BLUE COW LIMITED

TERMS & CONDITIONS OF SALE - NOV 2019

1. GENERAL 

(a) In these conditions: 

"Company" means to Blue Cow Limited; Company number; 12081217 Registered address; Kemp House, 160 City Road, Old Street, London EC1V 2NX.

 

“Contract” means any contract or agreement between the Company and the Purchaser for the sale and purchase of the Goods, incorporating these conditions;

"Purchaser" means the person or company who accepts the Company’s Written quotation for the sale of Goods or whose Written order for the Goods is accepted by the Company;

"Goods" means the goods to be supplied to the Purchaser and which are the subject of the Contract;

"Special Items" shall mean consultative services, items or any other services supplied by the Company which are sub-contracted to any 3rd party;

“Terms” means these conditions of sale; 

“Writing or Written” and any similar expression, includes facsimile transmission, electronic mail.

Words in the singular shall include the plural and vice versa. 

(b) The Company shall sell and the Purchaser shall purchase the Goods in accordance with the Company’s Written quotation (if accepted by the Purchaser), or the Purchaser’s Written order (if accepted by the Company), subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Purchaser and whether arising during any negotiations or any course of dealing established between the Company and the Purchaser.

(c) No variation to these Terms shall be binding unless agreed in Writing between the Purchaser and the Company.

(d) The Company’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in Writing. In entering into the Contract the Purchaser acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.

(e) Any advice or recommendation given by the Company or its employees or agents to the Purchaser or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Company is followed or acted upon entirely at the Purchaser’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.

(f) Any typographical, clerical or other minor error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.

(g) No waiver of these conditions shall be valid unless agreed in writing by a director of the Company. The failure of the Company to insist upon strict performance of any of the terms and conditions of the Contract shall not be construed as a waiver of any such term or condition and shall in no way affect the Company's right to enforce such provision later. If any of these conditions of sale is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other conditions and the remainder of the condition in question shall not be affected. 

2. QUOTATIONS & CANCELLATIONS 

(a) The prices and delivery times the subject of any Written quotation issued by the Company shall lapse if the quotation is not accepted by the Purchaser within the period for acceptance stipulated in the quotation provided always that delivery times are estimates only and subject to the provisions of condition 8 (a) below. 

(b) No order which has been accepted by the Company may be cancelled by the Purchaser except with the agreement in Writing of the Company and on terms that the Purchaser shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.

3. PRICES 

(a) The Company does not accept priced orders from any Purchaser and is not bound to supply Goods at the price suggested in such orders. 

(b) Unless otherwise agreed in Writing the price for the Goods shall be set out as in the Company's quotation or as stated its published price list from time to time or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company’s published price list current at the date of acceptance of the Purchaser’s order. 

(c) The Purchaser agrees that acceptance of any quotation shall be by means of an official Written order from the Purchaser to the Company. 

(d) All prices are quoted in GBP£ Sterling unless otherwise agreed by the Company and are valid for 30 days only or until earlier acceptance by the Purchaser, after which time they shall be subject to alteration by the Company.

(e) The Company reserves the right, by giving Written 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 (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for 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.

(f) Except as otherwise stated in the Company’s Written quotation or in any price list of the Company, and unless otherwise agreed in Writing between the Purchaser and the Company, all prices are given by the Company on an ex works basis, and where the Company agrees to deliver the Goods otherwise than at the Company’s premises, the Purchaser shall be liable to pay the Company’s charges for transport, packaging and insurance.

(g) The price together with all other costs and charges are exclusive of any Value Added Tax, duties and levies which shall be payable by the Purchaser in addition to the price at the applicable rates except as set out in paragraph 6 below. 

(h) The Company reserves the right to make a handling charge on any orders, the total invoice price of which (excluding VAT) is less than the Company's minimum order value as notified to the Purchaser from time to time. 

(i) Any orders placed using the companies online ordering system (Megaman Online) are subject to the same terms and conditions of sale as detailed in this document. No responsibility will be taken by the company for orders placed incorrectly or maliciously by a third party who has come into knowledge of the secure log in passwords for the site. The system has a confirmation button and once this is activated the order is deemed accepted at the prices/quantities entered and cannot be cancelled.      

4 PAYMENT 

(a) Payment terms are 7 days net from invoice date.

The Company may consider at its sole discretion, choose to accept payment for products on a Proforma invoice basis. The goods shall not be made available or manufactured until payment has been received by the Company in full and by irrevocable means. The Company may consider a part payment agreement for FOB/CIF sales directly in China subject to a non refundable deposit. The Company reserves the right to refuse transactions without explanation.

 (b) The Company may at its sole discretion establish a credit account for the Purchaser (subject to receipt of references or such other conditions as the Company sees fit). The Company shall be entitled at its sole discretion to withdraw a credit account without explanation but with notice to the Purchaser. The Company may at its sole discretion, to refuse to establish such an account without providing any reason. If such an account is established and remains in operation, payment is due in full, in sterling without any set off, deduction or counterclaim no later than 30 days from date of invoice. The Company reserves the right to review credit limits periodically and may alter any limit as it deems appropriate and any changes will be notified to the Purchaser in Writing. 

(c) The Company may, without prejudice to its other rights, charge interest on any overdue accounts at the rate of 2.5% over the base rate of Barclays Bank plc from time to time to be compounded monthly from the due date until payment in full is made both before and after judgment. Aadditional charges/costs incurred by the company through the instruction of credit/collection agencies or courts will be added to the account and (d) If any amount payable to the Company by the Purchaser on any account is left outstanding beyond the due date for payment, the Company may suspend performance of its obligations under any or all Contracts with the Purchaser. If any outstanding amount is overdue the Company reserves the right, strictly at its own discretion, to treat any outstanding order as cancelled without incurring any costs or other liability as a result of such cancellation. 

(e) The Company shall have the right to invoice the Purchaser for any partial delivery of Goods. 

(f) The Company may request a sum to be paid by the Purchaser in advance. Any advance payment made by the Purchaser at the Company's request shall be held by the Company as a deposit and not a part payment. In such circumstances the order will not be accepted nor the Goods supplied until the deposit is received. Any deposit is non refundable in the event of cancellation of the Contract by the Purchaser.

(g) Payment by credit card is at the sole discretion of the Company and only available to existing account holders and which may be subject to the addition of any bank charges the Company incurs in processing such payment. 

5 TITLE to GOODS

(a) Title to the Goods shall remain with the Company until such time as the Company has received all payments owing to the Company under the Contract and all payments owing to the Company by the Purchaser on any other account whatsoever have been paid in full. This shall not prevent the Company from suing for the price of the Goods. 

(b) While the Goods are the property of the Company, the Purchaser, as bailee, on behalf of the Company, shall keep them safe, insured and separate and identifiable from all other Goods in its possession and shall not charge, pledge or deal with them or allow any lien or other interest to arise over them. 

(c) If any amount owing by the Purchaser to the Company on any account is not paid or the Purchaser ceases or threatens to cease trading or is unable to pay its debts as they fall due, or has any receiver or liquidator appointed over any of its business or assets, or passes a resolution for winding-up, or is the subject of any application, petition or order for administration, winding-up, dissolution or bankruptcy, or enters into any composition or voluntary arrangement with its creditors or is subject to any similar event of insolvency in any other jurisdiction or if the Company reasonably suspects that the Purchaser is likely to be subject to any of the same the Company shall be entitled to the immediate return of the Goods which are the property of the Company and the Purchaser hereby irrevocably authorises the Company to recover the Goods and to facilitate access to the Goods for that purpose. 

6 CARRIAGE & COLLECTIONS

The Company will not deliver Goods to any building site or address unless the Purchaser assumes full responsibility in Writing, for any loss or damage howsoever caused. This type of delivery will be at the absolute discretion of the Company and will incur additional carriage costs. The price for the Goods is exclusive of delivery, insurance, 3rd party expenditure, any other reasonable expenditure incurred in the delivery of the Goods and other services provided by the Company which shall be payable in addition to the price payable for the Goods by the Purchaser unless otherwise agreed in Writing between the parties. The Company may charge the additional costs for supplying any Special Items to the account of the Purchaser.

The company has a carriage paid policy and any order accepted under the minimum order value of £250.00 will automatically be charged carriage at the prevailing lowest service rate. In addition any order under £50.00 will attract a small order charge of £12.50 per order. Next day or timed deliveries can be arranged and the sales office will quote a price at the time of order for this service. The Small order charge and Minimum order value are subject to change without written notice but in this event the sales office will contact the purchaser for approval.  

7 LOSS OR DAMAGE IN TRANSIT 

The Company shall not have any liability for short delivery, loss or damage to Goods occurring during delivery or for non-delivery unless claims to that effect are notified verbally to the Company within 3 days of delivery and confirmed in Writing to the Company within 7 days from delivery (in the case of loss or damage or short delivery) the Purchaser shall facilitate access to the Goods for inspection by the Company of the alleged damage. In the case of non-delivery the Purchaser must confirm in Writing within 7 days of the Company's invoice or advice note. 

8 DELIVERY 

(a) The Company shall use reasonable commercial endeavours to deliver the Goods in accordance with any delivery date notified to the Purchaser. Time of delivery shall not be of the essence and the Company shall not be liable for any business interruption, loss of production, loss of profits, contracts, goodwill or anticipated savings, loss arising from any third party claims or any special, indirect or consequential loss (whether or not foreseeable) howsoever suffered by the Purchaser as a result of any delay in delivery or non-delivery. 

(b) The Company reserves the right to deliver the Goods by instalments and to invoice for each instalment separately. Each delivery shall constitute a separate Contract and any claim by the Purchaser relating to specific instalments shall not itself entitle the Purchaser to any remedy in respect of other instalments. 

(c) Delivery shall be deemed to have taken place when the Company makes the Goods available for collection at its premises to the Purchaser, or its designated carrier whether designated and arranged by the Purchaser or the Company. 

(d) If the Company, at the request of the Purchaser, stores the Goods or arranges for them to be delivered or dealt with otherwise than as stated above the Purchaser shall pay to the Company a reasonable charge (which shall include the cost of insurance) for such service. The Purchaser shall also pay to the Company any additional delivery costs and extra handling costs resulting from the Purchaser's failure to take delivery on the due date and the Company shall be entitled to charge the Purchaser any increase in the Company's list price of the Goods between the due date for delivery and the date on which delivery is actually affected. 

(e) Risk of loss or damage of any kind to the Goods (but not the title) shall pass to the Purchaser on delivery. 

(f) Goods delivered in accordance with a Contract may not be returned without the Company's express Written agreement and subject to the Purchaser reimbursing all the Company's costs relating to the sale Contract. 

9 EXPORT 

(a) This condition applies where Goods are supplied for export from the United Kingdom. 

(b) Unless expressly stated in the Company's acknowledgement of the Purchaser's order, prices are ex-works. Delivery and the preparation of all export documentation may be arranged by the Company at the Purchaser's request, in which case extra charges for such services shall be payable by the Purchaser. 

(c) The Purchaser is responsible for complying with all laws and regulations governing the import of the Goods into any country and for ensuring that the Goods comply with all laws, regulations and licensing requirements of any country to which they are exported. The Purchaser shall indemnify the Company against the consequences of any breach of those laws, regulations and licensing requirements. 

(d) Section 32(3) of the Sale of Goods Act 1979 shall not apply. Where Goods are handed to a carrier or United Kingdom port for export to the Purchaser, that carrier or port shall be treated as an agent of the Company for the purposes of section 44, 46 and 48 of the Sale of Goods Act 1979. 

10 WARRANTY AND LIABILITY 

(a) The Company will use its reasonable endeavours to assign to the Purchaser the benefit of any warranty or guarantee it receives from its supplier or the manufacturer of the Goods.  

(b) Subject to condition 10 (a) above and the following provisions the Company warrants that the Goods will correspond with their specification at the time of delivery to the Purchaser and will be free from defects in material and workmanship for a period of 2 years for Compact Fluorescent Lamps, 5 years for LED Lamps and LED Fittings and drivers from the date of Purchase. All discharge light sources for sale are qualified under IEC 60064 which states that the survival of lamps is based on average rated life. This is determined by legislation at the point when 50% or more lamps survive. LED lamps are based on industry standard L70, B20 life conditions.

If the purchaser ceases trading then if any end user produces evidence of purchase of the goods or any quantity of them from the purchaser to the reasonable satisfaction of the company, that end user shall be entitled to the replacement of any defective goods which do not comply with the warranty contained in this condition 10 (b) but subject always to the time limits above and the conditions below. 

(c) The above warranty is given by the Company subject to the following conditions:

(i) the Company shall be under no liability in respect of any defect arising from fair wear and tear outside of the warranty period, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s or the manufacturer’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Company’s approval;

(ii) the Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.

(iii) The company shall under no circumstances be responsible for any liability, quality issues or costs arising from sourcing recommendations or introductions to factories. Any supplier the company introduces to customers will be completely independent and customers buy products of their own choice, free will and responsibility.

(d) Subject as expressly provided in these Terms, and except where the Goods are sold to the Purchaser who is 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.

(e) Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Purchaser are not affected by these Terms.

(f) A claim by the Purchaser which is based on any defect in the condition of the Goods shall (whether or not delivery is refused by the Purchaser) be notified to the Company within three days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time 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 in their condition, and the Purchaser shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

(g) Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Terms, the Company may 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), in which case the Company shall have no further liability to the Purchaser for any consequential loss.

(h) Except in respect of death or personal injury caused by the Company’s negligence, or liability for defective products under the Consumer Protection Act 1987, the Company shall not be liable to the 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 (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Purchaser, and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms.

(I) The Company shall not be liable to the Purchaser or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control:

(i) Act of God, explosion, flood, tempest, fire or accident;

(ii) Act of terrorism

(iii) war or threat of war, sabotage, insurrection, civil disturbance or requisition;

(iv) acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

(v) import or export regulations or embargoes;

(vi) strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);

(vii) difficulties in obtaining raw materials, labour, fuel, parts or machinery;

(viii) power failure or breakdown in machinery.

(j) Goods subject to any claim for defect as provided for above must be available for inspection by the Company for a period of 21 days from the date of the notice of such defects. 

(K) The Goods are not sold by description or sample. 

(L) Without prejudice to the generality of the foregoing nothing herein contained shall operate to exclude or restrict liability for breach of any obligation arising from section 13, 14 or 15 of the Sale of Goods Act 1979 as against a Purchaser dealing as a "Consumer" as defined by section 12 of the Unfair Contract Terms Act 1977. 

(M) All Goods are manufactured and tested to operate with electrical operating equipment which is approved by the Company and identified on the list of approved electrical equipment available on the Company’s website www.blue-cow.co.uk or contained in the instructions for use packed with the Goods or on request from the Company. The Purchaser must satisfy itself that the Goods will operate with electrical equipment which is not on the Company’s approved list. If the Goods are intended for use with equipment not on the approved list or if the operating equipment manufacturer should make any changes to the specification or design of equipment on the approved list, this may have an impact on the original test results and compromise the compatibility of the Goods for use with such equipment. The Company therefore cannot be held liable for any failure in the operation of the Goods in these circumstances.

11 LIGHTING DESIGN SERVICES 

(a) The Company may, at the request of the Purchaser, agree to supply the services of an Independent third Party Lighting Design Engineer ("Lighting Design Services") to develop a lighting scheme ("the Lighting Scheme") for which there may be an additional charge. The Company is under no obligation to supply Lighting Design Services. 

(b) The contract for any such Lighting Design Services will be strictly between the Purchaser and the Lighting Design Engineer and as such the Terms and Conditions of the Lighting Design Engineer will apply to the contract. The Company is not responsible for any negligence of the Lighting Design Engineer howsoever caused nor any loss arising from it.

(c) The Purchaser shall permit the Company and any appointed Lighting Design Engineer access to its premises and the Purchaser shall provide such other assistance as may be necessary to enable the Company to provide Lighting Design Services. Any drawings, plans, reports, specifications or other material arising from the development of the Lighting Scheme shall remain the absolute property of the Company and the Lighting Design Engineer. 

(d) The Company or the Lighting Design Engineer shall be under no obligation to remedy defects in the lighting system which arise from its reliance on information, specifications or data supplied by the Purchaser. 

(e) The Company shall not be liable for any business interruption, loss of profits, contracts, goodwill or anticipated savings, loss arising from any third party claims or an special indirect or consequential loss (whether or not foreseeable) to the Purchaser which may arise as a result of the Lighting Scheme failing to meet the Purchaser's requirements or for problems arising or which may arise as a result of incorrect installation of the Goods by or on behalf of the Purchaser or arising or which may arise as a result of the Purchaser failing to use the Goods as specifically recommended by the Purchaser for the purposes of the Lighting Scheme. Save as expressly provided in these conditions all terms, conditions, representations and warranties (whether express or implied) relating to the sale of goods and/or the supply of services are excluded to the fullest extent permitted by law. 

12 CANCELLATION OF ORDERS  

Notice in writing of any cancellation must be provided by the Purchaser to the Company. There can be no cancellation of an order by the Purchaser without the Company's Written consent. In the event of other default by the Purchaser, and without prejudice to any of the Company’s remedies, a cancellation charge will be made equal to 25% of the order value, or in the case of Goods manufactured or created specifically to the Purchaser’s order, the charge shall be the proportion of the price which represents the proportion of the Goods which have been completed, which ever is the greater. The Purchaser will indemnify the Company in respect of any third party claims arising out of the Purchaser's repudiation or suspension or cancellation of any order or orders. 

13 RETURNS 

The Company does not operate a sale or return facility. The Purchaser does not have the right to return Goods supplied in compliance with these Terms without the prior Written consent of the Company whether in a Saleable condition or not. If the Purchaser returns Goods without prior Written consent and where the Goods have been supplied in accordance with these Terms or any Purchase order, notification will be sent to the Purchaser requesting the collection of the unauthorised Goods. Collection of the unauthorised Goods must be made by the Purchaser at their expense WITHIN 14 DAYS OF NOTIFICATION, after which time the Goods will be destroyed and recycled. Any costs incurred by the Company to dispose or destroy such Goods shall be charged to the Purchaser. 

14 DESCRIPTIVE MATTER AND ILLUSTRATIONS 

(a) All descriptive and forwarding specifications, drawings and training aids issued by the Company are approximate only and are intended only to present a general idea of the Goods described therein and nothing contained in any of them shall form part of any Contract with the Company. 

(b) The Company reserves the right to vary the technique, design, construction and specification of Goods without notice. Such changes may result in slight variations in details from the description or illustrations in Company literature which shall not entitle the Purchaser to rescind the contract. 

15 INTELLECTUAL PROPERTY 

The Company reserves all intellectual property rights in the Goods and any tools used to produce them, including but not limited to copyright, patents, registered and unregistered trademarks, product and brand images and confidential know-how. The Purchaser may not use any such rights without the Company’s Written consent and nothing in this Contract or any other contract between the parties shall operate as a transfer of or a licence to use any intellectual property rights in respect of the Goods. Where the Company has granted permission to use product and brand images, it shall be in absolute accordance with the brand guidelines document (copy available on request). Improper use and deviation from the guidelines may result in the recall or destruction order of the incorrect material at the cost of the Purchaser.

16 USE AND DISCLOSURE OF PERSONAL DATA 

By entering into this contract the Purchaser consents to the processing by or on behalf of the Company of personal data as defined by the Data Protection Act 1998 (the "DPA") supplied by the Purchaser to or held by the Company (the "Personal Data") for the purposes of administering the Purchaser's account and any related orders, including but not limited to undertaking credit assessment with appropriate third parties, obtaining references, and marketing. Unless otherwise specifically indicated the Purchaser consents to the use of such Personal Data for direct marketing purposes or disclosure by the Company to third parties of such Personal Data for marketing purposes. The Purchaser's statutory rights under the DPA are unaffected. 

17 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 

For the purposes of section 1(2) of the Contracts (Rights of Third Parties) Act 1999 the parties state that they do not intend any term of this agreement to be enforced by third parties. 

18 NOTICES 

Any notices to be served under these conditions must be in writing and delivered personally, sent by first class prepaid post or sent by facsimile transmission, in the case of the Company to its registered office and in the case of the Purchaser to the address in its order or otherwise notified in writing to the Company. Notices will be treated as served when delivered (if delivered personally) two days after posting (if posted as aforesaid) and one day after transmission (if sent by facsimile transmission). 

19 REPRESENTATION 

No employee of the Company, other than a Director, is authorised to make any statement, warranty or representation as to the Goods. The Purchaser therefore shall not be entitled to rely or seek to rely upon any statement made by an employee, or agent other than a written statement of a Director of the Company. 

20 GOVERNING LAW AND JURISDICTION 

Any contract between the Company and the Purchaser shall be governed and construed in accordance with English law. The Purchaser submits to the exclusive jurisdiction of the English Courts but the Company may enforce any such contract in any court of competent jurisdiction. 

© Blue Cow Limited 29 November 2019