Terms and Conditions of Sale
a) In these Terms & Conditions of Sale the following definitions and rules shall apply:
Company means ROXO Lighting brand of Indelague – Indústria Eléctrica de Águeda, S.A.;
Contract means together the Quotation, Order Acknowledgment and these Conditions of Sale;
Goods mean any item of whatever nature sold or to be sold or supplied by the Company to the Purchaser including services;
Purchaser means the person, firm or corporate body which purchases or has agreed to purchase the Goods;
Incoterm means company would use Ex-work term on despatch only any different terms would require conformation by Purchaser in writing.
Quotation means the Company’s priced offer to the Purchaser for Goods or services;
Order Acknowledgement means the Company’s confirmation detailing the order placed by the Purchaser with the Company.
b) Words in the singular include the plural and in the plural include the singular.
c) 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.
2. APPLICATION OF CONDITIONS
a) These Terms & Conditions of Sale shall apply to and form part of every Contract entered into by the Company to the exclusion of all other terms and conditions (including any terms which the Purchaser purports to apply under any purchase order, confirmation of order, specification or other document).
b) Each purchase order or acceptance of a Quotation for Goods by the Purchaser from the Company shall be deemed to be an offer by the Purchaser to purchase Goods subject to these conditions of sale.
c) Any Quotation is given on the basis that no Contract shall come into existence until the Company despatches an Order Acknowledgement to the Purchaser.
3. LIMITS OF CONTRACT
The Contract includes only such Goods as are specified in the Order Acknowledgement accompanying these Term & Conditions of Sale.
a) The price payable for Goods shall, unless otherwise stated by the Company in writing, be the list price of the Company current at the date of despatch of the Goods (or instalment of the Goods if the Goods are to be delivered in instalments).
b) Unless otherwise expressly stated to be firm for a period, the Company’s prices are subject to variation to take account of variations in wages, materials and other costs. The Company accordingly reserves the right to adjust the price without notice by the amount of any increase or decrease in such costs after the price is quoted.
c) All prices are exclusive of any Value Added Tax and all costs or charges in relation to loading, unloading, carriage and insurance unless the same is otherwise stated elsewhere in the Contract, all of which amounts the Purchaser shall pay to the Company in addition to the price of the Goods.
d) Unless otherwise agreed in writing previously, between the Company and the Purchaser, the prices provided by the Company in the quotations sent to the Purchaser, will be based on the Incoterm Ex-Works.
a) Unless otherwise agreed in writing, payment is due immediately (in full and cleared funds) on delivery. The Company may agree (at its absolute discretion) not to enforce this provision for an agreed period of time from the date of delivery.
b) Unless otherwise agreed in writing previously, where the Contract provides for delivery in instalments, each instalment shall be considered as a separate Contract for the purpose of this Condition 5.
c) Time for payment shall be of the essence.
d) No payment shall be deemed to have been received until the Company has received cleared funds.
e) Without prejudice to any other rights it may have, the Company is entitled to charge interest at 2% above the current base rate of The National Bank on overdue payments from the due date for payment accruing on a daily basis until payment is made, whether before or after any judgment. If the Company has exercised its discretion under Condition 5 (a) above, then it may (in its absolute discretion) waive its right to interest for the same period as referred to in Condition 5(a).
f) Additionally and without prejudice to its other rights, the Company shall be entitled to recover all direct expenses reasonably incurred by the Company in collecting or attempting to collect any outstanding payments from the Purchaser.
g) The Purchaser shall make all payments due under the Contract in full without deduction whether by way of set off, counterclaim, discount, abatement or otherwise unless the Purchaser has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Purchaser.
h) If the Purchaser fails to make any payment when due in accordance with these Terms & Conditions of Sale, the Company reserves the right in its absolute discretion and without prejudice to any of its other rights or remedies, to suspend all further deliveries until such payment has been made in full, or at the Company’s option, to cancel the balance of the order. In either case, the Company shall hold the Purchaser liable for costs incurred in respect of Goods which are in the course of manufacture or ready for despatch.
6. INDEMNITY OF THE PURCHASER
The Purchaser shall indemnify the Company in respect of any loss, cost or expense incurred by the Company as a result, directly or indirectly, of the Purchaser’s instructions or lack of instructions or through any failure or delay whatsoever in taking delivery or through any other act, neglect or fault on the part of the Purchaser, its servants, agents or employees.
Any Contract shall be subject to the Company being satisfied as to the Purchaser’s credit references and credit status from which the Company may (in its absolute discretion), having informed the Purchaser that the Goods are ready for despatch, refrain from delivering the Goods until such time as the Purchaser tenders payment for the Goods in cleared funds to the Company together with any outstanding amounts which may be due to the Company on any account held by the Purchaser or a person, firm or company associated with the Purchaser whatsoever.
Where it is necessary to despatch Goods in crates, cases, special pallets, or other such packing different from the one used by the Company as standard, resulting from a specific demand from the Purchaser, a charge may be made for this.
a) Where the value of any order exceeds a previously agreed value between the Company and the Purchaser, the cost of delivery of the Goods to the Purchaser’s premises will not be included in the price of the Goods, and will be assumed by the Company. For orders whose value is inferior to that previous agreed value, all delivery will be at the Incoterm mentioned as standard in this contact.
b) Unless agreed in writing by the Company, all times and dates of delivery of the Goods are given in good faith but are approximate only and shall not be of the essence.
c) All times and dates for delivery shall be calculated from the date of acceptance by the Company of the purchase order of the Purchaser, or from the date of receipt by the Company from the Purchaser of all information, instructions and drawings as shall be necessary to enable the Company to carry out the purchase order, whichever shall be the later.
d) Unless otherwise stated in writing, the Company shall be entitled to make partial deliveries of the Goods.
e) 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 Purchaser to terminate or rescind the Contract unless such delay exceeds 60 days.
f) No delivery is made unless agreed in writing with company regarding tailgate truck at Purchaser expense.
10. NON DELIVERY OR DAMAGE IN TRANSIT
a) When the price quoted includes delivery, the Company shall repair or replace free of charge, Goods damaged in transit or not delivered in accordance with the Order Acknowledgement, provided that the Company is given written notification of such damage or non-delivery within such time (being not more than 1 working day), as will enable the Company to comply with the carrier’s conditions of carriage as affecting loss or damage in transit, The Purchaser or any person authorized by it is liable to take over the goods which is visibly marked as shipment for the Purchaser and is delivered in accordance with the accepted order and in taking over the goods, he is liable to check the goods and confirm, by his signature, the taking over of the goods on the delivery note which must show the serial number of the delivery note, identification of the Purchaser, the type and quantity of the delivered goods, the date and place of delivery. The parties agree that confirmation of delivery of the goods is a required condition for fulfilment of all Purchaser´s obligations.
Or, where delivery is made by the Company’s own transport, within 1 working day after receipt of the Goods.
b) Notwithstanding the above undertaking, the Company will only consider claims for alleged shortage if they are received within 2 working days of the receipt of Goods by the Purchaser, together with sufficient information to enable the Company properly to identify the shortage including the Order Acknowledgment number, case number and condition of the case.
c) Any liability for non-delivery of the Goods or damage in transit 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.
d) If the Purchaser fails to give notice in accordance with Condition 10(a) the items delivered shall be deemed to be in all respects in accordance with the Contract and the Purchaser shall be bound to accept and pay for the same accordingly and all claims in respect of non-delivery, loss, damage, defect or non-compliance (save as set out in Condition 16) shall be wholly rejected.
a) The Company shall be under no obligation to alter or vary any part of the Contract or any work connected there in. Any alteration to or amendment or other variation of the specification, including any increase or decrease in the quantity of the Goods or any alteration to any drawing or to the quality performance, weight or measurements of any Goods or any alteration or variation of advised delivery schedules, shall, if requested by the Purchaser, be subject to the agreement of the Company with such alteration or addition to the price and to delivery dates or schedules as may be required by the Company and shall not be binding upon the Company unless and until accepted by the Company in writing.
b) In the event of any variation or suspension of the work at the Purchaser’s instructions or lack of instructions, the Company shall be entitled to adjust the contract price to reflect any additional costs incurred, and to adjust delivery dates or schedules.
If the Company does not receive forwarding instructions sufficient to enable it to despatch the Goods within fourteen days after notification that the Goods are ready for delivery or that they have been tested under Condition 14, risk in the Goods shall pass to the Purchaser (including all loss or damage caused by the Company’s negligence) and the Purchaser shall thereupon take delivery or arrange for storage. If the Purchaser does not take delivery or arrange for storage, the Company shall be entitled to invoice the Purchaser and be paid for the Goods as though the Goods had been duly delivered in accordance with the Contract and the Company may arrange storage either at the Company’s own works or elsewhere on the Purchaser’s behalf and all charges incurred by the Company as a result of such delay including storage and insurance, shall be payable by the Purchaser.
Any data, technical information or performance figures provided by the Company are based on tests performed under standard testing conditions at the Company’s premises, or at an independent laboratory. They are believed to be accurate but cannot be guaranteed under different conditions.
14. INSPECTION & TESTS
a) The Company’s products are carefully inspected and where practicable submitted to its standard tests at the Company’s works before despatch.
b) If tests other than those specified or tests in the presence of the Purchaser or its representatives are required, the Purchaser will be responsible for the costs of such additional tests. In the event of any delay on the Purchaser’s part in attending tests after the Purchaser has received seven day’s notice that the Company is ready to perform the tests, the tests will proceed in the Purchaser’s absence and the Purchaser accordingly hereby agrees to accept and pay for such tests as if they had been performed in the Purchaser’s presence.
15. DESCRIPTIVE MATTER & ILLUSTRATIONS
a) All descriptions and illustrations and particulars of weights and dimensions issued by the Company in catalogues, price lists, advertising matter and forwarding specifications are by way of general description and approximate only and shall not form part of any contract or give rise to any liability on the part of the Company.
b) It is the policy of the Company to endeavour to develop and improve its products and accordingly the Company reserves the right to change all specifications without prior notification or public announcement pursuant to such policy.
16. QUALITY AND WARRANTY
a) The Company will make good by repair, or at the Company’s option by supply of replacement Goods, defects which under proper storage and use appear in the Goods either on delivery or within the period of 24 calendar months from the date of delivery and which arise solely from faulty design (other than design made or furnished by the Purchaser), materials or workmanship.
b) The Company’s liability under this clause shall be in lieu of any warranty or condition implied by law as to the quality or fitness for any particular purpose of the Goods, and save as provided in this clause the Company shall not be under any liability, whether in contract, tort or otherwise, in respect of defects in goods delivered or for any injury damage or loss resulting from such defects or from any work done in connection therewith provided, however, that nothing in this clause shall operate to exclude any warranty or condition implied by law as to the quality of the Goods in the event that the Goods when sold by the Purchaser or when sold by any person or persons to whom the Purchaser may sell the Goods, shall become the subject of a consumer sale.
c) The Warranty given in this Condition is subject to the following provisions, namely:
(I) that the Purchaser shall have followed all instructions issued by the Company in relation to the Goods;
(II) that in the case of defects which would have been reasonably apparent to the Purchaser on reasonable examination of the Goods on delivery, the Purchaser shall notify the Company of the defects in writing within 2 working days of delivery;
(III) that in the case of any other defects, the Purchaser shall notify the Company of the defects in writing within seven working days of the date when the defect becomes apparent;
(IV) that on discovery of any defect the Purchaser makes no further use of the Goods.
d) Any replacement Goods shall be warranted against all construction or material defects, for a period of two years, on all non LED products, LED products carry a 5 year guaranteed, this does not include damage due to a transportation or handling-related accident, or tow incorrect use, or to modification of our equipment.
e) If the Company complies with this Condition 16 it shall have no further liability in relation to the defect. In particular it shall not be liable for any costs, claims, damages or expenses arising out of any tortuous act or omission or any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals or by reference to accrual or such costs, claims, damages or expenses on a time basis.
f) In what regards the costs of repairing the Goods, made ??by the Purchaser, the Company will only be responsible to assume or share these costs, if the Company has previously agreed in writing, before making these repairs.
g) TheCompany will warranty all emergency luminary’s inverters for 2 years and the emergency batteries for 1 year only, subject to full emergency lighting test procedures been conducted to BS 5266-1 and by Register persons qualified to test and certify Emergency Lighting IS3217.
17. LIMITATION OF LIABILITY
Subject to Condition 16(b) 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 the Company shall not be liable to the Purchaser 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.
18. RETURN OF GOODS
Under no circumstances may goods supplied against a firm purchase order be returned without the Purchaser must have first applied for and obtained the written consent of the Company. A handling charge may be deducted from any credit allowed by the Company where it is established that the returned Goods were not defective or the return was not due to any error on the part of the Company.
19. INTELLECTUAL PROPERTY
The Purchaser will indemnify the Company against all damages, penalties, costs, losses and expenses suffered by the Company for which it may become liable in respect of the infringement of any intellectual property including (but without limitation) any patent, copyright, registered design, trade mark, trade name or know-how arising out of the Company’s manufacture of goods in accordance with any specification design drawings or other data supplied by the Purchaser or its servants or agents.
20. OWNERSHIP OF COPYRIGHT
All drawings, descriptions and other information submitted by the Company together with the copyright therein shall remain the property of the Company.
21. FORCE MAJEURE AND OTHER CIRCUMSTANCES
The Company shall be entitled without liability on its part and without prejudice to its other rights, to terminate the contract or any unfulfilled part thereof, or at its discretion suspend or make partial deliveries or extend the time or times for delivery, if the manufacture of the Goods by the Company or the Company’s suppliers, or the delivery of the Goods or the performance by the Company of any of its obligations under the Contract is hindered or delayed whether directly or indirectly due to circumstances beyond the reasonable control of the Company including, without limitation, the Purchaser failing to furnish necessary instructions or information, war or other hostilities, acts of terrorism, civil commotion, fire, explosion, flood, epidemic, acts of God, government action or legislation, interruption of transport, strike, lock out or other form of industrial action (including, without
limitation, labour disputes with the Company’s or any subcontractor’s employees), accidents or stoppages to works, shortage of labour, materials, equipment, fuel or power, breakdown of machinery, whether or not such cause exists at the date of the order provided that, if the event in question continues for a continuous period in excess of 180 days, the Purchaser shall be entitled to give notice in writing to the Company to terminate the Contract.
22. PASSING OF PROPERTY AND RISK
a) From the time of delivery, the Goods shall be at the Purchaser’s risk who shall be solely responsible for their custody and maintenance but, unless otherwise expressly agreed in writing, the Goods shall remain the Company’s property until all payments to be made by the Purchaser under the Contract and all other sums which are due or become due to the Company from the Purchaser on any account have been made in full (in cash or cleared funds) and unconditionally. Whilst the Company’s ownership continues the Purchaser shall keep the Goods labelled as belonging to the Company and separately identifiable from all other goods in its possession as bailiff for the Company.
b) The Purchaser may only re-sell the Goods to the Purchaser’s customers in the ordinary course of the Purchaser’s business on a fiduciary basis for the Company. In the event of any resale by the Purchaser of the Goods the Company’s beneficial entitlement shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefore shall be assigned to the Company and until such assignment shall be held on trust in a separate identified account for the Company by the Purchaser and such proceeds shall not be incorporated with other monies or paid into any overdrawn bank account and shall at all times be identifiable as the Company’s monies.
c)Without prejudice to the equitable rules as to tracing, in the event of failure to pay the price in accordance with the Contract or the insolvency or similar of the Purchaser as defined below in Condition 24 the Company shall have the power to enter any premises where the Goods are or may be stored to inspect or, where the Purchaser’s right to possession has terminated, to recover and re-sell the Goods, such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise.
d) Pending payment of the full purchase price of the Goods the Purchaser shall at all times keep the Goods comprehensively insured against loss or damage by accident, fire, theft and other risks usually covered by insurance in the type of business carried on by the Purchaser in an amount at least equal to the balance of the price for the same from time to time remaining outstanding. On request the Purchaser shall produce the policy of the insurance to the Company.
e) To enable the Company to recover the Goods in accordance with Condition 23(c) the Purchaser grants to the Company, its agents and employees an irrevocable licence at any time to enter upon any premises in the ownership, possession or control of the Purchaser to recover the Goods.
f) If the Contract is terminated by the Company in accordance with Condition 24, the Company’s rights contained in this Condition 23 shall remain in effect.
23. INSOLVENCY OF PURCHASER
a) This Condition applies if: -
(I) the Purchaser becomes insolvent or makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or a firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or: -
(II) an encumbrance takes possession, or a receiver or administrative receiver is appointed, of any of the property or assets of the Purchaser; or
(III) the Purchaser ceases, or threatens to cease, to carry on business; or
(IV ) the Company reasonably suspects that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly.
b) If this Clause applies, then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without liability to the Purchaser, and if the Goods have been delivered but not paid for, the price shall become immediately due and payable not withstanding any previous agreement or arrangement to the contrary.
If any question, dispute or difference whatsoever shall arise between the Purchaser and the Company upon or in relation to or in connection with the Contract, either party may give the other notice in writing of the existence of such question, dispute or difference, and the same shall be referred to the arbitration of a person to be mutually agreed upon. A submission to arbitration under this Condition 25 shall be deemed to be a submission to a sole arbitrator pursuant to any statutory modification or re-enactment thereof.
a) The Contract shall be governed by Portuguese Law and the parties submit to the non-exclusive jurisdiction of the any Courts within the EU.
b) If any provision of this 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 that 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.
c) The parties to the Contract do not intend that any term of the Contract shall be enforceable by the virtue of the Contracts by any person that is not a party to it.
d) The Contract constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between the Company and the Purchaser relating to the subject matter of this agreement save that nothing in this Condition 26(d) shall limit or exclude any liability for fraud or fraudulent misrepresentation.
e) LED components are, as a result of silicon innovation, currently subject to fast rate of change. The Company therefor reserves the right to change components of light, fitted with LED’s as part of additional or replacement delivery.
f) Directive 2002/96/CE Company governed by directive 2002/96/EC, responsibility for recovery and recycling at the end of product’s service life is transferred to the end Client/Holder.