.6 Unless otherwise agreed in writing by the Supplier, the Customer shall pay the invoice in full and in cleared funds within 30 Business Days of the Invoice Date Month End (as defined below). Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence. For the purposes of this paragraph “Invoice Date Month End” shall mean the last calendar day in the month that the invoice is dated.
7.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (“due date”), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank PLC’s base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8 Customer’s Insolvency or Incapacity
8.1 If the Customer becomes subject to any of the events listed in paragraph 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Products delivered to the Customer shall become immediately due.
8.2 For the purposes of paragraph 8.1, the relevant events are:
8.2.1 the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
8.2.2 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer];
8.2.3 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
8.2.4 (being an individual) the Customer is the subject of a bankruptcy petition or order;
8.2.5 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 10 Business Days;
8.2.6 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
8.2.7 (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
8.2.8 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
8.2.9 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in paragraphs 8.2.1 to 8.2.8 (inclusive);
8.2.10 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
8.2.11 the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
8.2.12 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Paragraphs which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9 Limitation of Liability
9.1 Subject to paragraph 9.3, the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract.
9.2 Subject to paragraph 9.3, the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 75% of the price of the Products supplied pursuant to that Contract.
9.3 Nothing in these Conditions shall limit or exclude the Supplier’s liability for any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
10 Force Majeure
The Supplier shall not be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond the Supplier’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11.1 Assignment and subcontracting
11.1.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.1.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
11.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this paragraph, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e- mail.
11.2.2 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this paragraph, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e- mail.The provisions of this paragraph shall not apply to the service of any proceedings or other documents in any legal action.
11.3.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
11.3.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
11.5 Third party rights A person who is not a party to the Contract shall not have any rights under or in connection with it.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
11.7 Governing law and jurisdiction.
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales