Conditions of Sale: Terms and Conditions
1. Definitions. In these Conditions:
- 1.1 the following words and expressions have the following meanings and, in addition, any words and expressions defined in any Condition will have the same meaning when used in any other Condition:
- “Buyer” means the person named as the customer in the Proposal;
- “Conditions” means these terms and conditions of sale, as varied from time to time in accordance with Condition 12.2;
- “Confidential Information” means the terms of the Contract and any information that relates to Optical Filters (or any of its affiliates or businesses) and which is disclosed to the Buyer in connection with the Contract, but excluding information that is: at the relevant time in the public domain (other than by virtue of a breach of Condition 12.13, was received by the other party from a third party who did not acquire it in confidence, or is developed by the Buyer without any breach of the Contract;
- “Contract” means the contract between Optical Filters and the Buyer for the sale of Goods formed in accordance with Condition 2.2 or Condition 2.5 (as applicable);
- “Goods” means the goods set out in the Proposal;
- “Liability” means liability arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including any liability under an indemnity contained in the Contract and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any obligations under the Contract and/or any defect in any of the Goods, in each case howsoever caused including if caused by negligence;
- “Order” means an order for the sale of Goods by Optical Filters set out in the Buyer’s acceptance of the Proposal;
- “Order Acknowledgement” means Optical Filters’ acceptance of the Order;
- “Optical Filters” means Optical Filters Limited (registered number 02289077) whose registered office is at Unit 18 Thame Park Business Centre, Wenman Road, Thame, Oxfordshire, United Kingdom, OX9 3XA;
- “Price” means the purchase price for the Goods as set out in the Proposal;
- “Proposal” means as defined in Condition 2.1;
- 1.2 all headings are for ease of reference only and will not affect the construction or interpretation of these Conditions; and
- 1.3 references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality).
2. Contract Formation.
- 2.1 Offer. Optical Filters' written proposal and/or quotation (collectively, the "Proposal") constitutes an offer for the sale of Goods to the Buyer on these Conditions.
- 2.2 Acceptance. A contract for the sale of Goods by Optical Filters to the Buyer on these Conditions shall be formed when Optical Filters accept the Order by issuing an Order Acknowledgement.
- 2.3 These Conditions are the only terms and conditions on which Optical Filters will supply goods to the Buyer and shall apply to the exclusion of all other terms and conditions including any terms and conditions which the Buyer purports to apply under any Order or other documents issued by the Buyer and any terms and conditions which may otherwise be implied by trade, custom, practise or course of dealing. Optical Filters' execution or acknowledgement of any Order or document issued by the Buyer shall constitute only an acknowledgement of receipt thereof, and shall not be construed as an acceptance of any of the terms and conditions that may be contained therein.
- 2.4 The Buyer's issuance of an Order or other document which purports to reject some or all of these Conditions by virtue of the Buyer's standard form language, or otherwise, shall not constitute rejection of these Conditions.
- 2.5 Where the Buyer specifically objects to any of these Conditions in a separate written notice signed and dated by the Buyer and delivered to Optical Filters contemporaneously with the Buyer's Order, no contract shall be formed unless and until a director of Optical Filters agrees to accept in writing and signs the Buyer's proposed modifications to these Conditions. For the avoidance of doubt, Optical Filters is under no obligation to accept the Buyer’s proposed modifications to these Conditions.
3. Purchase and Sale of Goods.
- 3.1 The Buyer agrees to buy and Optical Filters agrees to sell the Goods for the Price in accordance with the terms of the Contract.
- 3.2 The Buyer shall (a) provide Optical Filters with all such information and assistance as Optical Filters may reasonably require from time to time to perform its obligations or exercise its rights under the Contract, (b) not remove or alter any trade marks, patent numbers, serial numbers or other identifying marks on the Goods or their packaging, (c) comply with Optical Filters’ instructions in connection with any product recall initiated by Optical Filters’ involving the Goods (or any of them), and (d) obtain such import licences, permits, consents and authorisations as may be required for the importation of the Goods.
- 3.3 Optical Filters reserves the right at any time to substitute substantially comparable goods for the Goods and/or substitute the raw materials used in the Goods to the extent that (a) this does not materially affect their quality or performance, or (b) this is necessary to comply with any health and safety or other legal requirements. Optical Filters will use reasonable endeavours to give the Buyer prior notice of any such substitution.
- 3.4 All samples, drawings, descriptive and illustrative matter and advertising issued or published by Optical Filters whether in catalogues, brochures, websites, other promotional material or otherwise are for the sole purpose of giving an approximate idea of the relevant Good.
- 3.5 Subject to Condition 7.3, all warranties, conditions and other terms implied by law (whether by statute, common law or otherwise) are excluded from the Contract.
4. Price and Payment.
- 4.1 Generally. The Buyer shall pay the Price, all applicable taxes, freight charges, and all other applicable charges in full, in British Pounds Sterling (GBP) unless otherwise agreed, without any deduction or withholding including on account of any claims, set-offs or recoupment on account of the Contract or any other matter between the parties within the time periods set out in Condition 4.2, below. Any sum payable under the Contract is exclusive of value added tax (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable in addition to that sum in the manner and at the rate prescribed by law from time to time. The Buyer shall defend, indemnify and hold Optical Filters harmless from any claim, loss, damage, liability or expense incurred with regard to the payment of any such taxes or duties.
- 4.2 Invoicing. Optical Filters will be entitled to invoice the Buyer for the Price for the Goods and any other costs payable by the Buyer in addition to the Price (1) on shipment if credit terms have been granted to the Buyer by Optical Filters; or (2) immediately if no credit terms have been granted to the Buyer by Optical Filters.
- 4.3 Payment. Unless otherwise specified by Optical Filters in the Proposal, the Buyer shall pay the Price within thirty (30) days from the date of Optical Filters' invoice if credit terms have been granted to the Buyer by Optical Filters or if credit terms have not been granted then the Buyer shall pay the Price immediately against a pro-forma invoice. Payment shall not be contingent upon installation or upon field tests. If any sum payable under the Contract is not paid on or before the due date for payment Optical Filters will be entitled to charge the Buyer interest on that sum at a rate of two per cent (4%) per annum above the base rate of the Bank of England from the due date until the date of payment, such interest to accrue on a daily basis.
- 5.1 Date. Any delivery date stated in the Contract is approximate only and shall not constitute any guarantee of delivery on any particular date. Time shall NOT be of the essence of the Contract.
- 5.2 Terms. Unless otherwise specified by Optical Filters in the Proposal, delivery of the Goods shall be Ex-Works Optical Filters' factory, Unit 18 Thame Park Business Centre, Wenman Road, Thame, OX9 3XA, United Kingdom (as such term is defined in Incoterms 2010). Delivery of the Goods (“Delivery”) will be deemed to occur when Optical Filters completes its delivery obligations under that Incoterm. Any delivery terms specified in the Proposal shall be construed in accordance with Incoterms 2010.
- 5.3 Freight. Notwithstanding the provisions of Condition 5.2, above, if requested by the Buyer in writing, Optical Filters shall liaise with the Buyer’s employees, agents or subcontractors to arrange for the carriage of the Goods at the Buyer’s risk. The Buyer shall be solely responsible for the cost of carriage of the Goods, regardless of any delivery terms (including Incoterms) specified in the Proposal.
- 5.4 Risk of Loss; Title. Risk of damage to or loss of the Goods shall pass from Optical Filters to the Buyer in accordance with the delivery terms applicable to the Contract, as specified in Condition 5.2, above. Title to the Goods shall not pass from Optical Filters to the Buyer until Optical Filters has received in full in cleared funds all sums due to Optical Filters in respect of the Goods. The Buyer may resell the Goods in the ordinary course of its business and, if it does so, title to the Goods will pass to the Buyer immediately prior to the Buyer entering into a binding contract for the sale of those Goods. If the Buyer resells any Goods, the Buyer will hold such part of the proceeds of sale as represents the amount owed by the Buyer to Optical Filters in trust for Optical Filters and will account to Optical Filters accordingly. Until title to the Goods has passed to the Buyer, the Buyer will hold the Goods on a fiduciary basis as Optical Filters’ bailee.
- 5.5 Force Majeure. Optical Filters shall not be responsible to the Buyer or any third party for any damages resulting from any failure or delay in manufacturing or shipping due to any cause beyond Optical Filters' reasonable control, including, but not limited to: (1) intervening legal requirements or governmental directives; (2) acts of God; (3) force majeure; (4) labour disputes; (5) delays caused by Optical Filters' suppliers or vendors; or (6) war, terrorism, adverse weather conditions or similar disruptions.
- 5.6 Delay. Notwithstanding any other term of the Contract Optical Filters’ will not be in breach of the Contract to the extent that its failure to perform or delay or defect in performance of its obligations under the Contract arises as a result of (1) any breach by the Buyer of its obligations contained in the Contract, (2) Optical Filters relying on any incomplete or inaccurate data provided by a third party, or (3) Optical Filters complying with any instruction or request by the Buyer or one of the Buyer’s employees, officers, directors, representatives, agents and/or subcontractors.
- 5.7 Consequences of Delay. If shipment is delayed by the Buyer as a result of the events set out in Conditions 5.5 or 5.6, Optical Filters shall arrange for the storage of the Goods at the Buyer's sole expense. In such event, risk of loss to the Goods shall pass to Buyer upon placing the Goods in storage, unless risk of loss has already passed to the Buyer pursuant to the delivery terms applicable to this Contract, as specified in Condition 5.2, above, in which case risk of loss shall remain with the Buyer.
- 6.1 Viz-Bond Warranty. Optical Filters warrants the Viz-Bond® adhesive system against bond failure for a period of twelve (12) months from the date of application of the bond, provided that the Viz-Bond® is used within the parameters disclosed in the Viz-Bond® data sheet.
- 6.2 Limited Warranty. Optical Filters warrants that for a period of twelve (12) months from the date of shipment of the Goods, the Goods shall be free from defects in material and workmanship.
- 6.3 Exclusions. The warranties in this Condition 6 do not: (a) cover any third party components in the display head assembly specified by or supplied by the Buyer; (b) include the cost of any root cause analysis carried out by or on behalf of the Buyer; (c) extend to costs associated with: (i) recovering installed Goods; (ii) replacing any third party components damaged during rework of the Goods; or (iii) the return and installation of reworked or replacement goods; (4) extend to any Goods that include third party components specified by the Buyer to which Optical Filters has raised valid technical concerns; and (5) cover damage to the Goods and/or other products, components and/or property due to incorrect installation of the Goods or the use of components or processes in the installation of the Goods that are chemically incompatible with the substrates, coatings and adhesives of the supplied Goods.
- 6.4 Exclusive Warranty. Subject to Condition 7.3, the warranties set out in this Condition 6 are the exclusive warranties given by Optical Filters with respect to the Goods and are in lieu of all other warranties, whether express, implied or statutory, including any warranty of merchantability or fitness for a particular purpose, both of which are hereby expressly disclaimed. Any warranties offered by the original equipment manufacturer of any electronic components, including but not limited to touch sensors and LCD displays, will be void upon modification of any electronic components. Modification includes, but is not limited to, optical bonding and lamination. Optical Filters, therefore, does not offer any warranties with regard to modified electrical components.
- 6.5 Limitation of Remedies for Breach of Warranty. Subject to Condition 7.3, in the event of a breach of the limited warranty set forth in this Condition 6, the Buyer's sole remedy, and Optical Filters' sole Liability, is limited to the repair or replacement of the Goods, once more, at Optical Filters' option.
7. Limitation of Damages.
- 7.1 Exclusion of Certain Losses and Damages. Subject to Condition 7.3, in no event shall Optical Filters or Optical Filters' employees, officers, directors, representatives, affiliates, agents and/or subcontractors have any Liability to the Buyer for any indirect, consequential or special losses or incidental or punitive damages incurred by the Buyer or any third party. Subject to Condition 7.3, Optical Filters will have no Liability to the Buyer for (1) the Buyer's lost production, sales and/or profits; (2) the Buyer's loss of use of the Goods and/or any other equipment; (3) the Buyer's cost of capital; or (4) any claims of customers of the Buyer against the Buyer or Optical Filters, in all four cases, whether direct, indirect or consequential. Such limitations shall apply regardless of whether Optical Filters has been advised or otherwise made aware of the possibility of such losses or damages arising.
- 7.2 Limitation on Amount. Notwithstanding any other provision of the Contract, the total Liability, in the aggregate, of Optical Filters and Optical Filters' employees, officers, directors, representatives, affiliates, agents and subcontractors to the Buyer or any third party claiming through or under Buyer for any claims, actions, proceedings, losses, damages, costs or expenses arising out of or relating to the Contract, or the breach thereof, shall not exceed the total consideration paid or payable by Optical Filters from Buyer under the Contract.
- 7.3 Non-Excludable Liabilities. Nothing in the Contract will operate to exclude or restrict Optical Filters’ Liability (if any) to the Buyer: (1) for death or personal injury resulting from its negligence or the negligence of a person for whom it is vicariously liable (negligence being as defined in Section 1(1) Unfair Contract Terms Act 1977), (2) for its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by a person for whom it is vicariously liable, (3) for breach of its obligations arising under section 12 Sale of Goods Act 1979, (4) for breach of its obligations arising under Section 2 Supply of Goods and Services Act 1982, (5) arising under Section 2(3) Consumer Protection Act 1987, or (6) for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.
- 7.4 Any Liability of Optical Filters which falls within Condition 7.3 will not be taken into account in assessing whether the financial limit in Condition 7.2 has been reached.
- 7.5 Each of Optical Filters’ employees, officers, directors, representatives, affiliates, agents and subcontractors will be entitled to enforce all the terms of this Condition 7 subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999 and the terms of the Contract. Accordingly and for the avoidance of doubt the financial limits on liability set out in Condition 7 represent the maximum liability of Optical Filters, employees, officers, directors, representatives, affiliates, agents and subcontractors in aggregate. The parties may vary or rescind the Contract without the consent of Optical Filters’ employees, officers, directors, representatives, affiliates, agents and subcontractors.
8. Termination for Default. Without limiting its other rights or remedies, Optical Filters may terminate the Contract immediately by giving written notice to that effect to the Buyer:
- 8.1 if the Buyer becomes insolvent, has a receiver, administrator or provisional liquidator appointed in respect of it, passes a resolution to appoint an administrator for its winding-up (save in the case of a resolution for winding up, for the purpose of a solvent restructuring), has a winding up order made by a court in respect of it, enters into any composition or arrangement with creditors (other than relating to a solvent restructuring), ceases to carry on business, has any steps or actions taken in connection with any of these procedures, is unable to meet its obligations as they become due or admits such in writing, enters bankruptcy or has a receiver or trustee appointed in respect of it, or is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction; or
- 8.2 if the Buyer fails to timely make payments under the Contract or under any other obligation of the Buyer to Optical Filters, or fails to provide Optical Filters with adequate assurance of due performance within fifteen (15) days of the Buyer's receipt of Optical Filters' written demand therefor.
9. Consequences of Termination. Following expiry or termination of the Contract:
- 9.1 any Conditions which expressly or impliedly continue to have effect after expiry or termination of the Contract will continue in force; and
- 9.2 all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of expiry or termination.
10. Credit Verification.
Optical Filters reserves the right to perform a review of the Buyer's creditworthiness following acceptance of the Proposal by the Buyer. Notwithstanding any other provision of the Contract, Optical Filters shall not be obligated to perform the Contract if the Buyer's creditworthiness is unsatisfactory to Optical Filters, in Optical Filters' sole discretion. In such case, Optical Filters shall not be obliged to proceed with the performance of the Contract, and Optical Filters may cancel the Contract at any time without any liability to the Buyer, unless and until the Buyer shall have agreed to such terms of payment and such security therefor as is satisfactory to Optical Filters, in Optical Filters' sole discretion.
11. Export and Import Licenses.
The Contract is contingent upon Optical Filters obtaining all export licenses and/or government approvals which may be required under applicable laws and regulations. The Buyer will, on request, provide to Optical Filters such information as Optical Filters may reasonably require for the purposes of obtaining any such export licenses and/or government approvals. Prior to the date of shipment of the Goods, the Buyer shall obtain, at its sole cost, all import licenses and/or other government approvals which may be required by the country of importation. Upon Optical Filters' request, the Buyer shall provide Optical Filters with copies of such import licenses and/or government approvals to evidence the Buyer's compliance with this Condition 11. The Buyer shall defend, indemnify and hold Optical Filters harmless from any claim, loss, damage, fines, penalties, liability or expense incurred with regard to the Buyer's failure to comply with this Condition 11.
12. Other Provisions.
- 12.1 Entire Agreement. The Contract shall constitute the entire understanding and agreement between Buyer and Optical Filters and supersedes any prior agreement or arrangement in respect of its subject matter and (1) neither party has entered into the Contract in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement (whether made by the other party or any other person and whether made to the first party or any other person) which is not expressly set out in the Contract, (2) the only remedies available for any misrepresentation or breach of any representation or statement which was made prior to entry into the Contract and which is expressly set out in the Contract will be for breach of contract, and (3) nothing in this Condition 12.1 will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation
- 12.2 Variation. No variation to the Contract shall be effective unless it is in writing and executed by a duly authorised representative on behalf of each of the parties.
- 12.3 Disputes. Subject to Condition 12.4, the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with the Contract (including in relation to any non-contractual obligations).
- 12.4 Either party may seek specific performance, interim or final injunctive relief or any other relief of similar nature or effect in any court of competent jurisdiction.
- 12.5 Limitation of Actions by Buyer. Any actions against Optical Filters with respect to any matter arising out of or relating to the Contract must be brought by the Buyer, or anyone claiming through or under the Buyer, within the earlier of: (1) one (1) year from the date that the claim in question accrued; or (2) the expiration of any applicable statute of limitations.
- 12.6 Governing Law. The Contract and any non-contractual obligations arising out of or in connection with it shall be governed by the law of England and Wales.
- 12.7 Waiver. The waiver of any right or default in any one instance shall not be deemed a waiver of any future right to enforce the Contract.
- 12.8 Assignment. The Buyer shall not assign, transfer, charge, hold on trust for any person or deal in any other matter with any of its rights under the Contract without the prior written consent of Optical Filters.
- 12.9 Subcontracting. The Buyer may sub-contract its obligation to collect the Goods under Condition 5, but the Buyer shall not sub-contract any of its other obligations under the Contract.
- 12.10 Severability. If any provision of the Contract (including any exclusion from, or limitation of, liability set out in Condition 7) is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, invalid or unenforceable for any reason, such term will be deemed to be severed from the Contract and this will not affect the remaining provisions of the Contract which shall remain in full force and effect.
- 12.11 Safety Devices, Risks and Damages. The Buyer assumes all responsibility for the safe operation of the Goods. The Buyer shall defend, indemnify and hold Optical Filters harmless with respect to any property damage and/or personal injury, including death, which is caused by reason of the failure on the part of the Buyer, and/or any employee, representative, operator and/or agent of the Buyer, to comply with this Condition 12.11.
- 12.12 Buyer Disclosures. Unless otherwise agreed to in writing by Optical Filters, any information or ideas transmitted by the Buyer to Optical Filters in connection with the Contract shall not be regarded as a trade secret of, or submitted in confidence by, the Buyer.
- 12.13 Confidentiality. The Buyer will only use Confidential Information for the purpose of performing its obligations and exercising its rights under the Contract and keep Confidential Information secret, safe and secure, The Buyer will only disclose Confidential Information (1) to those of its officers, directors, employees and professional advisers who need access to that Confidential Information so that it can perform its obligations and exercise its rights under the Contract and procure that each person to whom it discloses that Confidential Information will not do or omit to do anything which if done or omitted to be done by the Buyer would be a breach of this Condition 12.13, and (2) to the extent required by law or any court of competent jurisdiction or the rules of any governmental or regulatory body.
- 12.14 No License or Sale of Intellectual Property. Nothing in the Contract will operate to transfer, grant to, convey to or confer upon the Buyer a license or any other rights to use, express or implied, under any patent, copyright or other intellectual property rights of Optical Filters encompassed within, covering or relating to the Goods.
- 12.15 Recovery of Expenses. Optical Filters shall be entitled to recover from the Buyer all costs and expenses (including, but not limited to, reasonable attorney's fees) which are incurred by Optical Filters in enforcing its rights under the Contract, including, but not limited to, the recovery of any amounts owed by the Buyer to Optical Filters under the Contract.
- 12.16 No Third Party Beneficiaries. Save as provided in Condition 7.5, the parties do not intend that any term of the Contract will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.