The customer's attention is drawn in particular to the provisions of clause 10.
1.1Definitions. In these Conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.2.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Customer Requirements: any plans drawings designs logos packaging, branding or other requirement of the Customer.
Force Majeure Event: has the meaning given in clause 11.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer's order for the Goods, as set out in the Order Acknowledgment.
Order Acknowledgement: the Supplier's acknowledgement of the order either by way of an invoice, delivery note or confirmation or order issued for any sales through the Supplier's website.
Specification: any specification for the Goods produced by the manufacturer of the Goods and referred to in the Suppliers catalogues and materials produced to the Customer.
Supplier: Three-Sixty Optical Limited (Company number 09045310)
1.2Construction. In these Conditions, the following rules apply:
(a)A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b)A reference to a party includes its personal representatives, successors or permitted assigns.
(c)A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d)Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e)A reference to writing or written includes faxes and emails.
2.Basis of contract
2.1These 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 trade, custom, practice or course of dealing.
2.2The Order, whether made verbally by telephone, in writing by fax or e-mail, or by completing an online order form, constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any Customer Requirements are complete and accurate and any applicable Specification is appropriate for the Customers requirements.
2.3The Order shall only be deemed to be accepted when the Supplier issues an Order Acknowledgement, at which point the Contract shall come into existence.
2.4The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3.1Subject to clauses 2.5 and 3.2 to 3.4 the Goods are described in the Supplier's catalogue.
3.2The images of the Goods on our website are for illustrative purposes only. Although we have made every effort to display the products accurately, your Products may vary from those images.
3.3Although we have made every effort to be as accurate as possible, all sizes, weights, capacities, dimensions and measurements indicated on our website are general guidance only.
3.4The packaging of the Goods may vary from that shown on images on our website.
3.5To the extent that the Supplier agrees to incorporate the Customer Requirements into the manufacture production or packaging of any Goods, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Customers Requirements. This clause 3.2 shall survive termination of the Contract.
3.6The Supplier reserves the right to amend the Specifications of the Goods or the Customer Requirements if required by any applicable statutory or regulatory requirements of if amendments are made by the manufacturers of those Goods.
4.1The Supplier shall ensure that:
(a)each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b)if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer 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.
4.2The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
4.4Any 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 Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. The Customer acknowledges that the delivery of the Goods may also be subject to and affected by regulations and requirements of the MHRA relating to the transportation of medicinal Goods.
4.5If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6If the Customer fails to take delivery of the Goods within 3 Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:
(a)delivery of the Goods shall be deemed to have been completed at 5 p.m. on the next Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
(b)the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1The Supplier warrants that on delivery the Goods shall:
(a)conform in all material respects with their Specification;
(b)be free from material defects in design, material and workmanship;
(c)be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d)be fit for the purpose for which the Goods are intended to be used as set out in the Specification.
5.2Subject to clause 5.3, if:
(a)the Customer gives notice in writing to the Supplier within 28 days that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b)the Supplier is given a reasonable opportunity of examining such Goods; and
(c)the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3The Supplier shall not be liable for Good's failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a)the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2; or
(b)the defect arises because the Customer failed to follow the Supplier's or the Manufacturer's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same; or
(c)the defect arises as a result of the Supplier following any drawing, design or Customer Requirements supplied by the Customer; or
(d)the Customer alters or repairs such Goods without the written consent of the Supplier; or
(e)the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f)the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5The 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.
5.6These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6.1The risk in the Goods shall pass to the Customer on completion of delivery.
6.2If the customer arranges its own delivery or collection of the Goods, the risk passes to the Customer when the Goods are collected from the Supplier's premises.
6.3Title to the Goods shall not pass to the Customer until the earlier of:
(a)the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b)The Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.4Until title to the Goods has passed to the Customer, the Customer shall:
(a)store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b)not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c)maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d)notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.2; and
(e)give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.5Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a)it does so as principal and not as the Supplier's agent; and
(b)title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.6If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2 then, without limiting any other right or remedy the Supplier may have:
(a)the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b)the Supplier may at any time:
(i)require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii)if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7.1The price of the Goods shall be the price set out in the Order Acknowledgement.
7.2We will make all reasonable efforts to ensure that prices on our website catalogues and sales material are accurate, but we reserve the right to increase prices in accordance with clause 7.3.
7.3The Supplier may be obliged to increase prices set out in its catalogue, website or sales material to reflect any increase the price of the Goods that is due to:
(a)any factor beyond the Supplier's control (including but not limited to foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); or
(b)any request by the Customer to change the delivery date(s), quantities or types of Goods ordered or the Customer Requirements; or
(c)any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.4The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.5The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.6The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.7Except where clause 7.8 applies, any Customer which is granted a credit account by the Supplier (as notified to the Customer in writing) shall pay the invoice in full and in cleared funds by the 25th of the month following date of invoice unless otherwise agreed in writing. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.8For any Goods ordered by a Customer which has not been granted a credit account by the Supplier (as notified to the Customer in writing) or for any Goods which incorporate Customer Requirements the Customer shall pay the invoice in full prior to the delivery of the Goods and the Supplier shall be entitled to withhold delivery of the Goods pending payment by the Customer.
7.9If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount in accordance with The Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.10The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8.1Upon the issue of an Order Acknowledgement the Order and the obligation to buy the Goods shall be complete and binding on the Customer from which point the Customer shall not be able to cancel the Order, shall not be entitled to return any Goods delivered to the Customer and the Supplier shall not be under any obligation to issue a refund in relation to Goods.
9.Termination and suspension
9.1If the Customer becomes subject to any of the events listed in clause 9.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
9.2For the purposes of clause 9.1, the relevant events are:
(a)the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b)the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(c)(being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d)(being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(e)(being a company) the holder of a qualifying floating charge over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(f)a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(g)(being an individual) the Customer is the subject of a bankruptcy petition or order;
(h)a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(i)any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2(a) to clause 9.2(f) (inclusive);
(j)the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(k)the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l)(being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
9.3Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.2(a) to clause 9.2(i), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.4On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
9.5Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
9.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10.1Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a)death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); or
(b)fraud or fraudulent misrepresentation; or
(c)breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d)defective products under the Consumer Protection Act 1987; or
(e)any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
10.2Subject to clause 10.1:
(a)the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b)the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the sum of £5,000,000.
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, failure of public or private telecommunications networks, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
12.1Assignment and other dealings.
(a)The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract.
(b)The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.2Entire Agreement - This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, terms and conditions supplied by the Customer, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.3Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by a Director of the Supplier.
12.4Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
(a)If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b)If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
(a)Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
(b)A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.5(a); 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
(c)The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.7Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.8International Delivery. Unfortunately, we do not deliver to addresses outside the UK. You may place an order for Products from outside the UK, but this order must be for delivery to an address in the UK.
12.9Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
12.10Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).