TERMS AND CONDITIONS OF SALE
The buyer’s attention is drawn in particular to the provisions of clause 9.
1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Addlux means Addlux Limited, whose registered address is 31 High Street, Haverhill, England, CB9 8AD;
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;
Contract means the contract between Addlux and the Buyer for the sale and purchase of the Products in accordance with these Conditions;
Buyer means the person or firm who purchases the Products from Addlux;
Force Majeure Event means has the meaning given in clause 10;
Products means the products (or any part of them) set out in the Order;
Order means the Buyer’s order for the Products, which shall be by way of the Buyer’s written acceptance of a
quotation provided to it by Addlux;
Specification means any specification for the Products, including any related plans and drawings, that is agreed in
writing (including by email) by the Buyer and Addlux.
1.2 Interpretation. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal
personality) and a reference to a party includes its personal representatives, successors or permitted assigns.
(b) A reference to a statute or statutory provision is a reference to such statute or provision as amended or reenacted. A reference to a statute or statutory provision includes any subordinate legislation made under that
statute or statutory provision, as amended or re-enacted.
(c) A reference to writing or written does not include by e-mail unless otherwise stated.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall
be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer 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 Buyer to purchase the Products in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Buyer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when Addlux issues a written acceptance of the Order, at which point the Contract shall come into existence. Each Order, once so accepted, is a separate Contract. Addlux shall be under no obligation to accept any Order.
2.4 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Addlux which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by Addlux and any descriptions or illustrations contained in material supplied by Addlux’s 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.
2.6 A quotation for the Products given by Addlux shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
3. PRODUCTS
3.1 The Products are described in the Specification.
3.2 To the extent that the Products are to be manufactured in accordance with a specification supplied by the Buyer, the Buyer shall indemnify Addlux against all liabilities, costs, expenses, damages and losses (including all reasonable legal costs and expenses) suffered or incurred by Addlux in connection with any claim made against Addlux for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Addlux’s use of that specification. This clause 3.2 shall survive termination of the Contract.
3.3 Addlux reserves the right to amend the Specification if required by any applicable statutory or regulatory
requirements.
4. DELIVERY
4.1 Addlux shall deliver the Products to the location set out in the Order or such other location as the parties may agree (Delivery Location) and the delivery of the Products shall be at any time after Addlux notifies the Buyer that the Products are ready.
4.2 Delivery of the Products shall be completed on the completion of the unloading of the Products at the Delivery
Location.
4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Addlux shall not be liable for any delay or failure in delivery of the Products that is caused by a Force Majeure Event or the Buyer’s failure to provide Addlux with adequate delivery instructions.
4.4 If Addlux fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Products.
4.5 If the Buyer fails to accept delivery of the Products within three Business Days of Addlux notifying the Buyer that the
Products are ready, then, except where such failure or delay is caused by a Force Majeure Event or Addlux’s failure to comply with its obligations under the Contract:
(a) 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 Addlux notified the Buyer that the Products were ready; and
(b) Addlux shall store the Products until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
4.6 If 10 Business Days after the day on which Addlux notified the Buyer that the Products were ready for delivery the Buyer has not accepted delivery of them, Addlux may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, charge the Buyer for any shortfall below the price of the
Products.
4.7 Addlux 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 Buyer to cancel any other instalment.
5. QUALITY
5.1 Addlux warrants that:
(a) in respect of the Products, on delivery and for a period of 12 months from the date of delivery;
(b) in respect of any component which forms part of the Products and which Addlux notifies the Buyer pursuant to clause 5.7 is subject to an alternative warranty, on delivery and for such period as Addlux so notifies from the date of delivery; and
(c) in respect of any installation work, on the date of installation and for a period of 6 months from the date of installation,
(each a warranty period), such Products and/or relevant part thereof and/or installation works (in each case, as applicable) shall conform in all material respects with the relevant Specification (or part thereof) and be free from material defects in design, material and workmanship.
5.2 Subject to clause 5.3, if:
(a) the Buyer gives notice in writing to Addlux during the relevant warranty period within a reasonable time of
discovery that some or all of such Products and/or relevant part thereof and or the installation works (in each
case, as applicable) do not comply with the warranty set out in clause 5.1;
(b) Addlux is given a reasonable opportunity of examining such Products and/or relevant part thereof and/or the installation works (in each case, as applicable); and
(c) the Buyer (if asked to do so by Addlux) returns such Products and/or relevant part thereof (as applicable) in the
condition in which it was supplied to Addlux’s place of business at the Buyer’s cost,
Addlux shall have a reasonable opportunity to examine the returned Product or relevant part thereof or the installation works (in each case, as applicable) and if it does not comply with the warranty set out in clause 5.1 then Addlux shall, at its option, repair or replace the defective Products and/or relevant part thereof and/or rectify the installation works (in each case, as applicable), or refund the price (less the original delivery costs) of the defective Product in full. If Addlux finds that the returned Product or relevant part thereof or installation works (in each case, as applicable) does comply with the warranty set out in clause 5.1 then Addlux shall, at the Buyer’s option, return it to the Buyer (at the Buyer’s cost), supply a replacement (at an additional charge to the Buyer) or retain it and be entitled to charge the Buyer its reasonable costs associated with Addlux’s examination of the Product or relevant part thereof or installation works (in each case, as applicable).
5.3 Addlux shall not be liable for the Products’ or relevant part thereof or installation works (in each case, as applicable) failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Buyer makes any further use of such Products, relevant part thereof or installation works (in each case, as applicable) after giving notice in accordance with clause 5.2;
(b) the defect arises because the Buyer failed to follow Addlux’s oral or written instructions as to the storage,
commissioning, handling, installation, use and maintenance of the Products, relevant part thereof and/or
installation works (in each case, as applicable) or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of Addlux following any drawing, design or specification supplied by the Buyer;
(d) the Buyer alters or repairs such Products, relevant part thereof and/or installation works (in each case, as
applicable) without the written consent of Addlux;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working
conditions; or
(f) the Products, relevant part thereof and/or installation works (in each case, as applicable) differ from the
Specification as a result of changes made to ensure they comply with applicable statutory or regulatory
requirements.
5.4 Except as provided in this clause 5, Addlux shall have no liability to the Buyer in respect of the Products’, relevant parts’ thereof or installation works’ (in each case, as applicable) failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Products Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Products, LEDs and/or power supplies (as applicable) supplied by Addlux.
5.7 Where Addlux wishes to add specific warranty periods in respect of certain components forming part of the Products then Addlux shall notify the Buyer of this in writing (which may be by email) and the provisions of this clause 5 shall be deemed to apply from the date of such notice to that component.
6. TITLE AND RISK
6.1 The risk in the Products shall pass to the Buyer on completion of delivery.
6.2 Title to the Products shall pass to the Buyer:
(a) on delivery of the Products, where payment in full (in cash or cleared funds) for the Products has been received
by Addlux on or prior to such date of delivery; or
(b) at the time of receipt by Addlux of payment in full (in cash or cleared funds) for the Products, where such
payment is after the date of delivery of the Products.
6.3 Until title to the Products has passed to the Buyer, the Buyer shall:
(a) store the Products separately from all other goods held by the Buyer so that they remain readily identifiable as
Addlux’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from
the date of delivery;
(d) notify Addlux immediately if it becomes subject to any of the events listed in clause 8.2; and
(e) give Addlux such information relating to the Products as Addlux may require from time to time.
6.4 If before title to the Products passes to the Buyer the Buyer becomes subject to any of the events listed in clause 8.2, then, without limiting any other right or remedy Addlux may have:
(a) the Buyer’s right to resell the Products or use them in the ordinary course of its business ceases immediately;
and
(b) Addlux may at any time:
(i) require the Buyer to deliver up all Products in its possession which have not been resold, or irrevocably
incorporated into another product; and
(ii) if the Buyer fails to do so promptly, enter any premises of the Buyer 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 agreed between the parties and set out in the invoice supplied by Addlux.
7.2 Addlux may, by giving notice to the Buyer at any time up to 10 Business Days before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
(a) any request by the Buyer to change the delivery date(s), quantities or types of Products ordered, or the Specification;
or
(b) any delay caused by any instructions of the Buyer or failure of the Buyer to give Addlux adequate or accurate
information or instructions.
7.3 Unless otherwise agreed in writing (which may include email), the price of the Products is exclusive of the costs and charges of packaging, insurance and transport of the Products, which shall be invoiced to the Buyer.
7.4 The price of the Products is exclusive of amounts in respect of value added tax (VAT). The Buyer shall, on receipt of a valid VAT invoice from Addlux, pay to Addlux such additional amounts in respect of VAT as are chargeable on the supply of the Products.
7.5 Addlux may invoice the Buyer for the Products on or at any time after the completion of delivery.
7.6 Unless otherwise agreed in writing, the Buyer shall pay the invoice in full and in cleared funds at the time that the relevant Order is placed. Payment shall be made to the bank account nominated in writing by Addlux. Time of
payment is of the essence.
7.7 If the Buyer fails to make any payment due to Addlux under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 5% per annum above the Bank of England’s base rate from
time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
7.8 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Addlux may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by Addlux to the Buyer. Without prejudice to any other terms of the Contract, Addlux may withhold delivery of any Products until such time as the Buyer has paid all amounts due to Addlux under this Contract or any other contract between the parties for the sale and purchase of any Products.
8. TERMINATION AND SUSPENSION
8.1 If the Buyer becomes subject to any of the events listed in clause 8.2, Addlux may terminate the Contract with immediate effect by giving written notice to the Buyer.
8.2 For the purposes of clause 8.1, the relevant events are:
(a) the Buyer 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 or limited liability partnership) 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;
(b) the Buyer 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;
(c) (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 Buyer, other than for the sole purpose of a scheme for a solvent
amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
(d) (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 Buyer;
(e) (being a company) the holder of a qualifying floating charge over the Buyer’s assets has become entitled to
appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the Buyer’s assets or a receiver is appointed over the Buyer’s assets;
(g) (being an individual) the Buyer is the subject of a bankruptcy petition or order;
(h) a creditor or encumbrancer of the Buyer 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 14 days;
(i) any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a) to clause 8.2(f) (inclusive);
(j) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; and
(k) (being an individual) the Buyer 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 Without limiting its other rights or remedies, Addlux may suspend provision of the Products under the Contract or any other contract between the Buyer and Addlux if the Buyer becomes subject to any of the events listed in clause 8.2(a) to clause 8.2(k), or Addlux reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
8.4 On termination of the Contract for any reason the Buyer shall immediately pay to Addlux all of Addlux’s outstanding unpaid invoices and interest.
8.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
8.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude Addlux’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Products Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for Addlux to exclude or restrict liability.
9.2 Subject to clause 9.1:
(a) Addlux shall under no circumstances whatever be liable to the Buyer, 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; and
(b) Addlux’s total liability to the Buyer 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 100% of the price payable for the Products forming the subject matter of the Contract.
10. FORCE MAJEURE
Neither party shall 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 a party’s reasonable control, including strikes, lock-outs or other industrial disputes, interruption or failure of energy sources or utilities or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, imposition of sanctions or embargo, any law or any action taken by a government or public authority (including the imposition of import or export restrictions or goods being delayed in customs), malicious damage, breakdown of plant or machinery, collapse of building structures, explosions, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of or delay caused by suppliers, subcontractors or other third party.
11. ASSIGNMENT AND OTHER DEALINGS
11.1 Addlux may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.2 The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Addlux.
12. NOTICES
12.1 Any notice to be given hereunder shall be delivered by hand or sent by first class post to the address of the other party set out in this Contract (or such other address as may have been notified) and any such notice or other document shall be deemed to have been served, if hand delivered, at the time of delivery or, if sent by post, upon the expiration of forty-eight (48) hours after posting.
13. GENERAL
13.1 Each provision of this Contract is severable and if the whole or any part of any provision is or becomes illegal, invalid or unenforceable or contravenes any applicable law it shall be severed from the remainder. This shall not affect the remainder of the affected provisions or any other provisions which shall continue to be valid and enforceable to the fullest extent permitted by law.
13.2 No failure or delay by a party to exercise any right or remedy provided under this 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 ight 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.
13.3 A person who is not a party to this Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
13.4 The rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
13.5 No amendment or variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14. GOVERNING LAW AND JURISDICTION
14.1 This Agreement 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 the law of England and Wales.
14.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including noncontractual disputes or claims).
