GENERAL TERMS AND CONDITIONS (PRODUCTS AND SERVICES)
1. DEFINITIONS
In these Terms, the following definitions apply:
Customer: the person or firm who purchases the Products and/or Services from the Supplier
Supplier: The Secret Lighting Company registered in England and Wales with Company Number 11243964.
Contract: the contract between the Supplier and the Customer for the supply of Products and/or Services in accordance with these Terms.
Products: the products (or any part of them)
Products Specification: the specification for the Products.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know- how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for the supply of Products and/or Services
Quotation: the Supplier’s quotation submitted to the Customer in advance of the Contract for the supply of the Products and/or Services.
Returns: Product(s) which are faulty
Services: the services supplied by the Supplier to the Customer including, without limitation, lighting design, on-site commissioning and on-site inspection and advice.
Terms: these terms and conditions as amended from time to time in accordance with clause 13.7.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Products and/or Services in accordance with these Terms.
2.2 The Order shall only be deemed to be accepted when the Supplier issues the Proforma at which point and on which date the Contract shall come into existence.
2.3 The Contract expressly incorporates these Terms together with any individual terms and conditions expressly agreed between the parties in the Order. In the event of a conflict between these Terms and the individual terms contained in the Order the Terms shall prevail. The Contract constitutes the entire agreement between the parties and these Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 Other than as stipulated in the Products Specification and the Services, any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Products or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Products described in them. They shall not form part of the Contract or have any contractual force.
2.5 Any Quotation given by the Supplier is only valid for a period of 30 days from its date of issue. Quotations are not binding on the Supplier until an Order has been accepted.
2.6 All of these Terms shall apply to the supply of both Products and Services except where application to one or the other is specified.
3. PRODUCTS AND SERVICES AND WARRANTIES
3.1 The Products are described on the Suppliers website/marketing materials as modified by any applicable Products Specification which the Supplier reserves the right to amend if required by any applicable statutory or regulatory requirements.
3.2 The Supplier warrants that on delivery, the products shall:
(a) conform with the Products Specification; and
(b) be free from material defects in design, material and workmanship.
3.3 Subject to clause 3.4, if:
(a) the Customer gives notice in writing during the warranty period (the warranty period for the products will be given at the time of purchase)within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 3.2;
(b) the Supplier is given a reasonable opportunity of examining such Products; and
(c) the Customer returns such Products to the Supplier’s place of business at the Customer’s cost (such cost to be refunded in the event that it is proven that the Products are defective),
(d) the Supplier shall, at its discretion, repair or replace the defective Products.
3.4 The Supplier shall not be liable for the Products’ failure to comply with the warranty in clause 3.2 if:
(a) the Customer makes any further use of such Products after giving a notice in accordance with clause 3.3 (a);
(b) the defect arises because the Customer failed to follow the Supplier’s or Manufacturer’s oral or written instructions as to the storage, installation (including the recommended adhesives and fixings), commissioning, use or maintenance of the Products or (if there are none) good trade practice;
(c) the Customer alters or repairs such Products
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(e) the Products differ from the Products Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
3.5 Except as provided in this clause 3, the Supplier shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 3.
3.6 The Supplier shall provide the Services to the Customer in accordance with the Order in all material respects.
3.7 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services. For the avoidance of doubt the Supplier shall not be responsible for any delays caused or contributed to by the late provision of third-party professional services.
3.8 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.9 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. DELIVERY OF PRODUCTS AND RETURNS
4.1 The Supplier shall ensure that each delivery of the Products is accompanied by a delivery note.
4.2 The Supplier shall deliver the Products to the location set out in the Order or such other location as the parties may agree at any time after the Supplier notifies the Customer that the Products are ready.
4.3 Delivery of the Products shall be completed on the Products’ arrival at the delivery location.
4.4 Any dates quoted for delivery of the Products are approximate only. The Supplier shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products. If the Supplier has not delivered the Products by the end of the tenth week of the delay the Customer shall be entitled to terminate the Contract and recover any sums due. The compensation and recovery of sums paid set out in this clause 4.4 represents the Supplier’s entire liability for delay.
4.5 Where the Order provides that the Supplier is responsible for arranging transit of the Products to the Delivery Location, the Customer must check the Products upon receipt and report any damage, loss or unsatisfactory condition on the enclosed Delivery Note. The Supplier shall, at its discretion, repair or replace free of charge any Products damaged or lost in transit, provided that the carriers and the Supplier receive written notice of such damage or loss within two days of delivery (or such other period as may be specified on the Delivery Note).
4.6 Except for returns for valid warranty claims made under clause 3 of these Terms no returns will be accepted by the Supplier without its prior written agreement and any such returns shall be at the Supplier’s sole discretion on the basis of its returns policy in place at the time.
4.7 A returns form, including a returns number and the invoice number must accompany all returned products prior to returning to enable the processing of the return (the Customer must contact the Supplier to obtain a returns number before returning any products)
4.8 All returned goods must be sent back in their original packaging and the condition that they were supplied in.
4.9 Products that are no longer required can be returned at the Supplier’s discretion (please contact the Supplier in the first instance) and will besubject to a restocking charge –these are also returned at the Customer’s own cost.
5. TITLE AND RISK
5.1 The risk in the Products shall pass to the Customer on completion of delivery.
5.2 Title to the Products shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Products.
6. CUSTOMER’S OBLIGATIONS
6.1 The Customer shall cooperate with the Supplier in all matters relating to the Services and provide the Supplier, its agents, consultants and subcontractors with the requisite accurate information about and safe access to the applicable premises as required for the performance of the Contract.
6.2 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall be entitled to suspend performance of the Services until such time as the Customer Default has been remedied and to be relieved from performing its obligations to the extent that it has been delayed or prevented from carrying them out;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
7. CHARGES AND PAYMENT
7.1 The price for Products shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier’s price list as at the date of delivery. The price of the Products is exclusive of all costs and charges of packaging, insurance, transport of the Products, which shall be paid by the Customer when it pays for the Products.
7.2 The charges for Services shall be given on a time and materials basis (all payments are proforma or at agreed stages):
(a) the charges shall be calculated in accordance with the Supplier’s standard daily fee rates, as set out in the Order or as agreed in writing by the Customer and Supplier;
(b) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials (these items will be discussed with the Customer if required).
(c) one set of amendments are included in the Lighting Design Services. Further requested changes are chargeable at an hourly rate – details of which the Supplier will give to the Customer prior to undertaking the changes.
7.3 The Supplier reserves the right to increase its standard daily fee rates for the charges for the Services and to increase the price of the Products, by giving notice to the Customer at any time before performance or delivery provided that any increase reflects any increase in the cost to the Supplier which is due to:
(a) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Products Specification; or
(c) any delay caused by any instructions of the Customer in respect of the Products or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Products.
7.4 The Supplier reserves the right to charge a reconnection fee for services if six months’ time has lapsed as this is deemed by the Supplier to be a project that is considered dormant (dormant defined by the Supplier includes but not exclusively, no response or feedback to issued designs).
7.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4 % per annum above BOE 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 Customer shall pay the interest together with the overdue amount.
7.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The Customer acknowledges that all Intellectual Property Rights relating to the Products shall remain the exclusive property of the Seller or its suppliers and shall not be used, distributed, licensed, disclosed or registered by the Customer or any third party without prior written consent of the Supplier.
8.2 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
8.3 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
9. CONFIDENTIALITY
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 9 shall survive termination of the Contract.
10. LIMITATION OF LIABILITY:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the Products and/or Services paid for under the Contract.
(c) no action shall be brought against the Supplier more than 12 months after the cause of action has occurred and in any event no later than 18 months after the delivery of the Products.
The limitations and exclusions set out in this Clause 10 will only affect a Customer’s statutory rights (when dealing as a consumer under these terms) to the extent permitted by the law.
11. TERMINATION/CANCELLATION
11.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so; and
(b) a resolution for winding up (other than for the purposes of a solvent amalgamation or reconstruction) is made against the other party or a court shall make any order to that effect, or the other party shall cease or threaten to cease its business or becomes or is declared insolvent or (being an individual) bankrupt or has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over its assets or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due or any other analogous event or measure of equivalent effect takes place (in any jurisdiction) that threatens the ability (or prejudices the party that is the subject of the event in any way) of that party to perform its obligations (financial or otherwise) under the Contract.
11.2 Without limiting its other rights or remedies, the Supplier may, at its sole discretion, with immediate effect by giving written notice to the Customer, suspend the supply of the Services or all further deliveries of the Products under the Contract if the Customer fails to pay any amount due under the Contract on the due date for payment or becomes (or the Supplier reasonably believes will become) subject to any of the events listed in clause 11.1 (b) above terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
11.3 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest. The accrued rights and remedies of the Supplier at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
11.4 If the Customer requests to cancel the Contract, the Supplier may deduct from any refunds due, any costs incurred for the work done to date (including administration costs and other expenses incurred) in accordance with the Supplier’s standard daily fee rates.
12. FORCE MAJEURE
12.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
12.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
12.3 If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Products for more than eight weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
13. Notices. Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business or abode (in any other case) and shall be delivered personally or sent by prepaid first class post or other next working day delivery service, or by commercial courier or email.
14. Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
15. Variation. Except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms and Terms shall be effective unless it is agreed in writing and signed by the Supplier.
16. Governing law. 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.
17. Jurisdiction, 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 Contract or its subject matter or formation (including non-contractual disputes or claims).
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