OPTICON LTD. TERMS AND CONDITIONS OF BUSINESS
1. Definitions: In these Terms and Conditions of Business: -
“Contract” means the contract entered into on Opticon’s acceptance of the Customer’s Order.
“Customer” means the other contracting party
“Order” means the Customer’s Order of Goods or Services
“Goods” means all products hardware and software supplied by Opticon.
“Services” means all services supplied by Opticon these may include but are not limited to: RF Site Surveys.
Consultancy drawing up software specifications. Installation work and repair and maintenance services.
“Pilot” means the simulation study produced by Opticon in accordance with the proposal.
“Proposal” means Opticon’s Proposal or Quotation for the supply of Goods and Services.
“OPT” means Opticon (UK) Limited.
“Specification” means OPT’s specification for the Goods and Services
“Total Contract Price” means the aggregate price of all Goods and/or Services (excluding VAT) supplied by OPT under the contract.
2. Terms and Conditions of Business:
These Terms and Conditions of Business shall be deemed to be incorporated in all Contracts entered into between OPT and the Customer and all Goods and Services supplied shall be pursuant to a contract incorporating these Terms and Conditions of Business. No alteration to the Terms and conditions of Business will be effective unless made in writing and accepted by a Senior Manager of OPT.
3. Proposal:
All proposals or quotations shall be subject to these Terms and Conditions of Business and unless otherwise stated or unless withdrawn by OPT shall be valid for the period of thirty (30) days from the date of the quotation. The quotation is not an offer to proceed and the Customer is required to place a written order with OPT using the same reference as on the proposal.
4. Fees and Prices:
(a) All prices are as stated in the Proposal and are exclusive of VAT or other applicable taxes, duties or levies.
(b) OPT reserves the right at any time prior to delivery to vary the price proposed for the Goods and/or Services if following the date of the Order the cost of supplying the Goods and/or Services is increased by any other factor beyond the control of OPT. If any such variation in the net price of the Goods and/or Services results in an increase in such price of more than five per cent (5%) the Customer may cancel the order by so notifying OPT in writing within seven (7) days of notice of such increase. (not applicable to price variations due to changes in the exchange rate the Euro – British pound)
(c) All prices are based on the Euro – British Pound exchange rate at the date of the proposal. If any changes in the exchange rate occur between the date of proposal and the actual date of invoicing in excess of five per cent (5%) then OPT may in it’s absolute discretion adjust the prices accordingly.
(d) Where Goods, Material or Services are purchased on behalf of the Customer under the Contract OPT reserves the right to apply a purchase surcharge.
(e) Travelling time to the Customer’s premises or elsewhere will be charged at OPT’s hourly rate for services in addition to a mileage charge.
5. Payment:
(a) Unless otherwise agreed with OPT in writing payment is to be made against OPT’s invoice within 30 days of the date of invoice.
(b) Any sums not paid on the due date shall be subject to an interest charge at the rate of 4% per annum above the Base Rate of Barclays Bank PLC from time to time compounded monthly on all amounts overdue until payment therefore such to run from day to day and to accrue after as well as before any judgement.
(c) All goods and services supplied without a credit amount being in operation will be invoiced and paid for prior to commencement of the contract.
(d) Any deposit or prepayment will not be refunded.
(e) The Customer will reimburse OPT for all costs (including legal costs) and all VAT thereon incurred by OPT in suing for recovery of any invoice due under the Contract.
(f) The time of payment of the price shall be of the essence.
6. Opening of Credit Accounts:
(a) The opening and operation of credit accounts is at the sole discretion of OPT.
(b) A Customer wishing to open a credit account should submit at least two trade references from suppliers with whom it has had previous trading relationships together with its bankers name and address from whom a reference may be obtained.
(c) Credit facilities may be terminated or limited at any time without prior notice.
7. Delivery and Commencement of Works:
(a) Work will be undertaken or Goods will be supplied by OPT as expeditiously as may be possible but the company shall not be liable in respect of any failure t meet any specified completion or delivery date saver that where such a date is specified OPT will use all reasonable endeavours to ensure such services are carried out by the due date having regard to the nature of the time of receipt of the Customers order and any other delays outside of OPT’s control.
(b) All dates and times specified to the Customer for the provisions of Goods and/or Services are estimates only and OPT shall not have any liability for delay or for any damages or losses sustained by the Customer as a result of such dates or times not being met. The Customer shall not be entitled to refuse acceptance of the Goods or Services as a consequence of such delay.
(c) OPT may in it’s absolute discretion withhold delivery of Goods and/or the supply of Services pending payment of any sum due from the Customer to OPT.
8. Payment:
Travel, subsistence and out of pocket expense incurred in supplying Services will be charged at cost unless otherwise agreed in the proposal.
9. Customer’s Obligations: The Customer shall:
(a) Make available to OPT such office and other facilities as may be require for the provision of the Goods and/or Services.
(b) Ensure it’s employees co-operate fully with OPT.
(c) Furnish OPT with the documentation, data and other information relating to its business required by OPT for the supply of Goods and/or Services.
10. Specification:
(a) The Goods and/or Services will be supplied generally in accordance with the specifications. OPT’s policy is one of continuous development and consequently the specifications may vary from time to time. OPT will not accept reliability in respect of variations from the specifications except where any variation from the specification is material.
(b) All specifications, drawings, designs, plans and technical descriptions submitted with or in connection with any quotation or acknowledgement of OPT are OPT’s copyright.
(c) OPT recommends that all Specifications for Pilots and/or Services are in writing and are signed for acceptance by both OPT and the Customer.
11. Forecasts and Pilot Accuracy:
(a) OPT undertakes to provide the Goods and Services with all reasonable skill and care to provide the Pilot detailed in the Proposal.
(b) The Customer acknowledges that accuracy of Pilots and/or Services are dependant on the information provided and may include estimated or unknown data. OPT therefore accepts no liability for any failure of the Pilot or Services to meet the Customer’s expectations.
(c) Notwithstanding the obligation accepted in paragraph 11(a) OPT shall be under no liability to the Customer for loss or damage arising for the Customer’s use of the Pilot and/or supplied Goods and/or Services (other than personal injury or death occasioned by OPT’s negligence) and in particular shall not be liable for any consequential loss whether foreseeable or not and in particular shall not be liable for financial loss or loss of profits, contracts, business, anticipated savings, use or goodwill.
(d) Where instructions or advice are received or given orally by OPT. OPT shall have no liability to the Customer for any misunderstanding or misinterpretation which may arise in relation thereto whether on the part of OPT or the Customer.
(e) Employees or agents are not authorised to make representations.
12. Intellectual Property:
(a) All ideas, specifications, concepts and know-how relating to the provisions of Services and/or Pilots remains the sole property of OPT.
(b)The Pilot shall remain the property of OPT until full payment has been received from the Customer.
(c) The Customer shall on full payment of OPT’s invoice be entitled to use the Pilot for it’s internal business purposes only and shall not permit the use of the Pilot for any other purpose of permit any third party to use the Pilot nor use the Pilot on behalf of or for the benefit of any third party.
(d) The Customer shall be responsible for ensuring that the supply and fitting of goods complies with every applicable state order and council regulation or direction of government, local or other authority an din particular that he has lawfully obtained any necessary license, permit or authority required in connection therewith.
13. Return of Goods:
(a) Where Goods have been supplied under the Contract these may not be returned for credit except by OPT prior written agreement.
(b) All requests for credit or returned goods must be accompanied by the invoice number and date together with details of the reason for return.
OPT reserves the right to levy a restocking charge equivalent to 20% of the value of the returned goods.
14. Loan of Goods and/or Services
(a) Unless otherwise agree by OPT in writing, no loan period for Goods and/or Services shall exceed 30 days.
(b) OPT will invoice the Customer for the Goods and/or Services when the loan period has expired and the Customer has failed to return the relevant Goods and/or Services. The loan will then be considered to be a contract. OPT reserve the right to refurbish the equipment and charge for work done.
15. Title:
Until payment in full has been made by the Customer of all sums owing or due to OPT on any account whatsoever whether in respect of OPT’s Goods and/or Services or otherwise:-
(a) The property of the Goods supplied by OPT whether mixed with or made accessions to other goods of the Customer or a third party shall remain with OPT.
(b) The Customer shall be a liberty to sell the Goods in the ordinary course of business. The proceeds of any such sale ad the benefit of any such contract sale shall be the property of OPT and held in trust for OPT absolutely.
(c) OPT may by written notice terminate the Customer’s power of sale at any time if the Customer goes or threatens to go into receivership or liquidation and at any time after the termination of the power of sale OPT may repossess the Goods and for this purpose the Customer hereby grants to OPT an irrevocable license to enter upon any premises of the Customer.
(d) The ownership of the Goods delivered by OPT will only be transferred to the purchaser when he has met all that is owing to OPT no matter on what grounds. Until date of payment the Customer, if OPT desires is required to store and insure the Goods in such a way that it is clearly the property of OPT. If the Customer sells the material to a third party prior to having fully paid OPT he will do so an agent for OPT and account to OPT for the proceeds of the sale.
16. Guarantee:
(a) Unless otherwise stated, OPT guarantee products sold as new as being free from defects due to faulty material or workmanship for a period of 24 calendar months from the date of delivery to the Customer.
(b) The liability of OPT under this guarantee shall be limited to the replacement of parts found defective and making good all defects from faulty material or workmanship, provided the Goods have been used solely for the purpose for which they are intended and not due to wear and tear, misuse, neglect or improper adjustment.
Notice in writing of any such defects should be sent to OPT immediately they are known.
(c) If OPT accepts liability, the repaired or replaced Goods will be delivered free of charge to the Customer’s place of business.
(d) Liability is not accepted for the Goods and/or services which have not been installed by the Customer to the required standards of the industry and/or instructions of OPT.
(e) Liability is not accepted by OPT for Goods, the payment of which has not been made in accordance with the agreed payment terms.
(f) Liability is not accepted by OPT if any party other than OPT has repaired or attempted to repair the supplied Goods without the expressed permission of OPT.
(g) Unless otherwise stated, OPT guarantee all batteries for the period of 90 days.
(h) Liability is not accepted by OPT for any cables other than those that are found to have defects due to faulty material or workmanship.
17. Amendments or Cancellations:
Once accepted by Opt no order can be amended or cancelled except with OPT’s written approval an upon Terms which indemnify OPT against and losses including loss of profit or additional costs resulting there from.
18 Termination:
Without prejudice to any claim or right in might otherwise make or exercise OPT shall have the right forthwith to determine the Contract by notice and to claim for any losses, costs or expenses thereby incurred if the Customer commits any serious breach of any of these Terms and Conditions of Business or if the Customer makes or offers to make any arrangement or composition with creditors or commits any act of bankruptcy, or if any petition or receiving in bankruptcy is presented or made against the Customer, or if any resolution or petition to wind up the Customer is passed or presented otherwise than for reconstruction or amalgamation or if a receiver of the Customer’s undertaking property or assets or any part thereof is appointed or if a third party seizes or threatens to seize the Goods before legal ownership has passed to the Customer in accordance with Clause 11 above.
19. Forwarding Instructions:
Forwarding instructions where required shall be specified by the Customer in the written purchase order. If no forwarding instructions are specified by OPT shall appoint a transport company and charge the Customer accordingly.
20. Damage in transit and non-delivery:
No claim for damage in transit and non-delivery will be accepted by OPT and it shall not be liable unless OPT and the carrier are notified in writing within ten days of delivery. In default of compliances by the Customer the Customer shall pay for such Goods and/or Services not delivered or damaged in transit, without prejudice to OPT’s rights otherwise arising. The practice of signing for Goods and/or Services ‘not examined’ does not absolve the Customer from this condition.
21. Taxes:
(a) Orders for supply within the UK: All prices are exclusive of Value Added Tax which will be charged at the rate at the date of invoice.
(b) Orders for supply outside the UK: All prices are exclusive of all taxes, charges or levies of any kind whether payable on the supply of the Goods and/or Services to destinations outside the UK otherwise, and these are payable to the Customer.
22. Entire Agreement:
These Terms and Conditions of Business supersede all previous conditions, understandings, commitments, agreements or representations whatsoever whether oral or written relating to the subject matter hereof and shall not be varied except with OPT’s written consent.
23. Construction:
If any of the words or provisions of the Terms and Conditions of Business shall be deemed to be invalid for any reason then the Terms and Conditions of Business shall be read as if the invalid provisions had to that extent been deleted there from and the validity of the remaining provisions of the Terms and Conditions or Business shall not be affected thereby.
24. Headings:
The Headings in these Terms and Conditions of Business shall not be deemed to be part hereof or be taken into consideration in the interpretation or construction hereof or of the Contract.
25. Force Majeure:
OPT shall not be liable for any delay and/or breach in performing any of its obligations under these Terms and Conditions of Business if such delay and/or breach is caused by circumstances beyond its reasonable control.
26. Notice:
Any notice required or permitted to be given by either party to the other under these Terms and Conditions of Business shall be in writing addressed to the other party and sent in the case of OPT to its registered office an din the case of the Customer to its normal place of business.
27. Waiver:
Any failure by OPT to exercise any of the rights under these Terms and Conditions of Business shall not constitute or be deemed to be a waiver or forfeiture of such rights.
28. Jurisdiction:
These Terms and Conditions of Business shall be subject to English Law and the parties submit to the jurisdiction of the English Courts.
Download: GENERAL TERMS & CONDITIONS of Opticon Sensors Europe B.V., (English)