Waveguide Lighting Ltd – Terms & Conditions of Sale
The Buyer’s attention is in particular drawn to the provisions of condition 10.4.
|1.1 The definitions and rules of interpretation in this condition apply in these conditions. “Buyer”
||the person, firm or company who purchases the Goods from the Company.
||Waveguide Lighting Limited.
||any contract between the Company and the Buyer for the sale and purchase of Goods, incorporating these conditions.
||the place where delivery of the Goods is to take place under condition 4.
||any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2 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.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
2. Application of Terms
2.1 The Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1 The quantity and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample. Registered in England No. 09914246 www.waveguidelighting.co.uk R180723A
3.3 The Company may from time to time make changes in the specification of the Goods which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quantity or fitness for purpose of the Goods.
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company’s place of business. Where the Company has agreed to arrange for carriage of the Goods to the Buyer’s address the costs of carriage and any insurance shall be shown on the Company’s quotation or order acknowledgement and shall be due on the date for payment of the price. The carrier shall be deemed to be the Buyer’s Agent.
4.2 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.3 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 Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.4 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.4.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
4.4.2 the Goods shall be deemed to have been delivered; and
4.4.3 the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.5 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
4.6 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.7 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within three days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery 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.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full:
6.2.1 all sums (in cash or cleared funds) due to it in respect of the Goods; and
6.2.2 all other sums which are or which become due to the Company from the Buyer on any account; and
6.2.3 if applicable, a signed certificate of installation completeness.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
6.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and Registered in England No. 09914246 www.waveguidelighting.co.uk R180723A
6.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer’s right to possession of the Goods shall terminate immediately if:
6.4.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
6.4.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or the Buyer encumbers or in any way charges any of the Goods; or
6.4.3 anything analogous and having substantially similar effect to any of the above events happens under the laws of the jurisdiction of incorporation of the Buyer.
6.5 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.6 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.7 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.8 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect and the Company shall be entitled to suspend all future deliveries of Goods to the Buyer without liability.
7.1 The price for the Goods shall be the price stated on the Company’s quotation or acknowledgement of order. [The Company may, by giving notice to the Buyer at any time up to three days before delivery, increase the price of the Goods to reflect any increase in the cost to the Company which is due to factors occurring after the making of the contract of sale which are beyond the reasonable control of the Company (including, without limitation, foreign exchange fluctuations, taxes and duties and the cost of labour, materials and other manufacturing costs) or for any other reason (including mistakes made during the quotation process) provided that the Buyer may cancel this Contract within three days of any such notice from the Company.]
7.2 The price for the Goods shall be exclusive of any value added tax.
8.1 Subject to condition 8.6, payment of the price for the Goods is due in pounds sterling:-
8.1.1 in the case of UK customers, 30 days from the date which the Goods are invoiced;
8.1.2 in the case of non-UK customers, strictly by letter of credit placed on a bank to be chosen by the Company or at the absolute discretion of the Company by telegraphic transfer in the form of a 25% deposit upon placement of the order and the balance of 75% immediately prior to despatch.
8.2 The Buyer confirms that following delivery of Waveguide products to an agreed destination(s), the buyer agrees to take ownership of the products upon delivery and agreed payment terms will run from the date of delivery. Any Installation Services are separate from the scope of product supply even if the products and the installation are on the same buyer purchase order and agreed payment terms for the installation section of the order (where installation is applicable) will run from the date of completion. Registered in England No. 09914246 www.waveguidelighting.co.uk R180723A
8.3 The Company reserves the right, in the event of failure to meet payment terms, to terminate and invalidate any warranty applicable to the products.
8.4 Time for payment shall be of the essence.
8.5 No payment shall be deemed to have been received until the Company has received cleared funds or letter of credit.
8.6 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.7 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.8 The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9. Product Warranty
9.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company. Without prejudice to the general warranties in 9.2 below, the Company makes no warranty or representation, either express or implied, with respect to any:
9.1.1 components not manufactured by the Company (including their documentation); and
9.1.2 third party software and documentation not written by the Company; and
9.1.3 free issued components specified and /or supplied by the Buyer supplied as part of the Goods, including their quality, performance, merchantability, fitness for a particular purpose, or conformity to any representation or description; and
9.1.4 any control components (e.g. PIR sensors, microwave sensors, daylight sensors etc) or any component or system installed to control the operation of the luminaires.
9.2 The Company warrants that (subject to the other provisions of these conditions) on delivery, and for a period of 60 months from the date of readiness for despatch, the Goods (luminaires only) shall:
9.2.1 be reasonably fit for purpose;
9.2.2 be free from major defects in material and workmanship;
9.2.3 emit 70% or more of their specified lumen output value (LED products only).
9.3 The company does not warrant that the goods are fit for any particular purpose.
9.4 The Company shall not be liable for a breach of any of the warranties in condition 9.2 unless:
9.4.1 the Buyer gives written notice of the defect to the Company, within three days of the time when the Buyer discovers or ought to have discovered the defect by:
18.104.22.168 obtaining a Returns Request Form (RRF) from the Company’s Customer Service Department, and then submitting it to the Company within 7 days; and
22.214.171.124 providing a valid purchase order number and satisfactory evidence of purchase to the Company; and
126.96.36.199 obtaining a Return Note (RN) number (valid for 7 days from the date of issue); and
188.8.131.52 following the Return of Products Instructions in clause 9.4.2 below and any instructions issued by the Company.
9.4.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods (at the Buyer’s risk) to the Company’s place of business at the Buyer’s cost for the examination to take place there. All returned Goods must include a RRF and original proof of purchase, with a valid RN written clearly on the outside of the package. No collect on delivery packages will be accepted.
9.5 The Company shall not be liable for a breach of any of the warranties in condition 9.2 if:
9.5.1 the defect is considered to be as a result of fair wear and tear; or
9.5.2 the Buyer makes any further use of such Goods after giving such notice; or
9.5.3 the defect arises due to wilful damage, abnormal storage or working conditions, incorrect installation; or Registered in England No. 09914246 www.waveguidelighting.co.uk R180723A
9.5.4 the defect arises due to accident or negligence by the Buyer or a third party; or
9.5.5 the Buyer fails to operate or maintain the goods in accordance with user instructions; or
9.5.6 the defect arises because of fire, flood, lightning or improper electric current; or
9.5.7 the Buyer modifies, removes and/or adds parts to the Goods, alters or repairs such Goods without the written consent of the Company (i.e. not by, or under the supervision of, the Company’s authorised representative) and any defect caused by such actions; or
9.5.8 the defect arises due to any specification provided by the Buyer; or
9.5.9 the defect arises due to the control system or a control component not working as described or any failure in the control / electrical system outside of the luminaire and rendering the luminaire without lumen output; or
9.5.10 the defect arises due to adverse weather conditions; or
9.5.11 the defect arises due to a fault with the luminaire which should have been evident to the buyer before installation; or
9.5.12 the buyer has not thoroughly inspected the goods upon delivery and the goods were installed before the buyer inspected.
9.6 Subject to condition 9.4 and condition 9.5, if any of the Goods do not conform with any of the warranties in condition 9.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at its expense, return the Goods or the part of such Goods which is defective to the Company.
9.7 Except as provided in this clause 9, we will have no liability to you in respect of the failure of the goods to comply with the warranty at clause 9.2.
9.8 The warranty shall not apply to:
9.8.1 any incidental costs arising in connection with the correction of defects (guarantee fulfilment), such as for installation and removal, transport of the defective and repaired or new product, disposal, travel and transit time, hoists, scaffolding, lifts and platforms, labour costs, loss of production / profits etc; these costs are borne by the Buyer;
9.8.2 plastic or metallic parts (e.g. made of polycarbonate, steel or aluminium) to the extent they discolour, display minor surface oxidisation or corrosion where structural integrity is not affected or parts embrittle due to the natural ageing process;
9.8.3 product defects that are attributable to software errors, bugs, viruses or the like;
9.8.4 failures resulting from control components, systems or sensors failing to operate the luminaires correctly.
9.9 Any Goods (or part of the Goods) replaced shall belong to the Company and any repaired or replacement Goods (or part of the Goods) shall be guaranteed on these terms for the unexpired portion of the 60-month period.
9.10 No reseller, agent or employee is authorised to make any modification, extension or addition to this limited warranty. Variations may only be agreed in writing by a director of the Company.
9.11 The Company shall not be responsible for any pre-installed third-party software programs installed on the Goods and the Buyer shall contact the relevant third-party licensor for support in relation to such software. Such software is excluded from the terms of this limited warranty.
9.12 Post-warranty repair may be offered by the Company, subject to compliance with its terms of service and payment of its charges, by contacting Customer Service at the Company’s address.
9.13 The warranty expires immediately if the Buyer or third parties make or perform changes, repairs, service work or troubleshooting without the prior written consent of the Company.
10. Limitation of Liability
10.1 The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
10.1.1 any breach of these conditions;
10.1.2 any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and Registered in England No. 09914246 www.waveguidelighting.co.uk R180723A
10.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these conditions excludes or limits the liability of the Company:
10.3.1 for death or personal injury caused by the Company’s negligence; or
10.3.2 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
10.3.3 for fraud or fraudulent misrepresentation.
10.4 Subject to condition 10.2 and condition 10.3:
10.4.1 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
10.4.2 the Company shall not be liable to the Buyer 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.
11. Compliance with export laws and legislation
11.1 In relation to any dealing(s) with the Goods by or on behalf of the Buyer following delivery, it shall comply with all applicable national and international (re-)export control laws and regulations (including without limitation Council Regulation (EC) 428/2009).
11.2 Prior to any dealing(s) with the Goods (which shall include transfer to a third party purchaser), the Buyer undertakes to ensure that:
11.2.1 such dealing(s) shall not amount to any infringement of any national and European Union trade embargo or sanction (which the Company may notify, but shall not be obliged to, the Buyer from time to time); and
11.2.2 if required to conduct export control checks, the Buyer shall, upon request by the Company, promptly provide the Company with all information relating to the relevant end customer(s), destination and intended use of the Goods, as well as any export control restrictions.
11.3 The Buyer shall indemnify the Company against all costs, expenses, claims, loss or damage incurred or suffered by the Company, or for which the Company may become liable (whether direct, indirect or consequential and including any economic loss or other loss of profits, business or goodwill), arising out of any act or omission of the Buyer relating to any non-compliance with export control regulations by the Buyer.
12.1 The Buyer shall:
12.1.1 comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010;
12.1.2 comply with the Company’s Anti-corruption Policy as the Company may update them from time to time; and
12.1.3 ensure that any person associated with the Buyer also complies with clauses 12.1.1 and 12.1.2 and shall be directly liable to the company for any breach by such persons of these clauses.
13.1 The Company may assign the Contract or any part of it to any person, firm or company.
13.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
14. Force Majeure
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 180 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract. Registered in England No. 09914246 www.waveguidelighting.co.uk R180723A
15.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
15.2 If any provision of the 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 of 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.
15.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
15.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
15.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
15.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
16. Installation Services (the Services)
16.1 The Company will supply the services in accordance with any written specification for the services agreed in writing between us.
16.2 The Company will use our reasonable endeavours to meet any performance dates agreed between us in writing, but these dates will be estimates only and time will not be legally binding on us.
16.3 The Company may make changes to the services which are necessary to comply with applicable laws or safety requirements or which do not materially affect the nature or quality of the services.
16.4 The Buyer must:
16.4.1 cooperate with the Company in all matters in relation to the services;
16.4.2 provide the Company, its employees, agents, consultants and subcontractors with access to your premises and other facilities as reasonably required by us to provide the services;
16.4.3 provide the Company with such information and materials as we reasonably require in relation to the services and ensure that such information is accurate in all material respects;
16.4.4 obtain and maintain any necessary licences, permissions and consents required for the services before the date on which the services are due to start;
16.4.5 keep and maintain any materials, equipment, documents or property of the Company or its employees, agents, consultants and subcontractors at your premises in safe custody at your own risk; and
16.4.6 ensure that your premises provide a safe environment in which to perform the services.
16.5 If our performance of any of our obligations in relation to the services is prevented or delayed by any act or omission by you or any failure by you to perform a relevant obligation (Your Non-Performance):
16.5.1 we may, without limiting our other rights and remedies, suspend performance of the services until you remedy your Non-Performance and rely on Your Non-Performance to relieve us from the performance of any of our obligations to the extent that Your Non-Performance prevents or delays our performance;
16.5.2 we will not be liable for any cost or losses sustained or incurred by you arising indirectly or directly from any such delay or failure; and
16.5.3 you will reimburse us on demand for any costs or losses sustained or incurred by us arising directly or indirectly from your Non-Performance.
16.6 We warrant that the services will be provided using reasonable skill and care. In the event of any breach of this warranty, we will, at our discretion, refund the price of the services or re-perform the services to your reasonable satisfaction. If we refund the price of the services or re-perform them to your reasonable satisfaction then, subject to clause 10, this will be your only remedy for breach of the warranty set out in this clause 16.6.
17.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax: Registered in England No. 09914246 www.waveguidelighting.co.uk R180723A
17.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
17.1.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
17.2 Communications shall be deemed to have been received:
17.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
17.2.2 if delivered by hand, on the day of delivery; or
17.2.3 if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
17.3 Communications addressed to the Company shall be marked for the attention of the Managing Director or Company Secretary.