1.1. The following conditions of sale ("these conditions") apply to all contracts for sale concluded by any means by any subsidiary company of Millmead Optical Group Ltd (including, without limitation) The Optoplast Actman Eyewear Co Ltd and Continental Eyewear Ltd. The applicable subsidiary company which is a party to any such contract is hereafter referred to as "the Company".
1.2. These conditions shall apply to the exclusion of any other terms and conditions (other than any which have been agreed to by the Company in accordance with section 1.3) including, without limitation, any which the person or company buying any goods from the Company ("the Purchaser") may seek to impose. The placement of an order by the Purchaser shall be deemed to be an express acceptance of these conditions.
1.3. No alleged variation or waiver of these conditions shall be binding unless confirmed in writing and signed by a Director of the Company.
1.4. A reference in these conditions to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.5. The headings in these conditions are for convenience only and shall not affect their interpretation.
1.6. If any provision of the contract or these conditions is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the contract or these conditions and the remainder of the provision in question shall not be affected.
1.7. All contracts between the Company and the Purchaser shall be subject to English Law and the parties hereby submit to the non-exclusive jurisdiction of English courts.
2. Offers, Contracts and Cancellation
2.1. Any order placed by the Purchaser and any quotation or offer made by the Company is subject to contract and is not binding on or deemed to be accepted by the Company until the Company issues its written confirmation of the Purchaser's order to the Purchaser or otherwise commences production or delivery of the goods to be supplied by the Company ("the Goods") in accordance with such order, whereupon it shall be deemed to comprise a contract between the Company and the Purchaser which is subject to these conditions. In the event of a conflict between the Purchaser's order and the Company's written confirmation of order, the latter shall prevail.
2.2. The Purchaser's rights or obligations relating to any order cannot be assigned, sub-contracted or otherwise delegated or transferred without the Company's written consent.
2.3. No order which has been accepted by the Company may be cancelled or varied by the Purchaser except with the Company's written consent and on terms that the Purchaser indemnifies the Company in full against all loss (including, without limitation, loss of profits), costs (including, without limitation, the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of such cancellation or variation.
3.1. The quantity, description and any specification of the Goods shall be those set out in the Purchaser's order which has been accepted by the Company and the Company's written confirmation of order, although the Company reserves the right to make any changes to the specification which are required to conform with any applicable legal requirements, or which do not materially affect the quality or performance of the Goods.
3.2. Where the Company has supplied a sample of the applicable Goods which has been approved by the Purchaser, the contract shall be deemed to be a contract for sale by sample and the Goods supplied by the Company shall accord with such sample in all material respects and the Purchaser may not impose on the Company any requirements regarding the description or specification of the Goods which differs from such sample.
3.3. Where the Company has supplied a stand for display purposes, this is on a loan only basis and is owned by the Company, Non-return or damage will result in a charge to the full value of the stand.
4. Payment Provisions
4.1. The price payable for the Goods shall be the Company's quoted price and all prices quoted are valid for 30 days only or until earlier acceptance by the Purchaser, after which time they may be altered by the Company.
4.2. Unless otherwise agreed by the Company in writing all prices shall be ex works, as defined in the version of Incoterms in force at the date when the contract is made, and all prices exclude packing, transport, carriage and insurance costs and any export or import duties which are charged in addition.
4.3. The Company reserves the right, by giving notice to the Purchaser at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications of the Goods which is requested by the Purchaser, or any delay caused by any instructions of the Purchaser or failure of the Purchaser to give the Company adequate information or instructions.
4.4. The Company's prices are quoted and payable in sterling, unless otherwise stated by the Company.
4.5. The Company may invoice the Purchaser in respect of any Goods at any time on or after such Goods being made available for dispatch and delivery to or collection by the Purchaser (whether or not such dispatch and delivery is accepted by the Purchaser or such collection is made by the Purchaser) or, in the case of any Goods which remain in the Company's possession or under the Company's control at the end of any storage period referred to in section 5.3, at any time on or after the end of such period.
4.6. All invoices are payable in full, without any withholding, set off or other deduction, within 30 days of the date of invoice or immediately if the Company notifies the Purchaser that it has reasonable grounds to doubt the solvency of the Purchaser. unless alternative credit terms have been agreed in writing by the Company and signed by a Company Director.
4.7. Payment shall be made in cleared funds received by the Company by the due date either by cheque, credit/debit card or by BACS to such bank account as the Company may specify.
4.8. In the event of late payment or if the Company notifies the Purchaser that it has reasonable grounds to doubt the solvency of the Purchaser, without limiting any other right or remedy available to the Company, the Company reserves the right to charge the Purchaser interest (both before and after any judgment) on the amount unpaid at the rate of 8% per annum over the base rate of HSBC Bank plc from time to time until payment is made in full; and/or any cost incurred by the Company will be recharged to the purchaser in respect of collection of late debts; and/or cancel the applicable contract with the Purchaser; and/or suspend any further deliveries to the Purchaser.
5. Delivery and Storage
5.1. Delivery of Goods shall be made by the Purchaser collecting the Goods at the premises specified by the Company or, if some other place for delivery is agreed by the Company, by the Company delivering or arranging delivery of the Goods to that place. The Purchaser is responsible for complying with any legislation or regulations governing the importation of Goods into the country of destination and for the payment of any export or import duties on them.
5.2. Any dates for delivery of the Goods (including, without limitation, any call offs referred to in section 5.3) which are either quoted by the Company or accepted by the Company are approximate only and whilst the Company will use reasonable efforts to adhere to such delivery dates, these are without obligation on the Company's part and time of delivery is not of the essence to the contract. The Company will advise the Purchaser of any anticipated delay, but shall not accept liability or any damages howsoever arising due to any delay and the Purchaser shall not be entitled to reject Goods on the grounds of delay in delivery.
5.3. The Company may agree to hold and store stocks of Goods ordered by the Purchaser for up to 12 months from the date of the Purchaser's order relating to such and deliver the Goods when called off by the Purchaser in writing during that period.
5.4. The Company reserves the right to charge and invoice the Purchaser in arrears for its reasonable daily storage costs for so long as any Goods remain in the Company's possession or under the Company's control either beyond the period referred to in section 5.3 or after the date on which such Goods are made available for dispatch and delivery to or collection by the Purchaser, but otherwise the Company shall not charge the Purchaser for storage of Goods.
6. Passing of Risk and Retention of Title
6.1. Risk of damage to or loss of Goods shall pass to the Purchaser at the moment the Goods are made available for dispatch and delivery to or collection by the Purchaser or, if sooner, at the commencement of any storage of such Goods by the Company for the Purchaser.
6.2. Notwithstanding delivery and/or the passing of risk in the Goods or any other provision of these conditions, title in and ownership of the Goods shall not pass to the Purchaser until the Company has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be supplied by the Company to the Purchaser for which payment is then due.
6.3. Until such time as title in and ownership of the Goods passes to the Purchaser, the Purchaser shall hold the Goods as the Company's fiduciary agent and bailee and shall keep the Goods separate from those of the Purchaser and third parties and properly stored, protected, insured and identified as the Company's property, but the Purchaser shall be entitled to re-sell or use the Goods in the ordinary course of its business.
6.4. Until such time as title in and ownership of the Goods passes to the Purchaser (and provided the Goods are still in existence and have not been resold) the Company shall be entitled at any time to require the Purchaser to deliver up the Goods to the Company and, if the Purchaser fails to do so forthwith, to enter upon any premises of the Purchaser or any third party where the Goods are stored and repossess the Goods.
6.5. The Purchaser shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Purchaser does so all moneys owing by the Purchaser to the Company shall (without limiting any other right or remedy of the Company) forthwith become due and payable.
7. Warranties and liability
7.1. Subject to the following provisions, the Company warrants that the Goods will correspond in all material respects with their specification and will be free from material defects in materials and workmanship at the time of delivery.
7.2. The above warranty is given by the Company subject to the following conditions:
7.2.1 the Company shall be under no liability in respect of
any defect in the Goods arising from any specification supplied by
7.2.2 the Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company's instructions, misuse or alteration or repair of the Goods without the Company's written consent;
7.2.3 the Company shall be under no liability if the total price for the Goods has not been paid by the due date for payment and a copy of the corresponding delivery note or invoice must accompany the returns together with a valid reason for the return.
7.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Purchaser shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
7.3. Returned goods must be sent recorded delivery and are sent at sender's risk. Credits are only given for products received subject to these terms and conditions.
7.4. The company has the absolute discretion on whether to issue a credit, conditional on the frames, cases, packaging, accessories and/or lenses being returned for a valid reason. Frames must be current models, they must be returned exactly as supplied i.e. must include, where applicable, all the original packing, cloth, swing tickets, spare pads, guarantee cards etc. Models being returned must be accompanied by the relevant delivery note or invoice with the returned frames highlighted.
7.5. The company will not issue a credit for returned spare parts.
7.6. The Company will charge a restocking fee of £2.50 per frame (exclusive of VAT) in respect of handling, administrative costs, and quality control checks for all returned goods or, in specific situations and at the Company's absolute discretion, 50% of the invoice value of the goods.
7.7. Subject as expressly provided in these conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. The statutory rights of the Purchaser are not affected by these conditions.
7.8. Any claim by the Purchaser for any defect or failure which constitutes a breach of the warranty in section 7.1 shall be notified to the Company in writing within 7 days from the date of delivery or (in the case of defects or failures that are not apparent on reasonable inspection) within 7 days after discovery of the defect or failure. If delivery is not refused, and the Purchaser does not notify the Company accordingly, the Purchaser shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure and the Purchaser shall be bound to pay the price as if the Goods had been delivered in accordance with the applicable contract.
7.9. Where any valid claim in respect of any Goods by the Purchaser for any defect or failure which constitutes a breach of the warranty in section 7.1 is notified to the Company in accordance with these conditions, the Company shall be entitled to replace the Goods (or the part in question) free of charge or, at the Company's sole discretion, refund to the Purchaser the price of the Goods (or a proportionate part of the price), but the Company has no further obligation or liability to the Purchaser.
7.10. Except in respect of death or personal injury caused by the Company's negligence (in respect of which the company's liability shall be unlimited), or liability for defective products under the Consumer Protection Act 1987, the Company shall not be liable to Purchaser by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever which arise out of or in connection with the supply of the Goods (including, without limitation, any delay in supplying or failure to supply the Goods in accordance with the applicable contract or at all) or their use or resale by the Purchaser, and the entire liability under or connection with any contract shall not exceed the price paid by the Purchaser to the Company for the applicable Goods which are the subject of such contract, except as expressly provided in these conditions.
8. Force Majeure
8.1. The Company shall not be liable to the Purchaser or be deemed to be in breach of contract by reason of delay in performing, or any failure to perform, any of the Company's obligations, if the delay or failure was due to any cause beyond the Company's reasonable control. Without prejudice to the generality of the foregoing, the following should be regarded as causes beyond the Company's reasonable control: act of God, explosion, flood, storm, fire, accident; war or threat of war, epidemic and/or pandemic or other natural disaster, sabotage, insurrection, civil disturbance, or requisition; acts, restrictions, regulations, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes or other industrial actions or trade disputes; difficulties in obtaining raw materials, labour, fuel, parts or machinery; or power failure, impossibility of the use of public or private telecommunications networks or break down in machinery.