In this Document:
“Business Day” means a day (other than a Saturday or a Sunday) on which clearing banks are open for business in the City of London. “Company” means Clearlab Europe Ltd “Contract” means any contract for the sale of goods by the Company to the Customer. “Customer” means the Customer of the Company. “Due Date” means the date falling 30 days after the date of the relevant invoice or, if such a date is not a Business Day, the next following Business Day. “Goods” means any goods supplied by the Company to the Customer and “Terms” means these Standard Terms & Conditions.
2. FORMATION OF CONTRACTS FOR THE SUPPLY OF GOODS
2.1 Each Contract shall be formed at the time that the Customer’s order is accepted by the Company. The acceptance of each order by the Company shall constitute a separate Contract made on the terms set out in these Terms.
2.2 In placing an order upon the Company the Customer acknowledges acceptance of these terms. No variation to these terms by the Customer will be accepted by the Company unless agreed to in writing by the Company.
3. PRICES & PAYMENT
3.1 The price of the Goods shall be those ruling at the time of the acceptance of the Customer’s order by the Company. All prices are per lens or per single unit. Postage and Packaging shall be free of charge as long as the order meets a minimum order quantity. Prices are subject to VAT where applicable.
3.2 Subject to the submission by the Company of an invoice, the Customer shall, on or before the Due Date, pay to the Company in cleared funds in such currency as the Company may specify/the sum specified in the invoice.
3.3 If the Customer fails to make a payment due to the Company under any invoice by the relevant due date, without prejudice to any other right or remedy available to it, the Company shall be entitled without notice to:
3.3.1 suspend or terminate any Contract between the Customer and the Company and,
3.3.2 change the Customer interest (both before and after any judgment) on all overdue payments, at the interest rate applicable on the Due Date under the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue on a daily basis and shall be payable by the Customer forthwith on demand. In the absence of bona fide dispute, all payments to be made by the Customer shall be made in full without set-off or counterclaim and without any deduction whatsoever except to the extent required by law. Where the Customer reasonably disputes any sum invoiced by the Company, the Customer shall notify the Company of the disputed amount within 30 days of the relevant invoice, but shall nevertheless pay any undisputed amounts in accordance with clause 3.2
3.4 The Customer 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 Customer has a valid Court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
4. TITLE & RISK
4.1 Notwithstanding delivery and the passing of risk in the Goods, but subject to clause 4.6, title to the Goods shall not pass to the Customer until:
4.1.1 the Company has received (in cash or cleared funds) payment in full of all sums due to it in respect of:
126.96.36.199 the Goods; and
188.8.131.52 all other sums which are which become due to the Company in respect of any and all other Goods agreed to be sold or provided by the Company or the Customer; or
4.1.2 the Company gives the Customer notice in writing to that effect; whichever shall be the first to occur.
4.2 Without prejudice to clause 4.6 the Customer’s right to possession of the Goods shall terminate immediately if the Company, acting reasonably, believes the Customer may become insolvent or bankrupt (as the case may be).
4.3 Risk of damage to or loss of the Goods shall pass to the Customer at the same time as delivery is effected pursuant to Clause 5.
4.4 Until such time as title to the Goods passes to the Customer the accordance with clause 4.1 or 4.5, the Customer shall;
4.4.1 hold the Goods on a fiduciary basis as the Company’s bailee;
4.4.2 not, without the Company’s prior consent, after or remove any identifying marks placed on the Goods by Company, and;
4.4.3 keep the Goods distinct from those of the Customer and third parties and properly stored, protected and clearly identified as the Company’s property.
4.5 The Customer shall be entitled to resell the Goods in the ordinary course of its business (and the Company hereby gives the Customer the right to pass title to such Goods to the Customer’s buyer).
4.6 Until such time as title to the Goods has passed to the Customer, the Company shall have absolute authority to retake, sell or otherwise deal with or dispose of all or any part of the Goods in which title remains vested in the Company and (provided the Goods are still in existence and have not been resold) the Company shall be entitled at any time to require the Customer immediately to deliver up the Goods to the Company. The Company or its personnel shall be entitled at any time and without notice to enter upon any premises of the Customer where the Goods are stored (or are reasonably believed by the Company to be stored) either to repossess the Goods if the Customer fails to deliver them up or to satisfy itself that the Customer is complying with clause 4.4.
4.7 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Customer does so, all monies owing by the Customer to the Company shall (without prejudice to any other right or remedy to the Company) forthwith become due and payable.
5.1 Delivery of the Goods shall take place at the location and in the manner specified in the Company’s acknowledgement of order.
5.2 The Company shall use its reasonable endeavours to deliver the Goods to the Customer in accordance with the Company’s normal deliver schedules, but any dates notified to the Customer are intended to be estimates only and time for Delivery shall not be of the essence.
5.1 Delay by the Company in the delivery of any Goods shall not entitle the Customer to suspend or terminate these Terms or any Contract made under it. The Goods may be delivered by the Company in advance of the estimated delivery date upon giving reasonable notice to the Customer.
5.2 The Company shall be entitled, at its discretion, to deliver the Goods in instalments
5.3 The Company will take no responsibility for loss in transit unless notified by the Customer in writing within 14 days of the invoice date. Any damage in transit must be notified to the Company in writing (including fax or e-mail) within three days of the receipt of the Goods.
5.4 The Company shall be entitled to vary the specifications of any Goods from time to time, including the substitution of any materials or components provided that the variation shall not materially impair the performance of the Goods.
5.5 The Company will not accept the return of any Goods without previous authorisation by the Company in writing. The original invoice and delivery note must be returned with the Goods when credit or exchange is requested. This term does not affect any of the Customers statutory rights which may be applicable.
5.6 All advertising materials and the rights connected with it belong to the Company, who allows its temporary and free use. Such material remains the exclusive property of the Company and is returnable by the Customer on demand.
6.1 The Company warrants that upon delivery the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
6.2 The Company shall not be liable for a breach of the warranty unless:
6.2.1 the Customer gives written notice of the defect to the Company within 90 days of delivery; and
6.2.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there.
6.3 The Company shall not be liable for a breach of the warranty under clause 6.1 if the defect arises because the Customer failed to follow the Company’s instructions as to storage of Goods.
6.4 Subject to clauses 6.2 and 6.3 if the Goods so not conform with the warranty in clause 6.1 the Company shall, at its option, replace such Goods with similar Goods, or allow the Customer credit for their invoice value.
6.5 If the Company complies with clause 6.4 it shall have no further liability for a breach of the warranty in clause 6.2 in respect of such Goods.
6.6 Save as provided in this clause 6 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, executed.
3. EXTENT OF LIABILITY
7.1 Subject to clause 6.4, 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 these Terms or any Contract made under them shall, in respect of each delivery of the Goods in respect of which the liability arises, be limited to the price of such Goods.
7.2 The Company shall not in any circumstances have any liability whatsoever to the Customer for any indirect or consequential loss (including without limitation, loss of profit) arising out of or in connection with any breach or non-performance of these Terms or any Contract made under them, nor shall the Company have any liability to the Customer for any indirect or consequential loss (including without limitation, loss of profit) resulting from any tort, including without limitation, negligence or misinterpretation on the part of the Company, its employees or agents in any way related to the supply of Goods by the Company under these Terms or any Contract made under them.
7.3 Nothing in these Terms or in any Contract made under them shall limit the Company’s liability for death or personal injury arising out of its negligence.
8.1 These Terms and each Contract made under them is between the Company and the Customer as principals and shall not be assigned by the Customer without the Company’s prior written consent.
8.2 The Company shall not be liable for any failure in the performance of any of its obligations under these Terms and any Contract made under them caused by factors outside its control.
8.3 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.
8.4 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 Contracts.
8.5 These Terms and the Contracts made under them are each subject to the laws of England. The parties irrevocably submit to the non-exclusive jurisdiction of the Courts of England and Wales in respect of any claim dispute or difference arising out of or in connection with these Terms or any Contract made under them.
8.6 All notices addressed to the Company are to be served in writing by pre-paid first class post, sent by fax or e-mail in the English language to the Company registered office. Communications shall be deemed to have been received:
8.6.1 if sent by pre-paid first class post three days (excluding Saturdays, Sundays and bank holidays); or
8.6.2 if sent by fax or e-mail on a working day prior to 4.00pm, at the time of transmission and otherwise on the next working day.
8.7 All the terms of these Terms are set out in this document, and all other terms, conditions, indemnities and warranties, whether expressed or implied, statutory or otherwise, and all representations (save in respect of fraudulent misrepresentations) whether made orally or in writing are hereby excluded save to the extent that the same appear in these Terms, are specifically referred to in these Terms, or are specifically agreed hereafter in writing between the Company and the Customer and all prior agreements, negotiations and statements in respect of the matters contemplated in these Terms are hereby superseded. Without prejudice to the foregoing, the Company may notify the Customer of any changes to the terms of these Terms by not less than 30 days notice in writing.
8.8 A person who is not party to any contact made under these Terms (including any Contract) shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce such contract or any part of it.