Terms & Conditions
1. Construction of Contract
I. These terms and conditions (referred to as the “Conditions”) shall apply to all sales agreements entered into between CEMA Lighting Limited (hereinafter referred to as “the Company”) and any persons, firm or company (hereinafter called “the Customer”) for the supply of goods or the carrying out of works or services by the Company. Any sale by the Company is expressly subject to Customer’s full acceptance of these Conditions stated below and waiver of Customer’s general purchase conditions, which shall be deemed to have been given in any purchase order or confirmation of acceptance of the Quotation (as defined below) provided to the Company by the Customer.
II. Unless agreed in writing in accordance with clause 1. III. below and subject to clause 1. I., these Conditions, the Quotation provided by the Company and the purchase order or confirmation of acceptance of the Quotation provided to the Company by the Customer constitutes the entire agreement of the Company and the Customer with respect to its subject matter (referred to as the “Contract”) and supersedes all prior and contemporaneous representations, proposals, discussions, and communications, whether oral or in writing with respect to this subject matter. In the event of any conflict between the terms of these Conditions and any Quotation, the provisions of these Conditions shall govern unless expressly agreed upon by the Company and the Customer under the Quotation.
III. The Company contracts upon the terms of these Conditions only, and any other standard terms emanating from the Customer shall not apply. These conditions shall not be modified without the written agreement of the Company, and in order that the Contract shall be complete of the Agreement between parties with regard to the supply of goods or the carrying out of the work or services by the Company, the Customer must ensure that any representation or instruction on which it wishes to rely has been accepted by the Company in writing.
IV. Any typographical, clerical error or omission in any sales literature, quotation, price list, acceptance of offer, invoices or other document or information issued by the Company shall be subject to correction without liability on the part of the Company.
2. Price and Scope Variation
I. All proposal quotations in respect of the provision of goods, works and/or services (the “Quotation”) are valid for a period of 30 days.
II. Quotations are based on the Company’s current costs of production at the date of the same and unless otherwise agreed in writing, are subject to reasonable amendment by the Company on one weeks’ written notice on or at any time after acceptance by the Customer to meet any rise or fall in production costs and the new prices shall take effect at expiry of the notice. The Company’s statements that its costs of production have risen or fallen in such circumstances shall be conclusive as to the existence of such a rise or fall, save in the event of manifest error or fraud.
III. Quotations exclude access equipment hire. This is chargeable at cost to the customer in addition to the proposal.
IV. The Company or the Customer may request changes that affect the scope, duration, delivery schedule or price of a Contract, including changes in the goods, works or services to be delivered. If the Company or the Customer requests any such change, the parties shall negotiate in good faith a reasonable and equitable adjustment to the Contract, including if necessary, any price and schedule adjustment and changes to the payment schedule and milestones, where relevant and wherever possible. Shall evidence such change in writing between them before the Company carries out such a change. In the event the Customer requests (whether in writing or orally) that the Company progress a change without formal agreement of the adjustment to the Contract and the Company agrees to such request, the Customer shall be liable for the reasonable costs of such change and the pricing of such a change shall be based on the then current prices of the Company, with the Company being entitled to invoice for such costs on a weekly basis against goods, works or services provided. If the Company incurs any delay in achieving any milestones as a result of such negotiations, the Company shall be entitled to submit an interim invoice for the percentage completed of such milestone and payment of such invoice shall be in accordance with these Conditions.
V. The Company reserves the right to make any changes to the goods at any time, including their specifications, in its catalogues and brochures.
All estimates and or Quotations are, unless specifically otherwise provided in writing, are exclusive of value added tax and any other statutory charges, taxes, levies, duties or charges as may be appropriate. If the Company is required to impose, levy, collect, withhold or assess any such taxes, duties and charges on any charges under this Contract, the Company shall invoice Customer for such taxes, duties and charges unless Customer furnishes Company with an exemption certificate or other equivalent documentation demonstrating its exemption from such taxes, duties and/or charges and such invoice shall be payable in accordance with clause 7 below.
4. Installations & Acceptance
I. All access is charged at cost and payable by the Customer.
II. Free and easy access to all installation areas on site will be required at all times during installation and the Customer shall procure the same for the Company.
III. Installation working hours are Monday - Friday 8:00am - 5:00pm unless alternative times are agreed by both parties. Overtime will be charged for works outside these hours.
IV. Customers will be sent a sign off sheet, this must be signed and returned prior to any work commencing.
VI. Any extra fittings and work required will be subject to extra costs and may need completing on another date.
VII. Make good is not included. Fitting sizes may vary meaning certain areas may require minor touching up which shall be the responsibility and to completed at the cost of the Customer only.
VIII. If Customer fails to notify Company of any material non-conformities with the Contract within a reasonable period following delivery of goods or completion of the services and/or works (such period not to exceed fourteen (14) days) or is using those goods or output of the services or works for the conduct of its business, the goods or output of the services or works shall be deemed accepted, without prejudice to the warranty provisions hereunder.
I. Any time for performance of the Company’s obligations under the Contract shall be reckoned from the date upon which the Company receives all the necessary information and documentation to enable it to proceed with the supply of goods or the carrying out of works or services without interruption.
II. Delivery of goods shall be completed at the time the Company makes the goods available for unloading at the Customer’s premises (whether or not the Company is responsible to complete such unloading), unless agreed otherwise in writing between the Company and the Customer.
III. Any date for delivery specified in respect of goods, works or services sold or to be sold by the Company shall be treated as an estimate only and such delivery is not a condition of the Contract and is specifically hereby agreed that time for delivery is not of an essence. The Company shall not in any circumstances however so arising, whether as a result of its own negligence or otherwise, be under any liability to the Customer for any failure to deliver by or on such date.
IV. Any delivery time specified for the provision of goods, services or works shall be extended by any period or periods during which the manufacturer or delivery of goods or other work by the Company in connection with the Contract is delayed due to fire, explosion, flood, storm, tempest sabotage, strikes, official and unofficial riot, Invasion, acts of war (whether war be declared or not), shortage of labour, power or materials, delayed by the Company’s suppliers, civil commotion, accidents, plant breakdown, technical difficulty, seizure, or any other action by or in compliance with an order of an apparently competent authority and any other event or circumstances beyond the control of the Company. Notwithstanding such delays, the Customer shall take and pay for at the rate of Contract price such of the goods as shall be tendered by the Company and be ready for delivery.
V. If for any reason the Customer is unable to accept delivery of good at the time when the goods are due and ready for delivery the Company will store the goods and the customer shall be liable to the Company for the reasonable cost (including insurance) of its so doing. This provision shall be without prejudice to any other claim, which the Company may have in respect of the Customer’s failure to take delivery at the appropriate date.
VI. If the Customer or its other contractors, representatives or employees delays, prevents or impedes performance by the Company, the Company shall be entitled to an extension of time and to recover any additional costs incurred due to such delay, prevention or impediment including additional storage costs, de-mobilization/re-mobilization costs, travel and transportation costs. Without prejudice to any other rights available under this Contract, if the Company suffers delays in excess of 30 days, the Company may, in its sole discretion:
(a) submit on interim invoice for the percentage completed of any milestone which will be delayed due to the Customer and the additional costs incurred as a result of such breach. Payment of such invoice shall be in accordance with clause 7 and on completion of the milestone, the balance shall be payable;
(b) suspend performance or reduce its rate of performance under this Contract and the Customer shall be liable for any costs of such suspension or reduction in rate of performance and the Company shall be entitled to an extension of time; and/or
(c) require any invoices submitted in accordance with this Contract which have not yet been paid to become immediately due for payment, notwithstanding the due date for payment under clauses 7.
6. Property and Risk
I. The risk in the goods shall pass to the Customer upon delivery in accordance with the Contract and upon delivery, risk of loss or damage shall pass to Customer who assumes all the risks relating to the possession, custodianship and/or use of the goods and shall be liable for any damages caused by the goods.
II. Until the Company has paid in full for the supply of goods and the carrying out of services and work under the Contract and any other contract between the Company and Customer:
a) the property of the goods shall remain vested in the Company and the Customer shall hold the goods as bailee only. The Customer shall not sell the goods nor shall the Customer part with possession of the goods unless in the latter event the Company express written consent. In any particular case and if such consent is given, the Customer shall expressly inform the person in to whose possession the goods are put that ownership thereof remains vested in the Company and that the possessor is to be the subject to the like rights in relation to the goods as the Customer; and
b) in the event of payment default on the part of the Customer, the Company shall be entitled to recover possession of the goods at any reasonable time and shall be permitted access to the Customer’s premises for such purposes.
III. The Company shall be entitled to require goods to be stored separately or clearly marked so as to identify them as the Customers property. The bailment of the goods to the Customer shall create a fiduciary relationship between the Company and the Customer. If in contravention of the prohibition upon selling goods the Customer effects a sale the Customer shall account to the Company for the entire sale proceeds as fairly represented by the goods or if higher proportion of the sale proceeds equal to the value of the goods as invoiced to the Customer by the Company, including any interest due accrued. The monies so becoming payable to the Company shall not be mixed with the Customer’s own monies but shall be placed in a separate account and forthwith remitted to the Company.
IV. In addition, and without prejudice to clause 6. III., if the goods are transformed or incorporated into other goods, the Company shall have a lien on the transformed goods or the goods in which they have been incorporated until full payment of the amounts stated in clause 6. V. has been made. The Customer undertakes to confirm the existence of this retention of title to third parties to whom it may sell the goods in their original condition or incorporated in other goods.
V. Provided that the Company has not previously repossessed the goods, the property in the goods shall pass to the Customer upon payment for the goods and the carrying out of services and work under the Contract and any other contract between the Company and Customer in full including any interest accrued due.
I. The Company shall be entitled to invoice for the Contract price in accordance with the terms of the Quotation and any invoiced amount is to be paid within 7 days of the invoice date. Payment shall be made to the Company and the Company’s official receipt shall be the only acknowledged discharge of the debt. The Customer shall not be entitled to withhold payment due to the Company by reason of payment credit, set off counterclaim allegation of incorrect or defective goods or work for whatsoever reason which the Customer may allege excuses it from performing its obligations under the Contract.
II. If Customer delays in its payment obligations, without prejudice to any other remedies available to it by law or in equity, Company may at its option (i) suspend all further deliveries or performance to be made under this Contract or any further performance under any other contract with Customer, in which event Customer shall not be released in any respect from its obligations to Company under this Contract or the other contract; (ii) recover all costs of collection including but not limited to a fixed debt collection fee of GBP £40 for each invoice, in accordance with the applicable mandatory statutory provisions and reasonable legal or professional fees; (iii) repossess the goods for which payment has not been made; (iv) retain any equipment supplied by Customer to the Company in relation to Company’s provision of works and/or services; and (v) recover from Customers interest on the amounts unpaid from its due date for payment until such payment is made, of 4% per annum above the Bank of England’s base rate or 4% where the base rate is nil.
III. Any discount from Company’s rates, if any, shall cease to apply to the unpaid invoice and the Company shall be entitled to issue an invoice for any discounts which shall be payable on receipt.
IV. The Company shall be entitled to Charge and be paid for any increase cost incurred for expedited delivery or any other matter requested by the Customer.
V. The Company shall be entitled, without any liability of whatsoever nature, to cancel any Contract with the Customer at any time should the Company not be able to obtain a Credit Reference In respect of the Customer which In the opinion of the Company, In its sole absolute and unfettered discretion it regards as an acceptable credit reference. Following such cancellation the Company shall be entitled to payment for all works carried out by the Company to the date of such cancellation and if such works only comprise a part of the Contract then a proportionate part of the Contract price reflects their worth.
8. The Company’s Warranties
I. Subject to the remainder of this clauses 8., the Company warrants that;
a) if the Company is supplying goods only and save for those specific goods set out in clause 8. I. b), the goods supplied will materially correspond with their specification at the time of delivery and will be free from material defects for a period of five years from the date of their delivery;
b) if the Company is supplying goods only and those goods contain an M3 battery, the goods supplied will materially correspond with their specification at the time of delivery and will be free from material defects for a period of three years from the date of their delivery, subject always to the Customer carrying out suitable testing of the batteries on an annual basis and the Company shall have no liability it such testing is not carried out; and
c) if the Company is supplying goods and installation works and/or services in respect of those goods, the goods supplied and the installation works and/or services will materially correspond with their specification at the time of delivery of the goods and completion of the installation works and/or services respectively and the installation works and/or services respectively will be free from material defects for a period of five years from the date of completion of the same and the goods supplied will be free from material defects for a period of eight years from the date of delivery.
II. In the event of a valid claim arising within the time limit set out in clause 8. I. a) or clause 8. I. b) , the Company’s liability shall be limited to at its own option either repairing or replacing such faulty goods, provided that the said goods are returned to its own premises, and the Company’s liability shall be satisfied by making available for collection the duly repaired and/or replaced goods from its premises. The obligation set out in this clause 8II. shall be the Company’s sole obligation and Customer’s sole remedy in respect of any defect in the goods provided by the Company and the Company’s liability for defects shall cease at the end of the period set out in clause 8. I. a) or clause 8. I. b).
III. In the event of a valid claim arising within the time limit set out in clause 8. I. c), the Company’s liability shall be limited to at its own option;
a) in the first five years of the warranty period set out in clause 8. I. c), either re-performing the works and/or services or refunding such portion of the works and/or services which cannot be re-performed and/or repairing or replacing such faulty goods; and
b) in the final three years of the warranty period set out in clause 8. I. c), the Company shall have no liability in respect of the works and/or services, but will either repairing or replacing such faulty goods.
IV. The obligation set out in this clause 8. II. and III. shall be the Company’s sole obligation and Customer’s sole remedy in respect of any defect in the goods provided by the Company or works and/or services carried out by the Company and the Company’s liability for defects shall cease at the end of the warranty period set out in clause 8. I..
V. In consideration of the Company’s liability under the warranties given in this clause 8, the Company’s liability whether for any representation, or under any implied warranty, condition or other term, or any duty at common law, or under the express terms of a contract shall be limited to the Contract price for the particular goods in respect of which the liability arises in no circumstances whatsoever shall the Company be liable in damages to the Customer for any loss of profit, consequential loss of anticipated savings or profits or damage or loss of anticipated profits of any Third Party claimed against the Customer.
VI. The Company shall not be liable under any of the warranties set out above if:
a) the goods supplied have been repaired or modified by anyone other than an authorised Company repair person; or
b) the goods supplied have been subjected, in the sole judgment of the Company, to misuse or accident or handled, stored, used or maintained in a manner or environment inconsistent with the specification and/or instructions or recommendations of the Company; or
c) to the extent it is obliged to do so, the Customer fails to return the defective product, freight pre-paid to the Company’s facilities;
f) the goods, in the sole judgment of the Company are not actually defective;
g) as a result of fair wear and tear of the goods or as a result of any burnout through usage of goods which are subject to such burnout as a result of usage.
VII. Any false callouts relating to warranties will be subject to a callout fee.
VIII. Any costs associated with access requirements during the first year of the warranty period will be paid by CEMA Lighting and after this period all access will be payable by and chargeable to the Customer.
IX. Warranty is not valid until the charges payable for the goods, works and/ or services under this Contract is paid in full.
X. All warranties provided herein are personal to, and intended solely for the benefit of, the Customer and do not extend to any third party, without the written consent of the Company.
9. Limitation of liability
I. References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including in respect of:
any breach of this Contracts; and
any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract.
II. Nothing in this Contract shall limit a liability which cannot legally be limited, including liability for:
(a) death or personal injury resulting from negligence;
(b) fraud or fraudulent misrepresentation;
deliberate default or wilful misconduct; or
any liability which cannot be legal limited or excluded.
III. Without prejudice to clause 9. II., the Company shall not be liable whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, to the Customer for any:
(a) loss of profit, goodwill, sale, agreements, contracts, business, business opportunity or anticipated savings; or
(b) loss of use or corruption of software, data or information;
(c) wasted overheads and preparations costs; or
(d) special, indirect or consequential damage or loss, suffered by the Supplier that arises under or in connection with this Contract.
IV. Without prejudice to clause 9. II. and III., the Company’s total liability arising under or in connection with this Contract, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited for any other type of liability, to the charges payable for the goods, service and/or works as set out or referenced in this Contract (as amended from time to time in accordance with the terms of this Contract).
I. In the event of any of the following, without prejudice to any other rights or remedies the Company may have against the Customer, the Company shall have the rights set out in clause 10. II.;
a) the Customer is in breach of any of the Conditions of the sale of the Company (including failure to pay any invoice in accordance with clause 7 above); or
b) the Customer being a Company makes or attempts to make voluntary arrangement under Part 1 Insolvency Act 1986 (the Act) or is likely or liable to become unable to pay any one of its debts or is or becomes the subject of an applicant to the Court for an Administration under Part II of the Act; or
c) the Customer being an individual appears to be unable to pay or to have any reasonable prospect of being able to pay anyone of his/her debts or is or becomes the subject of Bankruptcy Petition under Part IX of the Act or is the subject of a Statutory Demand for any of his/her debts under Part IX of the Act or if execution or other process is issued in respect of any of has/her debts on a judgment or Order of any Court,
II. In the event of one or more of the circumstances set out in clause 10. I., the Company shall be entitled to;
forthwith to determine the Contract in whole or in part;
all costs expenses overheads and loss of profits incurred by the Company in connection with the Contract shall forthwith become payable as a debt from the Customer to the Company;
any goods of the Company kept by the Customer shall forthwith be delivered up to the Company to its nominee who shall be given access to the goods in order to remove the same;
the price of any goods delivered by the Company to and used by the Customer shall become payable forthwith; and
III. Termination of Orders by the Customer in whole or in part cannot be accepted or will be subject to a 50% surcharge of the Quotation value
Goods supplied by the Company may not be returned for credit without written consent of the Company and any goods, which are returned without such consent, will be refused. Any goods that are accepted for return by the company will be subject to a 25% restocking charge.
Neither the Company nor any person acting on its behalf, makes any warranty of representation, expressed or implied with respect to the information contained within the lighting schemes or specifications, or assumes any liability with respect to the use of, or damages resulting from the use any specification information. In assessing the suitability of any specific product or installation the user must make his own judgment and/or take appropriate advice.
13. General Lien
Without prejudice to other remedies the Company shall in respect of all unpaid debts due from the Customer have a general lien on all goods and property in its possession (whether worked on or not) shall be entitled on the expiration of 14 days’ notice to the Customer to dispose of such goods or property as it thinks fit and to apply any proceeds towards such debts.
14. Intellectual Property
Where the Contract between the Company and the Customer for the supply of goods or the carrying out of work by the Company involve the design or invention of specialised equipment then all drawing designs and copyright and similar protection therein arising out of the work of the Contract shall belong to the Company and the Company grants the Customer a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy any designs for the sole purpose of receiving the goods, works and services from the Company. The Customer shall have no right to grant any sub-licence of the licence under this clause 13 and shall not use the designs or invention for anything beyond the receipt of the goods, works and services.
15. Data Protection
Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time in the UK relating to the use of personal data and the privacy of electronic communications, including (i) the Data Protection Act 2018 and any successor UK legislation, (ii) the retained EU law version of General Data Protection Regulation ((EU) 2016/679) (UK GDPR), and (iii) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
I. Severance. If any provision or part-provision of this 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 this Contract. 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.
II. Variation. Except for changes to any of the appendices, which can be agreed in writing by the parties without the need for a signature, no variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
III. Waiver. A waiver of any right or remedy under this Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default A failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Any notice given to a party under or in connection with this 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 to the registered address of the relevant party;
sent by e-mail to the address of the person principally responsible for the management of this Contract for the relevant party.
Any notice shall be deemed to have been received:
if delivered by hand, on signature of a delivery receipt or 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 e-mail, at 9.00 am on the next Business Day after transmission.
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.
V. Third party rights. A person who is not a party to this Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
VI. Further assurances. At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Contract.
VII. Governing law. This 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.
VIII. Jurisdiction. 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).