Payment

(1) The Company may invoice the Customer for all sums payable under the Contract on or at any time after dispatch or, if the Customer wrongfully fails to collect or take delivery or to give proper delivery instructions, at any time after it has notified the Customer that they are ready for collection or it has tendered delivery of them. The time for payment will be of the essence.

(2) Unless payment is to be made on delivery, the Company’s invoices will be payable by the end of the month following the month in which the invoiced Goods are dispatched. If the Company has serious doubts about the Customer’s ability to pay any sum under the Contract on the due date the Customer will within seven days of written notice from the Company pay the balance of all sums payable or becoming payable under the Contract or provide security for such payment to the Company’s satisfaction pending which the Company may suspend the performance of all or any of its obligations under the Contract. [Where the Goods are to be delivered by installments as called off by the Customer over an agreed period payment must be made within 30 days following each call off. Any Goods not called off by the end of that period must be collected by the Customer ex works within 3 days of, and the price for them will become due on, the expiry of that period].

(3) A discount on the price of the Goods (excluding VAT and any delivery charges) will be allowed, as stated in the Company’s price list for the Goods on the date of the Contract, if all amounts payable by the Customer under the Contract have been paid to the Company by the date specified in the price list.

(4) If the Customer fails to make any payment on the due date, the Company may terminate the Contract or suspend any further deliveries, appropriate any payment by the Customer to such of the Goods as the Company decides and/or charge the Customer interest on the amount for the time being unpaid at 3% above the base rate (or if it is replaced, its successor) from time to time of The Royal Bank of Scotland Plc until payment in full is made. Such interest will accrue daily and be payable both before and after judgment.
iii) In the event our supplier will refuses to take these products, Northgate Lighting will also refuse.

(5) All sums payable by the Customer must be paid in sterling without any deduction and regardless of any set-off, counterclaim or other claim or right.

(6) If any sum due from the Customer pursuant to the Contract or any order or judgment relating to it has to be converted from the currency (“the first currency”) in which the same is payable into another currency (“the second currency”) to make any claim or obtain or enforce any order or judgment against the Customer, it will indemnify the Company against any loss suffered as a result of any discrepancy between (a) the rate of exchange used for such conversion and (b) the rate(s) of exchange at which the Company may in the ordinary course of business purchase the first currency with the second currency on receipt of a sum paid to it in or towards satisfaction of any such order, judgment or claim.

(7) Divisibility “ Where delivery is to be made by installments, each delivery shall be deemed for such purpose to be the subject of a separate contract and any failure whatsoever by Northgate Lighting in respect of any one delivery shall not entitle the Buyer to repudiate the contract or any installments remaining to be delivered there under.

(8) Please note we will not issue split box replacements for damage tubes, credits only.

Delivery

(1) The Company will use its reasonable endeavors to supply the Goods by any estimated delivery or completion date but the time for delivery or completion will not be of the essence of the Contract. The Goods will be delivered where stipulated by the Company.

(2) [Provided it has given at least 7 days’ notice,] the Company may deliver the Goods by installments as and when they are available. Where the Goods are or are to be delivered by installments, each delivery will constitute a separate contract.

(3) The method of delivery will be decided by the Company unless the Company agrees to the method required by the Customer, in which case the cost of delivery will be borne by the Customer.

(4) If the Customer fails to collect or accept delivery of the Goods or give proper delivery instructions (unless due to the Company’s default) the Company may arrange for storage of the Goods at the Customer’s risk and expense until they are delivered or collected (including if applicable storage charges at the Company’s then prevailing rates and the cost of any redelivery) or, if the Company terminates the Contract, sell the Goods in its discretion [notwithstanding that any of them or their packaging may bear any name or trade or mark (“Trade Marks”) of the Customer or (at the Customer’s request) any third party] and, after deducting from the sale proceeds all sale costs and other sums owing to the Company, retain any surplus for its own benefit. [The Customer will indemnify the Company against any claim, proceedings, costs, liabilities, loss, damage and expense incurred by the Company as a result of the Goods sold pursuant to this paragraph or paragraph 7(4) or their packaging bearing any of the Trade Marks].

Inspection and Acceptance of Goods

(1) The Customer must notify in writing (otherwise than on a delivery document)(a) the Company and any carrier of any claim regarding the quantity or condition of Goods delivered or any damage to them within [3] working days of delivery and for non delivery of the Goods within [3] working days of the date notified for delivery and (b) the Company of any claim regarding any defect which should be apparent on reasonable inspection within 3 working days of delivery, time being of the essence. Paragraph 8 will apply to any such defect or damage. If no such notice is given, so far as concerns those matters the Customer will be deemed to have accepted the Goods and that they conform with the Contract.

Rentention of Title and Ownership of Goods

(1) Notwithstanding delivery and the passing of risk or any other provision of these Conditions, the legal and beneficial ownership of the Goods will remain with the Company, until the Company has received payment in cleared funds of:
(a) all sums payable to the Company in relation to the Contract; and
(b) all other sums then due from the Customer to the Company in respect of the supply of any other goods or services.

(2) Until the property in the Goods has passed, the Customer shall:
(a) hold the Goods as fiduciary agent and bailee for the Company who may, at any time and without prior notice, require the Customer to deliver up the Goods to the Company (whether or not they form part of or are affixed to anything) and, if it fails to do so forthwith, enter upon any land or buildings where the Goods may be situated with its representatives and appropriate transport, remove them from any land, building or other thing and repossess the same. The Company will use reasonable skill and care in removing Goods but, subject to that, the Customer will be responsible for and indemnify the Company in respect of all damage to any land, building or other item caused by such removal;
(b) not, except for sales [or use] in the ordinary course of its business, sell, part with possession of [, use] or do anything else inconsistent with the Company’s ownership of the Goods and ensure they do not become part of or affixed to any land or building and are kept separate from any other thing, properly stored and protected, clearly identified as the Company’s property and insured to their replacement value against all normal comprehensive risks.

(3) After the Company has repossessed any Goods it may sell them and the sale proceeds will belong to the Company absolutely. If the net proceeds received by the Company are less than the amount payable to it under the Contract it may recover the balance from the Customer.

(4) Risk in the Goods will pass on delivery. All insurance proceeds receivable by the Customer in respect of the Goods shall be held in trust by the Customer for the Company in a separate account and first be applied in or towards discharging any sums payable under the Contract.

Warranty

(1) The Company warrants that the Goods will correspond with their specification and description and sample (if any) at the time of delivery and if within [twelve] calendar months of their being delivered (or such other period as the Company may agree in writing) any defect in the Goods is discovered under normal use which is directly attributable to their not so corresponding or faulty design, materials or workmanship, or a valid claim is made under paragraph 6, the Company will at its option and expense remedy the defect or damage by replacement or repair or refund the purchase price of the defective or damaged Goods.

(2) The warranty will be subject to the following conditions:
(a) it will not apply to any defect or damage resulting from any alteration of the Goods without the Company’s prior written consent, incorrect installation (except by the Company), overloading, normal wear and tear, misuse or use other than for the Goods’ intended purpose, accident, abnormal conditions of use, maintenance, repair or use which is not in accordance with the manufacturer’s instructions or procedures issued from time to time or any act or omission of the Customer or any third party (excluding the Company’s agents or sub-contractors involved in the supply of the Goods) or any fault in any other goods or equipment.
(b) The Company will not be liable for any defect in the Goods arising from any document, information or materials supplied by or for the Customer.
(c) The Goods have been assembled or incorporated into any other product or item by a qualified and competent electrician and any instructions issued by the Company.
(d) Warranty work will be carried out during the Company’s normal business hours so far as is practicable at the Company’s premises and/or elsewhere at its option. The Customer will procure that the Company’s personnel will have such access to the Goods as they may require to investigate alleged defects or damage and carry out any warranty work.
(e) Goods must be returned carriage paid to the Company’s trading premises as required by the Company. [The Company will reimburse the Customer the reasonable carriage costs incurred by it in returning by road from the Customer’s premises in Great Britain or by other agreed mode of transport Goods repaired or replaced under the warranty or whose purchase price is refunded] Replaced goods will belong to the Company.
(f) The Customer must give the Company in writing full particulars of any claim under paragraph 6 within the period stated there or under paragraph 8(1) within 7 days after it becomes aware of the claim and in any event within 7 days of the end of the warranty period (time being of the essence) no sum shall be due and unpaid under the Contract when the Company is to fulfill its obligations under the warranty.
(g) If the Customer makes any claim falling outside the terms of the warranty the Company may charge for examining the Goods and any work done or goods supplied by it in respect of that claim at its then prevailing rates and any cost or expense incurred by the Company.
(h) Paragraphs 8 and 9 will apply to Goods or components replaced or repaired under the warranty except that the warranty will apply to Goods or components replaced or repaired under the warranty for the balance of the original warranty period.

Liability

(1) The warranty will be in substitution for all other terms, warranties, and conditions, express or implied, statutory or otherwise in relation to the Goods (except for the Company’s title to them) which are hereby excluded to the fullest extent permitted by law.

2) The Company will not be liable in contract or tort (including negligence) or in any other way for:
(a) any consequential or indirect loss, liability or damage or any other claim for consequential compensation; or
(b) loss of any kind of profit, business, production or goodwill or anticipated savings or other benefits, or any costs, expenses or liability to any third party incurred by the Customer arising directly in the natural and ordinary course or indirectly from or in connection with the Contract or the Goods.

(3) Subject to paragraph 9(5), the Company’s liability for all compensation for Property Damage caused by the Goods in any one period of the Company’s insurance for Produce Liability and which results from any act or omission or negligence on the part of the Company in connection with the Contract or the Goods will be limited in aggregate to damages of an amount equal to £5,000,000 less the Company’s total liabilities in relation to all other claims for Product Liability made in respect of that period and which are covered by such insurance.

(4) Excluding its liability under paragraphs 8 and 9(3), the Company’s aggregate liability arising in contract or tort (including negligence) or otherwise howsoever for any loss, cost, damage, injury or liability (whether consequential, indirect or otherwise) resulting from or in connection with the Contract or the Goods will be limited to damages equal to the net invoice value of the Goods.

(5) The limits on the Company’s liability in paragraph 9(3) shall be exclusive of its legal liability to the Customer for legal costs and expenses relating to the liability concerned to the extent that they are covered by the Company’s insurance. The limit on liability in paragraph 9(4) shall be inclusive of such costs and expenses.

(6) [Unless the Contract is an international supply contract within section 26(3) of the Unfair Contract Terms Act 1977,] the [limitations on and] exclusions from liability contained in these Conditions will be subject to section 2(1) Unfair Contract Terms Act 1977 and will not apply to any liability for fraud.

(7) The Customer undertakes to indemnify the Company from and against all claims and proceedings brought against the Company by any third party arising from any act or omission on the part of the Customer (or any other person for whom it is vicariously liable) in relation to the Goods or their supply or alleging that the Company’s use of any document or information supplied by or for the Customer in relation to the Contract infringes any third party’s rights together with all expenses, costs (including legal costs on a full indemnity basis), damage, losses and liabilities incurred by the Company in connection with any such claims or proceedings.

(8) The Customer accepts the limitations on and exclusion from liability in these Conditions as reasonable and that without them the price of the Goods would have been materially increased and warrants that is not purchasing the Goods as a consumer (as defined in the Unfair Contract Terms Act 1977).

Termination

(1) Unless the context otherwise requires, any term or expression defined in the International Rules for the Interpretation of Trade Terms of the International Chamber of Commerce as in force at the date when the Contract is made (“Incoterms”) will have the same meaning in these Conditions, but if there is any conflict these Conditions will prevail.

(2) Where the Goods are supplied for export from the United Kingdom, the provisions of this paragraph 11 will (subject to any special terms agreed in writing between the parties) apply notwithstanding any other provision of these Conditions.

(3) Unless otherwise agreed in writing, the Goods will be delivered fob the air or sea port of shipment and the Company will not be obliged to give notice under section 32(3) Sale of Goods Act 1979.

(4) The Customer will be responsible for complying with all legislation or regulations (including obtaining at its own cost all necessary licenses and authorities) governing the importation of the Goods into countries of destination outside the United Kingdom and for payment of all taxes and duties in relation thereto.

(5) Delivery of the Goods or any installment will be subject to the granting of all necessary export licenses and the Customer will provide all necessary assistance and information to the Company to enable it to apply for or obtain them. The Company will not be liable for any loss, damage, liability or expense whatsoever arising from any delay in obtaining or failure to obtain any export licenses. Where Goods are ordered for export from the Customer’s address in the United Kingdom or by the Customer’s agent in the United Kingdom the Customer or its agent will be responsible for obtaining such licenses.

Miscellaneous

(1) The Company will not be deemed to be in breach of the Contract or otherwise be liable to the Customer for any delay or failure in performing any of its obligations under the Contract by reason of any cause or event beyond the Company’s reasonable control (including breakdown of plant or machinery, strike or industrial dispute, shortage of materials or failure of or delay in receiving supplies).

(2) The Contract will be governed by the laws of England and all claims and proceedings arising relating to it will be subject to the non-exclusive jurisdiction of the Courts of England.

(3) Any variation of the Contract or waiver of any breach by the Customer must be agreed to in writing by the Company’s authorised representative. Any time or indulgence given by the Company will not in any way prejudice any of its rights in respect of the Contract.

(4) If any provision of the Contract or part of it is held to be invalid or unenforceable by any court or other body of competent jurisdiction that will not affect the other provisions or the remainder of the relevant provision.

(5) The Customer may not assign or otherwise deal with all or any of its rights or obligations in relation to the Contract without the Company’s prior written consent but the Company will be free to do so.

(6) The Company’s rights under these Conditions are cumulative and in addition to its other rights.

(7) Any notice or claim under the Contract must be in writing and will be effectively served if it is personally delivered or sent by pre-paid first class post or facsimile transmission to the addressee at its address overleaf or any other address for service notified to the other party in accordance with this paragraph.

Goods remain the property of Northgate Lighting Ltd until paid for in full.