In these Terms & Conditions of Sale the following definitions and rules shall apply:- Company means Whitecroft Lighting Limited; Contract means together the Quotation, Order Acknowledgment and these Conditions of Sale; Goods mean any item of whatsoever nature which is sold or to be sold or supplied by the Company to the Purchaser including services; Purchaser means the person, firm or body corporate which buys or has agreed to purchase the Goods; Quotation means the Company’s priced offer to the Purchaser for Goods or services; Order Acknowledgement means the Company’s form detailing the order placed by the Purchaser with the Company.
b) Words in the singular include the plural and in the plural include the singular.
c) A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
a) These Terms & Conditions of Sale shall apply to and form part of every Contract entered into by the Company to the exclusion of all other terms and conditions (including any terms which the Purchaser purports to apply under any purchase order, confirmation of order, specification or other document).
b) Each purchase order or acceptance of a Quotation for Goods by the Purchaser from the Company shall be deemed to be an offer by the Purchaser to purchase Goods subject to these conditions of sale.
c) Any Quotation is given on the basis that no Contract shall come into existence until the Company despatches an Order Acknowledgement to the Purchaser.
The Contract includes only such Goods as are specified in the Order Acknowledgement accompanying these Term & Conditions of Sale.
a) The price payable for Goods shall, unless otherwise stated by the Company in writing, be the list price of the Company current at the date of despatch of the Goods (or instalment of the Goods if the Goods are to be delivered in instalments).
b) Unless otherwise expressly stated to be firm for a period, the Company’s prices are subject to variation to take account of variations in wages, materials and other costs. The Company accordingly reserves the right to adjust the price without notice by the amount of any increase or decrease in such costs after the price is quoted.
c) All prices are exclusive of any Value Added Tax and all costs or charges in relation to loading, unloading, carriage and insurance unless the same is otherwise stated elsewhere in the Contract, all of which amounts the Purchaser shall pay to the Company in addition to the price of the Goods.
a) Unless otherwise agreed in writing, payment is due immediately (in full and cleared funds) on delivery. The Company may agree (in its absolute discretion) not to enforce this provision for a period of 30 days from the date of delivery.
b) Where the Contract provides for delivery in instalments, each instalment shall be considered as a separate Contract for the p urpose of this Condition 5.
c) Time for payment shall be of the essence.
d) No payment shall be deemed to have been received until the Company has received cleared funds.
e) Without prejudice to any other rights it may have, the Company is entitled to charge interest at 2% above the current base rate of The National Westminster Bank Plc on overdue payments from the due date for payment accruing on a daily basis until payment is made, whether before or after any judgment. If the Company has exercised its discretion under Condition 5 (a) above, then it may (in its absolute discretion) waive its right to interest for the same period as referred to in Condition 5(a).
f) Additionally and without prejudice to its other rights, the Company shall be entitled to recover all direct expenses reasonably incurred by the Company in collecting or attempting to collect any outstanding payments from the Purchaser.
g) The Purchaser shall make all payments due under the Contract in full without deduction whether by way of set off, counterclaim, discount, abatement or otherwise unless the Purchaser has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Purchaser.
h) If the Purchaser fails to make any payment when due in accordance with these Terms & Conditions of Sale, the Company reserves the right in its absolute discretion and without prejudice to any of its other rights or remedies, to suspend all further deliveries until such payment has been made in full, or at the Company’s option, to cancel the balance of the order. In either case, the Company shall hold the Purchaser liable for costs incurred in respect of Goods which are in the course of manufacture or ready for despatch.
The Purchaser shall indemnify the Company in respect of any loss, cost or expense incurred by the Company as a result, directly or indirectly, of the Purchaser’s instructions or lack of instructions or through any failure or delay whatsoever in taking delivery or through any other act, neglect or fault on the part of the Purchaser, its servants, agents or employees.
Any Contract shall be subject to the Company being satisfied as to the Purchaser’s credit references and credit status from which the Company may (in its absolute discretion), having informed the Purchaser that the Goods are ready for despatch, refrain from delivering the Goods until such time as the Purchaser tenders payment for the Goods in cleared funds to the Company together with any outstanding amounts which may be due to the Company on any account held by the Purchaser or a person, firm or company associated with the Purchaser whatsoever.
Where it is necessary to despatch Goods in crates, cases, pallets, stillages or skids or other such packing, a charge may be made for this, and if a charge is made, the amount will be credited in full on the return, within one month, of such crates, skids, stillages and pallets or other such packaging in good condition carriage paid.
Unless otherwise expressly agreed between the parties, samples submitted by the Company or at the Purchaser’s request must be returned within ninety days of receipt and the Company shall be entitled to charge for them if they are not so returned.
a) Where the value of any order exceeds £500, the cost of delivery of the Goods to the Purchaser’s premises within Great Britain shall be included in the price of the Goods.
b) Unless agreed in writing by the Company, all times and dates of delivery of the Goods are given in good faith but are approximate only and shall not be of the essence.
c) All times and dates for delivery shall be calculated from the date of acceptance by the Company of the purchase order of the Purchaser, or from the date of receipt by the Company from the Purchaser of all information, instructions and drawings as shall be necessary to enable the Company to carry out the purchase order, whichever shall be the later.
d) Unless otherwise stated in writing, the Company shall be entitled to make partial deliveries of the Goods.
e) Where it has been expressly agreed in writing by the Company and the Purchaser that ImechE/IET model forms of General Contract MF/2 (Revision1) clause 24.1 applies the following amendments shall apply; “Plant” shall be replaced by “Goods”, “Contract Price” shall be replaced by “price”, “Contractor” shall be replaced by “Company” and “Contract Value” shall be replaced by “Contract Price”, the percentage and maximum percentage shall be 1% and 5% respectively and there shall be no appendix and the reference to sub clause 24.2 shall be deleted. If any such payment arises this shall be issued by the Company in the form of a credit note which the Purchaser can redeem against the Company’s invoice. For the avoidance of doubt, this Condition shall only apply in respect of delays that are solely the fault of the Company and not delays that result from the Purchaser’s delay to provide sufficient instructions to the Company or the Purchaser’s refusal to accept delivery from the Company or the occurrence of a Force Ma jeure event (as defined in Condition 23).
f) The Purchaser agrees that section 32(3) of the Sale of Goods Act 1979 shall not apply to Goods sent by the Company.
g) Subject to the other provisions of these Conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), 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 shall any delay entitle the Purchaser to terminate or rescind the Contract unless such delay exceeds 60 days.
a) When the price quoted includes delivery, the Company shall repair or replace free of charge, Goods damaged in transit or not delivered in accordance with the Order Acknowledgement, provided that the Company is given written notification of such damage or non-delivery within such time (being not more than 7 days), as will enable the Company to comply with the carrier’s conditions of carriage as affecting loss or damage in transit, or, where delivery is made by the Company’s own transport, within 7 days after receipt of the Goods.
b) Notwithstanding the above undertaking, the Company will only consider claims for alleged shortage if they are received within 7 working days of the receipt of Goods by the Purchaser, together with sufficient information to enable the Company properly to identify the shortage including the Order Acknowledgment number, case number and condition of the case.
c) Any liability for non delivery of the Goods or damage in transit 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.
d) If the Purchaser fails to give notice in accordance with Condition 11(a) the items delivered shall be deemed to be in all respects in accordance with the Contract and the Purchaser shall be bound to accept and pay for the same accordingly and all claims in respect of non delivery, loss, damage, defect or non compliance (save as set out in Condition 17) shall be wholly barred.
a) The Company shall be under no obligation to alter or vary any part of the Contract or any work connected therewith. Any alteration to or amendment or other variation of the specification, including any increase or decrease in the quantity of the Goods or any alteration to any drawing or to the quality performance, weight or measurements of any Goods or any alteration or variation of advised delivery schedules, shall, if requested by the Purchaser, be subject to the agreement of the Company with such alteration or addition to the price and to delivery dates or schedules as may be required by the Company and shall not be binding upon the Company unless and until accepted by the Company in writing.
b) In the event of any variation or suspension of the work at the Purchaser’s instructions or lack of instructions, the Company shall be entitled to adjust the contract price to reflect any additional costs incurred, and to adjust
delivery dates or schedules.
If the Company does not receive forwarding instructions sufficient to enable it to despatch the Goods within fourteen days after notification that the Goods are ready for delivery or that they have been tested under Condition 15, risk in the Goods shall pass to the Purchaser (including for loss or damage caused by the Company’s negligence) and the Purchaser shall thereupon take delivery or arrange for storage. If the Purchaser does not take delivery or arrange for storage, the Company shall be entitled to invoice the Purchaser and be paid for the Goods as though the Goods had been duly delivered in accordance with the Contract and the Company may arrange storage either at the Company’s own works or elsewhere on the Purchaser’s behalf and all charges incurre d by the Company as a result of such delay including storage and insurance, shall be payable by the Purchaser.
Any data, technical information or performance figures provided by the Company are based on tests performed under standard testing conditions at the Company’s premises. They are believed to be accurate but cannot be guaranteed under different conditions.
a) The Company’s products are carefully inspected andwhere practicable submitted to its standard tests at the Company’s works before despatch.
b) If tests other than those specified or tests in the presence of the Purchaser or its representatives are required, the Purchaser will be responsible for the costs of such additional tests. In the event of any delay on the Purchaser’s part in attending tests after the Purchaser has received seven days notice that the Company is ready to perform the tests, the tests will proceed in the Purchaser’s absence and the Purchaser accordingly hereby agrees to accept and pay for such tests as if they had been performed in the Purchaser’s presence.
a) All descriptions and illustrations and particulars of weights and dimensions issued by the Company in catalogues, price lists, advertising matter and forwarding specifications are by way of general description and approximate only and shall not form part of any contract or give rise to any liability on the part of the Company.
b) It is the policy of the Company to endeavour to develop and improve its products and accordingly the Company reserves the right to change all specifications without prior notification or public announcement pursuant to such policy, provided that nothing in this Condition shall oblige the Purchaser to accept Goods which do not reasonably comply with the Contract.
a) The Company will make good by repair, or at the Company’s option by supply of replacement Goods, defects which under proper storage and use appear in the Goods either on delivery or within the period of twelve calendar months from the date of delivery and which arise solely from faulty design (other than design made or furnished by the Purchaser), materials or workmanship.
b) The Company’s liability under this clause shall be in lieu of any warranty or condition implied by law as to the quality or fitness for any particular purpose of the Goods, and save as provided in this clause the Company shall not be under any liability, whether in contract, tort or otherwise, in respect of defects in goods delivered or for any injur y (other than personal injury caused by the Company’s negligence as defined in Section 1 of the Unfair Contract Terms Act 1977) damage or loss resulting from such defects or from any work done in connection therewith provided, however, that nothing in this clause shall operate to exclude any warranty or condition implied by law as to the quality of the Goods in the event that the Goods when sold by the Purchaser or when sold by any person or persons to whom the Purchaser may sell the Goods, shall become the subject of a consumer sale as defined in the Sale and Supply of Goods Act 1994, (except to the extent that any claim under such warranty or condition shall have arisen from any act or omission by the Purchaser or by any other persons selling the Goods by way of consumer sale).
c) The Warranty given in this Condition is subject to the follo wing provisions, namely:-
(i) that the Purchaser shall have followed all instructions issued by the Company in relation to the Goods;
(ii) that in the case of defects which would have been reasonably apparent to the Purchaser on reasonable examination of the Goods on delivery, the Purchaser shall notify the Company of the defects in writing within fourteen days of delivery;
(iii) that in the case of any other defects, the Purchaser shall notify the Company of the defects in writing within seven working days of the dat e when the defect becomes apparent;
(iv) that on discovery of any defect the Purchaser makes no further use of the Goods.
(v) that suitable access equipment is provided for any on-site repairs or maintenance, particularly where equipment is at high level or with difficult access.
d) Any replacement Goods shall be warranted on these Conditions for the unexpired portion of the twelve month period.
e) If the Company complies with this Condition 17 it shall have no further liability in relation to the defect. In particular it shall not be liable for any costs, claims, damages or expenses arising out of any tortuous act or omission or any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals or by reference to accrual or such costs, claims, damages or expenses on a time basis.
Subject to Condition 17(b) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price and the Company shall not be liable to the Purchaser for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
In no circumstances may goods supplied against a firm purchase order be returned without the Purchaser having first applied for and obtained the written consent of the Company. A handling charge may be deducted from any credit allowed by the Company where it is established that the returned Goods were not defective or the return was not du e to any error on the part of the Company.
a) Where the Company has any obligations under the Waste Electrical and Electronic Equipment Regulations 2006 (WEEE Regulations), these are passed onto the Purchaser pursuant to the provisions of section 9 of the WEEE Regulations.
b) In particular the Purchaser shall:-
(i) be responsible for financing the collection, treatment, recovery and environmentally sound disposal of all equipment subject to the WEEE Regulations arising or deriving from the Goods;
(ii) comply with all additional obligations placed upon the Company by the WEEE Regulations by virtue of the Purchaser accepting the responsibility set out in clause 19(b) of the WEEE Regulations;
(iii) provide the Company’s WEEE compliance scheme operator with such data, documents, information and other assistance as such scheme operator may from time t o time reasonably require to enable such operator to satisfy the obligations assumed by it as a result of the Company’s membership of the operator’s compliance scheme.
c) The Purchaser shall be responsible for all costs and expenses arising from and relating to its obligations in this Condition 20.
d) Further information in respect of the arrangements set out in this Condition 20 can be found at www.wastepack.co.uk by clicking on the “WEEE FINAL USERS” button and quoting the Company’s WEEE registration number (WEE/DB0061TU) where prompted.
The Purchaser will indemnify the Company against all damages, penalties, costs, losses and expenses suffered by the Company for which it may become liable in respect of the infringement of any intellectual property including (but without limitation) any patent, copyright, registered design, trade mark, trade name or know-how arising out of the Company’s manufacture of goods in accordance with any specification design drawings or other data supplied by the Purchaser or its servants or agents.
All drawings, descriptions and other information submitted by the Company together with the copyright therein shall remain the property of the Company.
The Company shall be entitled without liability on its part and without prejudice to its other rights, to terminate the contract or any unfulfilled part thereof, or at its option suspend or make partial deliveries or extend the time or times for delivery, if the manufacture of the Goods by the Company or the Company’s suppliers, or the delivery of the Goods or the performance by the Company of any of its obligations under the Contract is hindered or delayed whether directly or indirectly due to circumstances beyond the reasonable control of the Company including, without limitation, the Purchaser failing to furnish necessary instructions or information, war or other hostilities, acts of terrorism, civil commotion, fire, explosion, flood, epidemic, acts of God, government action or legislation, interruption of transport, strike, lock out or other form of industrial action (including, without limitation, labour disputes with the Company’s or any subcontractor’s employees), accidents or stoppages to works, shortage of labour, materials, equipment, fuel or power, breakdown of machinery, whether or not such cause exists at the date of the order provided that, if the event in question continues for a continuous period in excess of 180 days, the Purchaser shall be entitled to give notice in writing to the Company to terminate the Contract.
a) From the time of delivery, the Goods shall be at the Purchaser’s risk who shall be solely responsible for their custody and maintenance but, unless otherwise expressly agreed in writing, the Goods shall remain the Company’s property until all payments to be made by the Purchaser under the Contract and all other sums which are due or become due to the Company from the Purchaser on any account have been made in full (in cash or cleared funds) and unconditionally. Whilst the Company’s ownership continues the Purchaser shall keep the Goods labelled as belonging to the Company and separately identifiable from all other goods in its possession as bailee for the Company.
b) The Purchaser may only re-sell the Goods to the Purchaser’s customers in the ordinary course of the Purchaser’s business on a fiduciary basis for the Company. In the event of any resale by the Purchaser of the Goods the Company’s beneficial entitlement shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefore shall be assigned to the Company and until such assignment shall be held on trust in a separate identified account for the Company by the Purchaser and such proceeds shall not be mingled with other monies or paid into any overdrawn bank account and shall at all times be identifiable as the Company’s monies.
c) Without prejudice to the equitable rules as to tracing, in the event of failure to pay the price in accordance with the Contract or the insolvency or similar of the Purchaser as defined below in Condition 25 the Company shall have the power to enter any premises where the Goods are or may be stored to inspect or, where the Purchaser’s right to possession has terminated, to recover and re-sell the Goods, such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise.
d) Pending payment of the full purchase price of the Goods the Purchaser shall at all times keep the Goods comprehensively insured against loss or damage by accident, fire, theft and other risks usually covered by insurance in the type of business carried on by the Purchaser in an amount at least equal to the balance of the price for the same from time to time remaining outstanding. On request the Purchaser shall produce the policy of the insurance to the Company.
e) To enable the Company to recover the Goods in accordance with Condition 24(c) the Purchaser grants to the Company, its agents and employees an irrevocable licence at any time to enter upon any premises in the ownership, possession or control of the Purchaser to recover the Goods.
f) If the Contract is terminated by the Company in accordance with Condition 25, the Company’s rights contained in this Condition 24 shall remain in effect.
a) This Condition applies if: -
(i) the Purchaser becomes insolvent or makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or a firm) becomes bankrupt or (being a company) goes into
liquidation (otherwise than for the purposes of amalgamation or reconstruction) or: -
(ii) an encumbrance takes possession, or a receiver or administrative receiver is appointed, of any of the property or assets of t he Purchaser; or
(iii) the Purchaser ceases, or threatens to cease, to carry on business; or
(iv) the Company reasonably suspects that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly.
b) If this Clause applies, then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without liability to the Purchaser, and if the Goods have been delivered but not paid for, the price shall become immediately due and payable not withstanding any previous agreement or arrangement to the contrary.
If at any time any question, dispute or difference whatsoever shall arise between the Purchaser and the Company upon or in relation to or in connection with the Contract, either party may give the other notice in writing of the existence of such question, dispute or difference, and the same shall be referred to the arbitration of a person to be mutually agreed upon, or failing agreement within thirty days of receipt of such notice, an arbitrator shall be appointed by the President for the time being of the Institute of Electrical Engineers in the United Kingdom. A submission to arbitration under this Condition 26 shall be deemed to be a submission to a sole arbitrator pursuant to the Arbitration Act 1996 or any statutory modification or re-enactment thereof.
a) The Contract shall be governed by English Law and the parties submit to the non-exclusive jurisdiction of the English Courts.
b) If any provision of this Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent that such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and
effect.
c) The parties to the Contract do not intend that any term of the Contract shall be enforceable by the virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
d) The Contract constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between the Company and the Purchaser relating to the subject matter of this agreement save that nothing in this Condition 27(d) shall limit or exclude any liability for fraud or fraudulent misrepresentation.
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