Terms & Conditions
B&T Associates LTD T/A Lumineux & MPWPSU.com TERMS AND CONDITIONS OF SALE (“these Terms and Conditions”)
1. DEFINITIONS
In this Contract:
1.1 the following terms shall have the following meanings unless the context otherwise requires:
“Breach of Duty”
Has the meaning given to it in Clause 7.7.1;
“Catalogue”
Supplier’s then current catalogue at the time of Supplier’s receipt of the Order;
“Business Day”
Any day other than (i) a Saturday, (ii) a Sunday or (iii) a day when the clearing banks are not physically open for business in the City of London;
“this Contract”
These Terms and Conditions together with: (a) the relevant Order Acknowledgement (if any); or (b) (if no Order Acknowledgement) the terms of the relevant Order (except to the extent that the terms of the Order deviate from the Quotation (if any) or from the Long Term Agreement (if any), and not agreed by Supplier);
“Customer”
The customer of Supplier whose details may be more particularly set out in the Order, Order Acknowledgement or Long Term Agreement;
“Event of Force Majeure”
Has the meaning given to it in Clause 10.1;
“Fee”
The fee payable by Customer to Supplier for the supply by Supplier of the Products as stipulated in this Contract or Long Term Agreement (or if no such fee is agreed in writing or specified by Supplier, then this shall be the fee listed in Supplier’s published price list current at the date of the Order);
“Liability”
Has the meaning given to it in Clause 7.7.2;
“Long Term Agreement”
Any written agreement between the Parties governing the long-term relationship concerning the supply of Products by Supplier to Customer;
“Order”
The written request by Customer to Supplier for the provision of particular Products for a particular project or enquiry, which may be in accordance with the terms of a particular Quotation or the Long Term Agreement;
“Order Acknowledgement”
The written document or written communication (if any) which Supplier despatches to Customer (in response to Supplier’s receipt of an Order), which may contain (together with any applicable Long Term Agreement) the particular details of any provision of particular Products for a particular project or enquiry and which may reflect the commercial terms of the Quotation or Long Term Agreement;
“Party”
Either Supplier or Customer;
“Payment”
Has the meaning given to it in Clause 4.1;
“Products”
Any of Supplier’s products provided or to be provided by Supplier to Customer pursuant to this Contract, as more particularly identified in this Contract or Long Term Agreement and described in the Catalogue;
“Returns Form”
Means the returns form available for download on the Supplier’s website (www.bt-associates.co.uk) or requested through our returns department, as amended from time by the Supplier “Returns Policy” Means the returns policy set out on the Supplier’s Returns Form
“Quotation”
The written quotation (if any) from Supplier to Customer or Customer’s (direct or indirect) customer detailing the number and quantity and type of Products that Supplier is willing in principle to supply to Customer or Customer’s (direct or indirect) customer for a particular project or enquiry;
“Supplier”
B&T Associates Ltd, a company registered in England and Wales under number 1987654 whose registered office is at Davis House, Manby Business Park, Manby (fax number +44 [0] 1507 328039);
“VAT”
Any tax introduced pursuant to a direction of the Council of the European Community relating to turnover taxes including value added tax as provided for in the Value Added Tax Act 1994 and supplemental legislation (whether delegated or otherwise), any tax of a similar nature which any be substituted for or levied in addition to it and any sales tax; Warranty Claim Terms and Conditions Form means the warranty claim terms and conditions form available for download on the Supplier’s website (www.bt-associates.co.uk) or requested through our returns department, as amended from time by the Supplier.
1.2 References to “Clauses” are to clauses of these Terms and Conditions;
1.3 The headings to Clauses are inserted for convenience only and shall not affect the interpretation or construction of this Contract;
1.4 Words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership;
1.5 References to “includes” or “including” or like words or expressions shall mean without limitation;
1.6 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification); and
1.7 references to “written” or in “writing” (except in respect of sending a notice in accordance with Clause 11) includes in electronic form.
2. AGREEMENT
2.1 The terms of this Contract apply to the exclusion of any terms and conditions submitted, proposed or stipulated by Customer. These Terms and Conditions apply to Supplier’s supply of all Products. The giving by Customer of any delivery instruction or the acceptance by Customer of delivery or collection of the Products shall constitute unqualified acceptance by Customer of these Terms and Conditions.
2.2 Save as expressly provided herein, this Contract (together with any documents referred to in it) shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties hereto preceding the date of this Contract and in any way relating to the subject matter of this Contract and to the exclusion of any representations not expressly stated herein save for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each Party acknowledges that it has not entered into this Contract based on any representation that is not expressly incorporated into this Contract.
2.3 This Contract (together with any documents referred to in it) constitutes the whole agreement and understanding of the Parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
2.4 Subject to Clause 2.2, all materials and other particulars furnished by Supplier prior to the Quotation or Order Acknowledgement or Long Term Agreement or in Supplier’s sales or marketing materials or other documents (including its catalogues, trade literature, brochures, quotations, price lists or website) or made orally by Supplier are given for general information purposes only and Customer acknowledges that it is not entering into this Contract in reliance upon any such materials or other particular (except to the extent that such materials or particular forms part of this Contract); the Products may also look different to their representation in any such materials or particulars.
2.5 Except as expressly provided otherwise in this Contract, no change to this Contract shall be binding unless it is agreed in writing by each of Supplier and Customer and in any format described as being required in the Quotation or Long Term Agreement.
2.6 In the event of any conflict between the provisions of these Terms and Conditions and the provisions of the rest of this Contract or any Long Term Agreement, then the following order of precedence shall apply:
2.6.1 the Long Term Agreement prevails over an Order, Order Acknowledgement and these Terms and Conditions; and
2.6.2 any Order Acknowledgement prevails over the Order; and
2.6.3 the Order prevails over these Terms and Conditions.
2.7 The Order shall contain:
2.7.1 a reference to the Product(s) already described by Supplier (in the Brochure or Quotation or Long Term Agreement);
2.7.2 the quantity of that Product(s) ordered with Supplier;
2.7.3 the identity of Customer; and
2.7.4 the price for that Product(s) ordered to reflect the price already given by Supplier in the relevant Quotation or Long Term Agreement or otherwise agreed in writing by Supplier.
2.8 Except to the extent of the information in an Order described in Clause 2.7, if Customer provides Supplier with an Order, purchase order, confirmation of order, specification or other document for the Products, such document shall be purely for Customer’s administrative purposes only and shall not form part of this Contract.
2.9 Customer shall ensure that the Order is on the same terms as any Quotation and Long Term Agreement and is made in accordance with the terms of the Quotation or Long Term Agreement (except to the extent that Supplier has agreed in writing to the contrary). If the Parties agree that Supplier will proceed to provide the Products, then such provision shall be only on the understanding that any differences in the Order from the Quotation or Order Acknowledgement or Long Term Agreement shall have no effect unless the Parties expressly agree otherwise in writing.
2.10 This Contract shall be legally formed and the Parties shall be legally bound on the earlier of:
2.10.1 Supplier despatching its Order Acknowledgement to Customer confirming the terms on which the Parties have agreed to proceed; or
2.10.2 Supplier delivering some or all of the Products agreed in the Order or (if earlier) Supplier informing Customer that those Products are ready for collection.
2.11 It is Customer’s responsibility to ensure that the Quotation, Order and Order Acknowledgement are complete and accurate and to point out to Supplier in writing anything, which is incomplete or inaccurate.
2.12 Each Order constitutes a separate contract. There may be more than one contract between the Parties in force at the same time as this Contract.
2.13 This Contract only applies to the supply of Supplier’s standard products. Any bespoke products shall be subject to additional or separate terms agreed in writing between the Parties.
3. DELIVERY AND RISK
3.1 In consideration for the payment of the Fee and any other sums due by Customer, Supplier shall supply the Products referred to in the Order to Customer.
3.2 Supplier shall use its reasonable endeavours to perform its obligations within any timescales set out in this Contract, but time for performance shall not be of the essence and Supplier shall not be liable for any delays or failure to accurately perform its obligations:
3.2.1 if it has used those endeavours; or
3.2.2 if caused by any failure or delay on the part of Customer or Customer’s agents, staff, officers, employees and contractors or customers or by any breach by Customer of this Contract or any other contract between the Parties; or
3.2.3 if the reason for the delay in providing the Products is because the machinery producing the Products is already working to capacity. Any timeframe for delivery in a previous contract shall be no indication of the timeframe for delivery in this Contract.
3.3 Partial delivery or performance shall be permitted. Supplier may deliver and provide the Products in instalments. Unless the Parties otherwise agree in writing, Supplier may invoice Customer for all Products covered by the Order in accordance with Clause 8.3, notwithstanding that Supplier has not yet delivered all the Products to Customer.
3.4 Delay, default or non-delivery of any instalment by Supplier shall not entitle Customer to cancel or terminate, and shall not affect, the remainder of this Contract.
3.5 Unless otherwise agreed in writing between the Parties, this Contract is for delivery of the Products CPT – Carriage Paid To (Incoterms 2010) at the place stipulated as such in the Order Acknowledgement (or if no place stipulated, then Supplier’s normal location for despatch of the Products in the UK). For the avoidance of doubt, this means that delivery shall be deemed to be completed when the Supplier’s nominated carrier collects the Products from the Supplier’s premises. If there is any conflict between the provisions of Incoterms 2010 and this Contract, this Contract shall prevail. Sections 32 (2) and (3) of the Sale of Goods Act 1979 shall not apply to this Contract.
3.6 Notwithstanding the place of delivery as set out in clause 3.5 (including the risk and responsibility allocation in accordance with the CPT – Carriage Paid To provisions of Incoterms 2010), Supplier reserves the right to despatch the Products to a carrier selected by Supplier and arrange and pay for the carriage to Customer’s premises (as Customer’s agent), and invoice Customer for those carriage and insurance costs at the same time as invoicing for the Products.
3.7 Supplier shall inform Customer of the estimated date on which the Products will be ready for delivery or collection.
3.8 Customer shall ensure that it is ready for safe receipt (or, as the case may be, collection) of the Products without undue delay.
3.9 Customer may be required to sign a delivery note and other documentation upon delivery of the Products. The signing of any such documentation by Customer shall be evidence that the Products have been delivered and in the quantities stipulated in the documentation. Customer shall inspect the Products and packaging for any obvious damage (including the sound of broken glass) and make a note of any obvious damage when signing.
3.10 All risk in the Products shall pass to Customer upon delivery, provided that where delivery is delayed due to breach by Customer of its obligations under this Contract risk shall pass at the date when delivery would have occurred but for that breach.
3.11 Customer shall keep the Products fully insured on Supplier’s behalf with a reputable insurance company to the reasonable satisfaction of Supplier for their full price against all risks of loss or damage from the time when the risk passes to Customer at delivery until property passes in accordance with Clause 4. On request, Customer shall produce the policy of insurance to Supplier. If the Products are lost, damaged or destroyed, Customer shall hold the proceeds of insurance for and to the order of Supplier pending Payment (as defined in Clause 4.1).
3.12 If delivery of the Products is delayed or obstructed through Customer’s default or breach of this Contract or if Customer unreasonably declines or delays in accepting or taking delivery or receipt of the Products, then (subject to Clause 7) Supplier shall not have any Liability as a result and Supplier may (without prejudice to any other right or remedy available to it) do all or any of the following:
3.12.1 sell the Products for Supplier’s account;
3.12.2 cancel this Contract as regards any Products that remain to be delivered or performed;
3.12.3 charge a reasonable storage fee for the Products; and
3.12.4 require Customer to indemnify Supplier for any and all losses, liabilities, claims, proceedings, judgments, damages, demands, actions, costs, charges, expenses, penalties and fines suffered or incurred by Supplier as a result of Customer declining or delaying.
3.13 Where delivery is not to the United Kingdom, Customer shall be responsible for complying with all applicable laws, regulations and codes of practice governing the importation, installation and use of the Products into the country of destination and for payment of any duties or levies thereon.
4. TITLE
4.1 Notwithstanding delivery (or installation), title to and ownership of the Products shall not pass to Customer until Supplier has received in full (in cash or cleared funds) all sums due to it in respect of:
4.1.1 the Products; and
4.1.2 all other sums which are or which become due to Supplier from Customer on any account;
(“Payment”).
4.2 Until Payment, Customer shall:
4.2.1 hold the Products on a fiduciary basis as Supplier’s bailee; and
4.2.2 not destroy, deface or obscure any identifying mark or packaging on or relating to the Products.
4.3 Customer may resell the Products before Payment solely on the following conditions:
4.3.1 any sale shall be effected in the ordinary course of Customer’s business at full market value;
4.3.2 any such sale shall be a sale of Supplier’s property on Customer’s own behalf and Customer shall deal as principal when making such a sale; and
4.3.3 Customer shall still be responsible for paying to the full value of the Payment. If Supplier requires, Customer shall authorise and direct such third party buyer to pay to Supplier a like part of the sum due to Customer in respect of the Products sold and assign to Supplier such part of the debt owed to Customer by the third party.
4.4 If the Products are attached to or incorporated into or mixed with any other materials or goods or substances or used in any manufacturing process, the property in the new material or good or substance shall vest until Payment in Supplier in the proportion of the value of the Products to the other constituent elements.
4.5 Supplier may at any time until title passes under this Clause 4 without notice recover possession of the Products which are the property of Supplier. Customer hereby grants to Supplier for Supplier and its agents, staff, officers, employees and contractors an irrevocable licence to enter for that purpose any premises then occupied by or in the ownership or possession of Customer or Customer’s customer. Customer shall indemnify Supplier against all claims, losses, damages, liabilities, costs and expenses so arising.
4.6 Supplier shall be entitled to recover payment for the Products not with standing that ownership of any of the Products has not passed from Supplier.
4.7 On termination of this Contract, howsoever arising, Supplier’s rights contained in this Clause 4 shall remain in effect.
5. CUSTOMER REQUIREMENTS
5.1 Customer agrees that, as between it and Supplier, Customer shall be responsible for ensuring that:
5.1.1 the Products meet its and its customers’ requirements and purposes and is suitable for all anticipated uses;
5.1.2 the Products are properly installed, maintained and used in accordance with Supplier’s instructions (including as set out in the Brochure and any installation instructions supplied by Supplier on or before delivery), and installed and maintained by service people of the highest level of competence and training acting with all due care and skill; and
5.1.3 the location of the Products is in a sensible place for installation, maintenance or other servicing (taking into account the cost and feasibility of replacing the Products periodically through wear and tear or to replace a faulty Product). Customer (or Customer’s customer) shall be responsible for all costs incurred in any such installation, maintenance or servicing;
6. WARRANTY
BATTERIES & BATTERY WARRANTIES
All Lumineux emergency products that are supplied with rechargeable batteries have a battery operation design life of > 4 years (subject to correct usage and installation)
Unless otherwise stated, Lumineux offer the following warranties on its emergency batteries:
Product warranty of 5 years have 2 year battery warranty.
Product warranty of 3 years have 1 year battery warranty.
All E-SEL3 labelled products have a product warranty of 5 years and a 5 year battery warranty as standard.
Operation temperatures
0º to +30º unless specified on data sheet as standard operating temperatures.
Specific Battery Warranty Conditions
The above warranties are subject to the products being installed and maintained in accordance with the instructions supplied with the products and/or as set out in the product specification sheet.
Particular notice should be taken of all guidance and specifications quoted with regards to installing batteries in high ambient temperatures. Installing Lumineux emergency products in environments with higher ambient temperatures than those specified will void all warranties on those products.
Warranty Obligations
The company’s obligations under this warranty is to repair and/or replace any defective parts or products at our sole discretion, providing such defective parts or products are brought to our attention within the specified warranty time period. B&T Associates Ltd / Lumineux is not responsible for any costs associated with the removal or replacement of defective parts and/or products or installation costs or consequential damages, however caused. In any event the maximum liability of the company under this warranty shall not exceed the purchase price of the product.
On-site warranty
All Lumineux & truSmart products comply with their published specification and are covered by our warranty cover, as fully outlined in our B&T Associates Ltd Terms & Conditions. Standard warranty terms include, but are not limited to, that within the warranty period from the date of invoice, Lumineux will, at our discretion, offer to repair, refurbish, or replace a failed product or, if the product is no longer available, offer a closest alternative product replacement. Any product deemed not to have been installed, maintained, and tested in accordance with our instructions or is not compliant with all current and relevant electrical installation regulations, or is not deemed to be in accordance with generally accepted installation practice, will invalidate the warranty.
Onsite Warranty
In addition to the standard warranty of the product, Lumineux & truSmart will offer onsite warranty on products that carry a 5-year or more warranty. For the onsite warranty, you must register your project on our website within 90 days with proof of purchase for a unique reference number. You will need this unique code if you need to make a claim. Unregistered products will default to the standard warranty terms. The on-site warranty applies in addition to the terms and conditions contained in our standard warranty. This policy includes replacement products of the same specification or similar and will cover fair and reasonable on-site charges that relate only to faulty Lumineux products that have been properly installed and used for their intended purpose. For the full On-site Warranty Terms and Conditions, please see www.lumineux.co.uk/warranty, alternatively contact us at sales@lumineux.co.uk and a copy will be provided to you.
WARRANTY
6.1 Subject to the rest of this Clause 6, Supplier warrants that: the Products shall be free from material defects in design, workmanship and materials and conform to the specification for the Products set out in the Brochure or specification sheet.
6.2 The warranty set out in clause 6.1 above shall be in addition to any other warranty statement set out on the specification sheet or otherwise as expressly agreed in writing between the Supplier and the Customer.
6.3 Supplier is not responsible for any services or products not expressly stipulated in this Contract that Supplier will provide. Except for any matter upon which Supplier specifically agrees in writing with Customer to advise or do, Supplier shall not have any Liability for advising on, or failing to advise on, or doing, or failing to do, anything else (including on any laws, rules, regulations, bye-laws or codes of practice).
6.4 Supplier shall not have any Liability whatsoever to the Customer for loss of or damage to Products in transit.
6.5 Where a warranty claim is made by Customer under Clause 6.1, then, subject to Clause 6.7, Supplier shall at its option:
6.5.1 replace or repair; or
6.5.2 repay an appropriate portion of the purchase price of; or
6.5.3 provide a credit note in respect of a reasonable part of; the delivered Products which are not in conformance with the warranty set out in Clause 6.1. For the avoidance of doubt, the remedies set out in this Clause 6.5 are the sole remedies available to the Customer in respect of a claim made under clause 6.1
6.6 Supplier shall not have any Liability for providing Products to the extent caused by Supplier’s compliance with and reliance on Customer’s instructions or requirements.
6.7 Supplier’s Liability for defective or damaged Products and any warranty claim is subject to:
6.7.1 Customer having signed and returned to the Supplier a copy of the Warranty Claim Terms and Conditions Form;
6.7.2 Customer notifying Supplier of any claim promptly upon discovery of the defect or damage and in any event within one month of discovery, specifying with reasonable detail the way in which it is alleged that the Products do not conform to this Contract;
6.7.3 Customer having provided Supplier with Supplier’s delivery note number and such other information and documentation as Supplier reasonably requires at the same time as the notice in Clause 6.7.1;
6.7.4 Customer showing to Supplier’s reasonable satisfaction that the defect or damage is solely attributable to Supplier’s (or Supplier’s subcontractors’) defective design, materials or workmanship in the Products and not: (a) wear or tear from normal use; or (b) any installation or servicing by anyone after delivery by Supplier (including the carrier); (c) the combination, incompatibility, attachment, affixation, incorporation or mixing of the Products with any other goods, products, materials or substances; or (d) loss or damage of the Products caused during transit. If Customer is not happy with Supplier’s decision on these issues, Customer may pay for an independent expert (subject to the Parties agreeing on an appropriate expert) to decide on whether Supplier has acted reasonably, and the expert’s determination shall be final and binding on the Parties and not subject to appeal or other judicial review, save in the case of manifest error by the expert; if the expert decides that Supplier’s decision was unreasonable, Supplier shall instead pay for the reasonable costs of the expert;
6.7.5 the Products having not been: (a) misused or subjected to neglect, improper or inadequate care or carelessness (including being hit, dropped, kicked, knocked or pushed), abnormal working or usage conditions; or (b) involved in any accident or attempt at repair, replacement, alteration, change or modification or inspection within the Product itself except by or on behalf of Supplier or as approved by Supplier or in accordance with Supplier’s instructions; or (c) dealt with or installed or wired or used or stored contrary to good trade practice or any oral or written instructions, advice or recommendation of Supplier (including in the Brochure or any installation instructions provided on or before delivery);
6.7.6 Customer allowing and procuring Supplier (or Supplier’s representatives) the opportunity to have access to, inspect, test and remove the Products;
6.7.7 Customer having paid for the Products in full; and
6.7.8 upon Supplier’s request, Customer returning the defective or damaged Products strictly in accordance with the Returns Policy (carriage and insurance paid at Customer’s risk) to Supplier’s premises or such other location stipulated by Supplier anywhere in the world and carefully packed to avoid damage in transit (and Section 36 of the Sale of Goods Act 1979 shall not apply). Unless and until Supplier receives the Products, Customer shall hold the Products safely and securely in good condition.
6.8 The warranty contained in this Clause 6 is specifically limited to Customer. No warranty is made to any other person, whether subsequent buyer or user or customer, or to any bailee, licensee, assignee, employee, agent or otherwise.
6.9 If Customer makes an invalid claim under the warranty, Supplier may charge Customer for its fees and costs of examining, testing, storing, repairing and replacing the Products and dealing with the claim and removing and delivering the Products. For more information on these fees and costs, please refer to the Warranty Claim Terms and Conditions Form.
6.10 Subject to clause 6.2, except where expressly provided for within this Contract, Supplier expressly excludes all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the supply of the Products.
SURGE PROTECTION DEVICES
Surge Protection Devices (SPD) are a requirement under the 18th Edition of the Wiring Regulations and essential in protecting equipment from damage. The Institution of Engineering and Technology (IET) Wiring Regulations (BS 7671) has updated its guidance on SPD in successive editions.
For further information on SPD with a Lumineux product, please contact technical@lumineux.co.uk
7. LIABILITY
7.1 This Clause 7 prevails over all other Clauses and sets forth the entire Liability of Supplier, and the sole and exclusive remedies of Customer, in respect of:
7.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of this Contract or of any goods or services in connection with this Contract; or
7.1.2 otherwise in relation to this Contract or entering into this Contract.
7.2 Supplier does not exclude or limit its Liability for:
7.2.1 its fraud; or
7.2.2 death or personal injury caused by its Breach of Duty; or
7.2.3 any breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or
7.2.4 supply of a defective Product in accordance with Part I of the Consumer Protection Act 1987; or
7.2.5 any other Liability which cannot be excluded or limited by applicable law.
7.3 Subject to the Clause 7.2, Supplier does not accept and hereby excludes any Liability for Breach of Duty other than any Liability arising
pursuant to the terms of this Contract.
7.4 Subject to the Clause 7.2, Supplier shall not have any Liability in respect of any:
7.4.1 indirect or consequential losses, damages, costs or expenses;
7.4.2 loss of actual or anticipated profits;
7.4.3 loss of contracts;
7.4.4 loss of anticipated savings;
7.4.5 loss of revenue;
7.4.6 loss of goodwill;
7.4.7 loss of reputation;
7.4.8 loss of business;
7.4.9 loss of operation time; or
7.4.10 loss of opportunity;
suffered by Customer in respect of this Contract whether or not such losses were reasonably foreseeable or Supplier or its agents or contractors had been advised of the possibility of Customer incurring such losses. For the avoidance of doubt, Clauses 7.4.2 to 7.4.10 apply whether such losses are direct, indirect, consequential or otherwise.
7.5 Subject to Clause 7.2, the total aggregate Liability of Supplier arising out of or in connection with all claims in aggregate (including warranty claims and losses relating to the breach of warranty) shall be limited to the greater of:
7.5.1 £5,000; or
7.5.2 200% of the total sums paid and 200% of the total other sums payable (in aggregate) by Customer to Supplier under this Contract in respect of the particular Products for which there are such claims.
7.6 The limitation of Liability under Clause 7.5 has effect in relation both to any Liability expressly provided for under this Contract and to any Liability arising by reason of the invalidity or unenforceability of any term of this Contract.
7.7 In this Clause 7:
7.7.1 “Breach of Duty” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty); and
7.7.2 “Liability” means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Contract, including liability expressly provided for under this Contract or arising by reason of the invalidity or enforceability of any term of this Contract (and for the purposes of this definition, all references to “this Contract” shall be deemed to include any collateral contract).
8. FEES
8.1 Customer shall pay to Supplier the Fee and other sums due under this Contract.
8.2 Where Supplier requires a particular part of a Fee to be paid in advance of delivery of the Products, delivery of the Products is conditional on Supplier first receiving the advanced Fee and any other sums due in cleared funds in full from Customer.
8.3 Unless otherwise stipulated in the Quotation or Long Term Agreement (or otherwise agreed between the Parties in writing), Supplier may issue invoices to Customer for the Fee (or the relevant part) and other sums due in connection with the Fee upon delivery (or making available for collection) of the Products (or part of them).
8.4 Subject to Clause 8.2, unless otherwise provided in the Quotation or Long Term Agreement, Customer shall pay Supplier for any sums due under this Contract within 30 days after the date of the invoice for the relevant sums.
8.5 All Fees and sums due under this Contract are exclusive of any value added tax or other duties or taxes (if applicable) which shall be payable in addition at the same time as payment of the Fees and other sums due.
8.6 Customer shall pay Supplier by any payment method reasonably stipulated by Supplier.
8.7 Unless otherwise stipulated in this Contract or agreed in writing between the Parties, payment shall be in the currency in force in England from time to time.
8.8 Time for payment shall be of the essence.
8.9 Payment shall be deemed made when Supplier has received cleared funds in full.
8.10 Payment of all sums due to Supplier under this Contract shall be made by Customer in full without any set-off, deduction or withholding whatsoever.
8.11 If Customer is late in paying any part of any monies due to Supplier under this Contract or any other agreement between the Parties, Supplier may under this Contract or by any statute, regulation or bye-law) do any or all of the following:
8.11.1 charge interest on the amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly; and
8.11.2 sell or otherwise dispose of any Products which are the subject of any Order, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment; and
8.11.3 suspend the performance of this Contract and any other agreement between Supplier and Customer until payment in full has been made.
9. TERM AND TERMINATION
9.1 This Contract shall commence when it becomes legally binding in accordance with Clause 2.10 and, unless terminated earlier by either Party exercising any right of termination as set out in this Contract, shall continue in force until the later of:
9.1.1 Customer having paid for the Fees and all sums in full; and
9.1.2 Supplier having despatched all the Products.
9.2 Either Party may terminate this Contract immediately by notice in writing to the other Party if:
9.2.1 the other Party is in persistent breach of any of its obligations under this Contract or any other agreement between the Parties; or
9.2.2 the other Party is in material breach of any of its obligations under this Contract or any other agreement between the Parties which is incapable of remedy; or
9.2.3 the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Contract or any other agreement between the Parties after having been required in writing to remedy such breach within a period of no less than 30 days; or
9.2.4 the other gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other Party’s assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator which entitle the court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt.
9.3 In any event, Supplier may terminate this Contract if Customer is at least 10 Business Days’ late in paying any sum due under this Contract.
9.4 Termination of this Contract shall be without prejudice to any accrued rights or remedies of either Party.
9.5 Termination of this Contract will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
9.6 Upon termination of this Contract for any reason:
9.6.1 Supplier shall cease to perform this Contract; and
9.6.2 all outstanding Fees and any other sums shall become immediately payable, whether invoiced or not.
10. FORCE MAJEURE
10.1 Save for obligations in respect of payment of the Fees, neither Party shall have any Liability for any breach, hindrance or delay in the performance of this Contract attributable to any cause beyond its reasonable control including any event beyond the reasonable control of either party including Acts of God, actions or demands or requirements of third parties (including hackers, suppliers, governments or supra-national authorities), insurrection, riot, civil commotion, war, hostilities, warlike operations, enemy action, national emergencies, act of terrorism, piracy, arrests, restraints or detainments of any competent authority, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, earthquake, natural disaster, natural catastrophe, accident, mechanical breakdown, third party software, failure or problems with public utility supplies (including electrical, telecoms or general internet failure), unavailability or shortage of or inability to obtain materials, equipment, containers or transportation (“Event of Force Majeure”), regardless of whether the circumstances in question could have been foreseen.
10.2 Each of the Parties agrees to inform the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
10.3 The performance of each Party’s obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
10.4 Each Party shall bear its own costs incurred by the Event of Force Majeure.
10.5 Should any performance of obligations be delayed under this Clause 10, each Party shall nevertheless accept performance as and when the other shall be able to perform.
10.6 If the Event of Force Majeure continues without a break for more than one month, either Party may terminate this Contract immediately by notice to the other, in which event neither Party shall have any Liability by reason of such termination.
10.7 If Supplier has contracted to provide identical or similar products to more than one customer and is prevented from fully meeting its obligations to Customer by reason of an Event of Force Majeure, Supplier may decide at its absolute discretion which contracts it will perform and to what extent.
11. NOTICES
11.1 Any notice or other communication required or authorised to be given under this Contract shall be in writing and may be served by personal delivery or by recorded delivery letter (if to an address in the same country) or by overnight courier or by facsimile addressed to the relevant Party at its address stated in this Contract or at such other address or facsimile number as is notified by the relevant Party to the other for this purpose from time to time or at the address or facsimile number of the relevant Party last known to the other.
11.2 Any notice so given by post shall be deemed to have been served two Business Days after the same shall have been despatched to the overnight courier or Post Office and any notice so given by facsimile shall be deemed to have been served upon receipt of an answer back signal from the receiving machine, and in proving such service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and, as the case may be, despatched or an answer back signal received.
12. ASSIGNMENT
12.1 Subject to any assignee (in the case of an assignment) confirming in writing to be bound by the provisions of this Contract, Supplier may assign, transfer, novate or subcontract its rights, liabilities or obligations under this Contract either in whole or in part to any other person, firm or company. Supplier shall promptly give notice to Customer of any assignment, transfer or novation.
12.2 Customer shall not assign, transfer, novate or charge or purport to assign, transfer, novate or charge this Contract or any of its rights, liabilities or obligations under this Contract without the prior written consent of Supplier.
13. GENERAL
13.1 No failure or delay by either Party in exercising any right under this Contract shall operate as a waiver of such right or extend to or affect any other or subsequent event or impair any rights or remedies in respect of it or in anyway modify or diminish that Party’s rights under this Contract.
13.2 If any Clause or other provision in this Contract shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other Clause or provision or part of any Clause or provision, all of which shall remain in full force and effect.
13.3 Nothing in this Contract shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the Parties.
13.4 A person who is not a Party to this Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 in respect of any term of this Contract.
13.5 This Contract shall be governed by and construed in accordance with English law and Customer hereby submits to the jurisdiction of the English courts. The parties irrevocably agree that the English courts shall have exclusive jurisdiction over any claim or matter brought by Customer in relation to this Contract. Nothing in this Clause 13.5 shall limit the right of Supplier to take proceedings against Customer in any other court of competent jurisdiction. All dealings, correspondence and contacts between the parties shall be made or conducted in the English language.
14. STOCK CLEANSE POLICY
14.1 The company does operate a stock cleanse and goods return policy for stockists of the Lumineux range of products, please contact your Account Manager for details and terms. A full copy of our Stock Cleanse Policy can be obtained by email to returns@lumineux.co.uk.
Version: 01/01/2025