Lumifil UK Limited’s EU Conditions of Sale

The customer’s attention is drawn in particular to clause 8 (Limitation of Liability) and clause 10 (Force majeure).

  1. Interpretation
    • Definitions:
  • Applicable Laws: all applicable laws, statutes, regulations, and codes from time to time in force.
  • Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
  • Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
  • Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 4.
  • Contract: the contract between the Supplier and the Distributor for the sale and purchase of the Products in accordance with these Conditions.
  • Delivery Location: has the meaning given in clause 4.2.
  • Distributor: the person or firm who purchases the Goods from the Supplier.
  • Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
  • Losses: all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses).
  • Products: the goods (or any part of them) set out in the Order.
  • Purchase Order: in the Customer’s purchase order form, the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.
  • Representatives: a party’s employees, officers, representatives, contractors, subcontractors or advisers
  • Specification: the specification for the Products issued by the Supplier from time to time.
  • Supplier: Lumifil UK Limited (registered in England and Wales with company number 12646628) and with registered address, Unit 1 Gemini 8 Business Park, Charon Way, Warrington, United Kingdom, WA5 7AE.

 

  • Interpretation:
    • A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
    • A reference to a party includes its personal representatives, successors and permitted assigns.
    • A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.
    • Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
    • A reference to writing or written excludes fax but not email.

  1. Basis of contract
    • These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
    • The Purchase Order constitutes an offer by the Distributor to purchase the Products in accordance with these Conditions. The Distributor must ensure that the terms of the Purchase Order and any applicable Specification submitted by the Distributor are complete and accurate.
    • The Purchase Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point and on which date the Contract shall come into existence.
    • The Distributor waives any right it might have to rely on any term endorsed upon, delivered with or contained in any documents of the Distributor that is inconsistent with these Conditions.
    • Any samples, drawings, descriptive matter or advertising produced by or on behalf of the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures (whether digital or otherwise) are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the Contract nor have any contractual force.
    • A quotation for the Products given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 10 Business Days from its date of issue.

  1. Products
    • The Products are described in the Supplier’s current Specification.
    • The Supplier reserves the right to amend the Specification if required by any Applicable Laws or regulatory requirement, and shall notify the Distributor in any such event.
    • The Distributor shall not:
      • relabel, re‑pack or alter any packaging, instructions for use, safety information or warnings supplied with the Products; or
      • make, publish or use any description, claim, comparison or representation about the Products (including performance, composition or intended use), except where the content is expressly approved in writing by the Supplier or required by Applicable Laws.

  1. Delivery
    • The Supplier shall ensure that:
      • each delivery of the Products is accompanied by a delivery note that shows the date of the Purchase Order, the type and quantity of the Products (including the code number of the Products, where applicable), special storage instructions (if any) and, if the Products are being delivered by instalments, the outstanding balance of Products remaining to be delivered; and
      • it states on the delivery note if it requires the Distributor to return any packaging materials, in which case the. The Distributor shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
    • The Distributor shall collect the Products from the Supplier’s premises at Unit 1 Gemini 8 Business Park, Charon Way, Warrington, WA5 7AE or such other location as may be advised by the Supplier in writing prior to delivery (Delivery Location) within three Business Days of the Supplier notifying the Distributor that the Products are ready.
    • Delivery is completed on the completion of loading of the Products at the Delivery Location.
    • Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Distributor’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 fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Distributor in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Products. The Supplier shall not be liable for any failure to deliver the Products that is caused by a Force Majeure Event or the Distributor’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 Distributor fails to take delivery of the Products within three Business Days of the Supplier notifying the Distributor in writing that the Products are ready for delivery, then, except where such failure is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract in respect of the Products:
      • delivery of the Products shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Distributor that the Products were ready; and
      • the Supplier shall store the Products until actual delivery takes place, and shall, without limiting its rights, be entitled to charge the Distributor for all related costs and expenses (including insurance).
    • If ten Business Days after the date on which the Supplier notified the Distributor that the Products were ready for delivery the Distributor has not taken actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Products and, without limiting its rights and after deducting reasonable costs and expenses related to storage (including insurance) and selling, charge the Distributor for any shortfall below the price of the Products.
    • If the Supplier delivers up to and including 5% more or less than the quantity of Products ordered the Distributor may not reject them, but on receipt of notice in writing from the Distributor that the wrong quantity of Products was delivered, the Supplier shall make a pro rata adjustment to the invoice for the Products.
    • The Supplier may deliver the Products by instalments, which it shall invoice and which the Distributor shall pay for separately. Each instalment shall constitute a separate contract. Any delay in delivery of or defect in an instalment shall not entitle the Distributor to cancel any other instalment.

  1. Quality
    • The Supplier warrants that on delivery, the Products shall:
      • conform in all material respects with the Specification; and
      • be free from material defects in design, material and workmanship.
    • Subject to clause 3, if:
      • the Distributor gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 1;
      • the Supplier is given a reasonable opportunity of examining such Products; and
      • the Distributor (if asked to do so by the Supplier) returns such Products to the Supplier’s place of business at the Distributor’s cost, the Supplier shall, at its option and to the extent that it agrees that such Products do not comply with the warranty set out in clause 5.1, replace the defective Products, or refund the price of the defective Products in full.
  • The Supplier shall not be liable for the Products’ failure to comply with the warranty set out in clause 1 if:
    • the Distributor makes any further use of such Products after giving notice in accordance with clause 2;
    • the defect arises because the Distributor failed to follow the Supplier’s oral or written instructions as to the storage or use of the Products or (if there are none) good trade practice regarding the same;
    • the defect arises as a result of the Supplier following any drawing, design or specification supplied by or on behalf of the Distributor;
    • the Distributor alters such Products without the written consent of the Supplier;
    • the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
    • the Products differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
  • Except as provided in this clause 5, the Supplier shall have no liability to the Distributor in respect of the Products’ failure to comply with the warranty set out in clause 1.
  • The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
  • These Conditions shall apply to any replacement Products supplied by the Supplier.

  1. Title and risk
    • The risk in the Products shall pass to the Distributor on completion of delivery.
    • Title to the Products shall not pass to the Distributor until the earlier of:
      • the Supplier receives payment in full (in cash or cleared funds) for the Products and any other goods that the Supplier has supplied to the Distributor in respect of which payment has become due, in which case title to the Products shall pass at the time of payment of all such sums; and
      • the Distributor resells the Products, in which case title to the Products shall pass to the Distributor at the time specified in clause 4.
    • Until title to the Products has passed to the Distributor, the Distributor shall:
      • store the Products separately from all other goods held by the Distributor so that they remain readily identifiable as the Supplier’s property;
      • not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
      • maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
      • notify the Supplier immediately if it becomes subject to any of the events listed in clause 1(b) to clause 9.1(d); and
      • give the Supplier such information as the Supplier may reasonably require from time to time relating to:
        • the Products; and
        • the Distributor’s ongoing financial position.
      • Subject to clause 5, the Distributor may resell or use the Products in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Products. However, if the Distributor resells the Products before that time:
        • it does so as principal and not as the Supplier’s agent; and
        • title to the Products shall pass from the Supplier to the Distributor immediately before the time at which resale by the Distributor occurs.
      • At any time before title to the Products passes to the Distributor, the Supplier may:
        • by notice in writing to the Distributor, terminate the Distributor’s right under clause 4 to resell the Products or use them in the ordinary course of its business; and
        • require the Distributor to deliver up all Products in its possession and control that have not been resold or irrevocably incorporated into another product, and if the Distributor fails to do so promptly, enter any premises of the Distributor or of any third party where the Products are stored, to recover them. The Distributor shall procure entry to any such third party’s premises if requested to do so by the Supplier.

  1. Price and payment
    • The price of the Products shall be the price set out in the Purchase Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
    • The Supplier may, by giving notice in writing to the Distributor at any time up to 21 days before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
      • any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
      • any request by the Distributor to change the delivery date(s), quantities or types of Products ordered, or the Specification; or
      • any delay caused by any instructions of the Distributor or failure of the Distributor to give or delay by the Distributor in giving the Supplier adequate or accurate information or instructions.
    • The price of the Products:
      • excludes amounts in respect of value added tax (VAT), which the Distributor shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice;
      • excludes the costs and charges of packaging, insurance and transport of the Products, which shall be invoiced to the Distributor; and
      • where the Distributor requires a certificate of origin, export documentation or similar documentation, the Distributor shall request this in the Order, and the Distributor shall bear all associated costs, including fees for any amendments required after issue.
    • The Supplier may invoice the Distributor for the Products at any time including prior to delivery pursuant to clause 3.
    • The Distributor shall pay each invoice submitted by the Supplier:
      • prior to collection of the Products or in accordance with any credit terms agreed in writing by the Supplier; and
      • in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
  • If the Distributor fails to make a payment due to the Supplier under the Contract by the due date, then without limiting the Supplier’s remedies under clause 9, the Distributor shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6 will accrue each day at 2% a year above the Bank of England’s base rate from time to time, but at 2% a year for any period when that base rate is below 0%.
  • All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

  1. Limitation of liability
    • The limits and exclusions in this clause 8 reflect the insurance cover the Supplier has been able to arrange. The Distributor is responsible for making its own arrangements for the insurance of any excess liability.
    • References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, breach of statutory duty, tort (including negligence), misrepresentation, restitution or otherwise.
    • Nothing in the Contract limits or excludes any liability for:
      • death or personal injury caused by negligence;
      • fraud or fraudulent misrepresentation;
      • breach of the terms implied by section 12 of the Sale of Goods Act 1979;
      • defective products under the Consumer Protection Act 1987;
      • the Distributor’s payment obligations under the Contract; or
      • any liability that cannot legally be limited or excluded.
    • Subject to clause 3, the Supplier’s total liability to the Distributor shall not exceed 100% of the price of the Products supplied under the Contract.
    • Subject to clause 3, the Supplier shall not be liable for the following types of losses:
      • loss of profits (including loss of anticipated savings);
      • loss of sales or business;
      • loss of agreements or contracts;
      • loss of use or corruption of software, data or information;
      • loss of or damage to goodwill; whether direct or indirect, and
  • indirect, special or consequential loss.
  • This clause 8 shall survive termination of the Contract.

  1. Termination
    • Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
      • the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of it being notified in writing to do so;
      • the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
      • the other party suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
      • the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
    • Without limiting its other rights or remedies, the Supplier may suspend supply of the Products under the Contract or any other contract between the Distributor and the Supplier if the Distributor becomes subject to any of the events listed in clause 1(b) to clause 9.1(d), or the Supplier reasonably believes that the Distributor is about to become subject to any of them, or if the Distributor fails to pay any amount due under this Contract on the due date for payment.
    • Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Distributor if the Distributor fails to pay any amount due under the Contract on the due date for payment and remains in default for 7 days after being notified in writing to make such payment.
    • On termination of the Contract for any reason, the Distributor shall immediately pay to the Supplier all of the Supplier’s unpaid invoices and interest and, in respect of Products supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which the Distributor shall pay immediately on receipt.
    • Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
    • Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
  2. Force majeure

Neither party shall be liable for any delay or failure in the performance of its obligations for so long as, and to the extent that, such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for 30 days, the party not affected may terminate the Contract by giving not less than 30 days’ written notice to the affected party.

  1. General
    • Assignment and other dealings.
      • The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
      • The Distributor shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
    • Confidentiality
      • Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 2(b).
      • Each party may disclose the other party’s confidential information:
        • to its Representatives who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 2; and
        • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
      • Neither party may use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
    • Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
    • No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    • Except as set out in clause 2.4, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
    • If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under this clause 11.6, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
      • Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
        • delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
        • sent by email to the following addresses (or an address substituted in writing by the party to be served):

Supplier: [email protected]

Distributor: As documented within the exclusive distribution agreement.

  • Any notice shall be deemed to have been received:
    • if delivered by hand, at the time the notice is left at the proper address;
    • if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
    • if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
  • This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  • Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
  • Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this Contract.
  • Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.