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Astro Lighting Limited Terms and Conditions of Sale of Goods

1. Definitions

In this Agreement, the following words shall have the following meanings:

1.1 "Supplier" means Astro Lighting Limited;
1.2 "Customer" means the customer of the Supplier specified in a relevant purchase order;
1.3 "Goods" means any goods which the Supplier supplies to the Customer pursuant to a purchase order;
1.4 "Delivery Date" means the date on which the Goods are deemed to be delivered in accordance with clause 9;
1.5 "Account Address" means the address provided by the Customer when setting up an account with the Supplier;
1.6 "Intellectual Property Rights" means patents, registered designs, unregistered designs, trade marks and service marks, domain names, copyright, design right, database rights, moral rights, utility models, trade or business names, trade secrets and other proprietary knowledge and information, specifications, formulae, data, processes, methods, techniques, improvements, other technology and/or discoveries, know-how, materials, rights protecting goodwill and reputation, rights in inventions, computer programs, designs, rights in confidential information and any other intellectual or industrial property right of any nature whatsoever, whether registered or unregistered or applied for, and together with (i) all rights of action in relation to the infringement of and the right to apply for any of the above, from time to time existing anywhere in the world and (ii) anything which is capable of protection by any of the foregoing rights; and
1.7 "Personal Data" and "Processing" shall have the meanings set out in the Data Protection Act 1998.

2. Conditions Applicable

2.1 These Terms and Conditions shall apply to the sale of Goods by the Supplier to the Customer 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.

2.2 An order for the Goods placed by the Customer or any agent of the Customer shall be deemed to be:-

2.2.1 an offer by the Customer to purchase Goods pursuant to the provisions of these Terms and Conditions;
2.2.2 accepted only when the Supplier issues a written acceptance of the order, at which point these Terms and Conditions shall become binding on the parties; and
2.2.3 conclusive evidence of the Customer's acceptance of these Terms and Conditions.

2.3 Any variation of these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be invalid unless agreed in writing by the parties.

3. Description

The Customer acknowledges and agrees that any description which is given or applied to the Goods:

3.1 is only for the purpose of identifying the Goods; and

3.2 is not relied on by the Customer when entering into these Terms and Conditions.

4. Supplier Warranty

4.1 The Supplier warrants that on delivery the Goods shall:

4.1.1 conform in all material respects with their description; and

4.1.2 be free from material defects in design, material and workmanship.

4.2 The Supplier shall not be liable for the failure of any Goods to comply with the warranty set out in clause 4.1 in any of the following events:

4.2.1 the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

4.2.2 the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;

4.2.3 the Customer alters or repairs such Goods without the written consent of the Supplier;

4.2.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

4.2.5 the Goods differ from their description as a result of changes made by the Supplier to ensure they comply with applicable statutory or regulatory requirements.

4.3 The warranties set out in clause 4.1 shall not apply to any bulbs or components supplied by third parties that are incorporated in the Goods.
4.4 Subject to clause 4.1, all conditions or warranties, express or implied (whether by statute or otherwise, to the fullest extent permitted by law), are expressly excluded from these Terms and Conditions.

5. Acknowledgement of Examination

The Customer agrees:

5.1.1 to inspect the Goods on delivery;
5.1.2 that it must notify the Supplier of any defect or damage which would be apparent upon a reasonable visual inspection within 5 days of the Delivery Date;
5.1.3 that in the absence of such notification described in clause 5.1.2 the Customer is deemed to be satisfied as to the condition of the Goods which would be evident upon reasonable examination; and
5.1.4 that, subject to clause 4.1, the Supplier has not given any warranty or condition as to quality or fitness for any purpose of the Goods.

5.2 If the quantity of goods delivered is different from that ordered, the Customer must notify the Supplier of such deficiency within 5 days of delivery failing which the Customer shall be deemed to have accepted the amount actually delivered as being in accordance with the Customer's order.

6. Defects and Guarantee

6.1 The Supplier will, at its option, either make good by repair or the supply of a replacement, material defects (determined by reference to the warranties set out in clause 4.1) which, under proper use, appear in the Goods within a period of 3 years after the Goods have been delivered, provided that:

6.1.1 the defect would not have been apparent from reasonable inspection by the Customer on delivery made in accordance with clause 5.1.1;
6.1.2 the Customer notifies the Supplier in writing of the claimed defects in accordance with clause 5.1.2;
6.1.3 the Supplier is satisfied that the defects arise solely from faulty design (other than a design made, furnished or specified by the Customer), materials or workmanship of the Supplier;
6.1.4 the Goods or parts thereof claimed to be defective are returned to the Supplier at the risk of the Customer but at the expense of the Supplier; and
6.1.5 the repaired or replacement Goods will be delivered to the Customer to the original place of delivery, but otherwise subject to the provisions of these Terms and Conditions.

6.2 As an alternative to clause 6.1, the Supplier shall be entitled, at its absolute discretion, to refund the price paid by the Customer for the Goods in question.
6.3 The remedy provided in this Clause 6 is the sole and exclusive remedy of the Customer under these Terms and Conditions and is without prejudice to the other provisions of these Terms and Conditions, including, without limitation, clause 13 below.

6.4 These Terms and Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

7. Sample

The Customer acknowledges and agrees that where a sample of the Goods has been shown to and/or inspected by the Customer:

7.1 the sole purpose of the Supplier in doing so was to enable the Customer to judge the quality of the bulk; and
7.2 the provision of such sample does not form part of these Terms and Conditions or have any contractual force and, for the avoidance of doubt, shall not constitute a sale by sample.

8. Price

8.1 All amounts stated by the Supplier are exclusive of VAT and/or any other applicable taxes or levy, which shall be charged in addition at the rate in force at the date any payment is required from the Customer.
8.2 The Supplier reserves the right to adjust its prices for any increase in any costs of any kind arising for any reason after the date of these Terms and Conditions.
8.3 The Customer shall pay the price for the Goods as stated on the invoice issued by the Supplier and not as stated on any quotation, estimate, documentation or given orally.
8.4 The Customer shall pay all amounts due under these Terms and Conditions in full without any set-off, counterclaim, deduction or withholding (except for any deduction of 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.

9. Delivery

9.1 The Supplier shall, on agreement with the Customer, either make the Goods available for collection by the Customer or deliver the Goods to either the Account Address or such registered business address as may be agreed between the parties.
9.2 Subject to the method of delivery to be determined in accordance with clause 9.1, the Goods shall be deemed to have been delivered to the Customer when:

9.2.1 the Supplier makes them available to the Customer or agent of the Customer or any carrier (who shall be the Customer's agent whether or not the charges are paid by the Supplier or Customer); or
9.2.2 the Goods are delivered to the Customer or agent of the Customer or any carrier (who shall be the Customer's agent whether or not the charges are paid by the Supplier or Customer) by the Supplier or the Supplier's agent or subcontractor.

9.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
9.4 If the Customer fails to take delivery of the Goods or any part of them on the due date and fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on the due date, the Supplier shall be entitled, upon giving written notice to the Customer, to store or arrange the storage of Goods. In this situation, the risk in the Goods shall pass to the Customer and delivery will be deemed to have taken place. The Customer shall be liable to pay to the Supplier all costs and expenses arising as a result of the failure to take delivery.

10. Risk

The risk in the Goods shall pass to the Customer on the Delivery Date.

11. Title

11.1 Title to the Goods shall not pass to the Customer until the Supplier receives payment of the price (and any other sums that are due or owing to the Supplier) in full, whether or not delivery of the Goods has been made.
11.2 Notwithstanding clause 11.1, title to the Goods shall pass to the Customer upon notification by the Supplier in writing.
11.3 Until title to the Goods passes to the Customer, the Customer shall:

11.3.1 keep the Goods in satisfactory condition, in their packaging and separate from other goods so that they remain readily identifiable as the Supplier's property; and
11.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods.

11.4 The Supplier shall be entitled at any time before the title passes to re-possess and dismantle (without being liable for any damage caused by doing so) all or any of the Goods and for that purpose to enter any premises of the Customer. If in such circumstances the Goods are stored or otherwise held on premises belonging to any third party, the Customer shall procure the right for the Supplier to enter such premises to re-possess and dismantle the Goods.

12. Payment

12.1 Payment for the Goods shall be made within 30 days of the date of the Supplier's invoice unless agreed otherwise in writing by the parties.
12.2 If payment is not received in accordance with clause 12.1, the Supplier shall be entitled:

12.2.1 to charge interest on the outstanding amount at the rate of 4% per annum above the base lending rate of National Westminster Bank Plc, accruing daily from the due date until actual payment of the overdue amount;
12.2.2 to require that the Customer makes a payment in full in advance of any delivery not yet made; and
12.2.3 not to make any delivery in respect of Goods ordered but not yet delivered.

13. Returns

Goods which are not faulty or defective can only be returned with the prior agreement of the Supplier (at the Supplier's complete discretion). Non-faulty or defective goods and their packaging must be returned in re-saleable condition, and at the Customer's own cost, and will be subject to a re-stocking charge of an amount equal to 20% the price paid in respect of the Goods that are returned in accordance with this clause 13.

14. Liability

14.1 Nothing in these Terms and Conditions shall limit or exclude the Supplier's liability:

14.1.1 for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
14.1.2 for fraud or fraudulent misrepresentation;
14.1.3 for breach of the terms implied by section 12 of the Sale of Goods Act 1979 (as amended);
14.1.4 under the Consumer Protection Act 1987; or
14.1.5 for any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

14.2 Subject to clause 14.1:

14.2.1 the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:

a. loss of profits;
b. loss of sales or business;
c. loss of agreements or contracts;
d. loss of anticipated savings;
e. loss of or damage to goodwill;
f. loss of use or corruption of software, data or information; or
g. any indirect or consequential loss arising under or in connection with these Terms and Conditions; and

14.2.2 the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with these Terms and Conditions, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the price of the Goods in relation to which such liability has arisen.

15. Data Protection

15.1 By placing an order in accordance with these Terms and Conditions, the Customer hereby consents to the use of its (and its employee' and agents') Personal Data by the Supplier for the following purposes:

15.1.1 to enable the Supplier to fulfil its obligations under these Terms and Conditions;

15.1.2 for the administration of the Customer's order;

15.1.3 for marketing and promotional purposes; and

15.1.4 to obtain feedback from customers and administer customer surveys.

15.2 The Supplier shall process the Personal Data only to the extent, and in such a manner, as is necessary for the purposes specified in clause 15.1 and shall not process the Personal Data for any other purpose.

16. Intellectual Property

16.1 The Supplier shall retain and own all Intellectual Property Rights in and to the Goods.

16.2 To the extent that the Goods are to be manufactured in accordance with modifications and/or improvements requested by the Customer (the acceptance of which are at the complete discretion of the Supplier), the Customer acknowledges that the Supplier shall own any Intellectual Property Rights in such modifications and improvements and 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 any specification or details supplied with the Customer's request. This clause 16.2 shall survive termination of these Terms and Conditions.

16.3 The Supplier reserves the right to amend the specification of the Goods if required by an applicable statutory or regulatory requirements.

17. Termination

17.1 If the Customer becomes subject to any of the events listed in clause 17.2, the Supplier may terminate these Terms and Conditions with immediate effect by giving written notice to the Customer.

17.2 For the purposes of clause 17.1, the relevant events are:

17.2.1 the Customer 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), 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 has any bankruptcy proceedings initiated or any events analogous to the foregoing occur under the laws of any jurisdiction;

17.2.2 the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

17.2.3 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 these Terms and Conditions has been placed in jeopardy.

17.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under these Terms and Conditions or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 17.2.1 to clause 17.2.3, 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 these Terms and Conditions on the due date for payment.

17.4 On termination of these Terms and Conditions for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.

17.5 Termination of these Terms and Conditions, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.

17.6 Clauses which expressly or by implication survive termination of these Terms and Conditions shall continue in full force and effect.

18. General

18.1 Force Majeure

The Supplier shall not be in breach of these Terms and Conditions nor liable for delay in performing, or failure to perform, any of its obligations under these Terms and Conditions if such delay or failure arises as a result of the occurrence of an event reasonably beyond its control. In such circumstances the Supplier shall be entitled to a reasonable extension of the time for performing such obligations.

18.2 Amendments

These Terms and Conditions may only be amended in writing signed by duly authorised representatives of both parties.

18.3 Entire Agreement

Subject to the incorporation of these Terms and Conditions (if relevant) in the Supplier's form of distribution agreement as amended from time to time, these Terms and Conditions contain the entire agreement between the parties and supersede and replace any prior written or oral agreements, representations or understandings between them.

18.4 Waiver

No failure or delay by the Supplier in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in Agreement are cumulative and not exclusive of any rights and remedies provided by law.

18.5 Severance

If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from these Terms and Conditions and rendered ineffective as far as possible without modifying the remaining provisions of these Terms and Conditions, and shall not in any way affect any other circumstances of or the validity or enforcement of these Terms and Conditions.

18.6 Law and Jurisdiction

The validity, construction and performance of these Terms and Conditions shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the parties submit.

18.7 Headings

The headings of these Terms and Conditions are for convenience of reference only and shall not affect their interpretation.

18.8 Third Parties

For the purposes of the Contract, Rights of Third Parties Act 1999, these Terms and Conditions are not intended to, and do not, give any person who is not a party to it any right to enforce any of its provisions.

18.9 Interpretation

In these Terms and Conditions, unless the context requires otherwise:

18.9.1 words importing any gender include every gender;
18.9.2 words importing the singular number includes the plural number and vice versa;
18.9.3 words importing persons include firms, companies and corporations and vice versa;
18.9.4 the headings to the clauses, schedules and paragraphs of these Terms and Conditions are not to affect the interpretation;
18.9.5 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate by-law made under that enactment; and
18.9.6 where the word "including" is used in these Terms and Conditions, it shall be understood as meaning "including without "Limitation".

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