a. In these terms and conditions :
i. “the company” means Omnie Limited.
ii. “contract” shall be as defined in clause 1.b.
iii. “customer” means the person with whom the company contracts for the supply of products pursuant to these conditions.
iv. “products” means the goods to be supplied by the company as referred to and as described in a quotation.
v. “quotation” means the quotation submitted to the customer by the company, together with a pro forma invoice and these conditions, which quotation details the prices at which the customer may order the products and shall remain valid for a period of 3 months.
vi. “writing” includes fax and e-mail.
b. A contract shall come into force between the parties each time that full payment for the products is received by the company from a customer in response to a quotation. The terms of the contract shall comprise the quotation (as altered by any price increase under clause 7d.), the company’s pro forma invoice and these conditions of sale.
2. Terms of Payment
a. If the customer wishes to proceed to order the products after receipt of a quotation and pro forma invoice it shall make full payment for the products within 3 months, failing which the quotation shall cease to be valid and no contract shall arise. On receipt of cleared funds for the products, the company shall issue the customer with a VAT invoice accordingly.
a. Delivery shall be deemed to have taken place in the case of ex-works sales when products are made available for collection by the company for the customer or their carrier and in all other cases upon delivery by the company to the agreed mainland UK delivery point, but in the case of delivery on pallets before the products are unloaded which is the responsibility of the customer whether conducted by the customer or a third party designated by the customer.
b. The company shall not be obliged to make a delivery unless the company has received full payment for the products and all the necessary information, drawings and approvals from the customer and the customer acknowledges that any delays or alterations by the customer may result in delayed delivery for which the company will not be responsible.
c. Although the company endeavours to meet the delivery requirements all dates and times for delivery are estimated and do not constitute fixed times for delivery by the company provided that (unless the parties expressly agree otherwise) delivery occurs within 30 days of the contract coming into force. The customer shall have no right to damages or to cancel the contract for a delay of up to 30 days arising from any cause to meet any delivery times given in the quotation.
d. If the products are not delivered by the time specified in clause 3c, the customer may specify an appropriate extension of time for delivery but if the company fails to deliver within such specified time the customer may treat the contract as terminated and the company shall reimburse the customer within 7 working days for the products which the company has failed to deliver.
e. The customer shall be liable to the company for any demurrage costs incurred in the event of vehicles being unduly delayed at the point of delivery.
f. On delivery of the products the company will, or procure that its carrier will, leave a delivery note with the customer or their carrier.
4. Shortages and damage on delivery inspection
a. The customer shall have no claim for shortages of or damage to the products on delivery which are or would be apparent on inspection unless the customer, purchaser or third party designated by the customer:
i. Unpacks and inspects the products
ii. Notifies the company of any shortages or damage (otherwise than by a qualified signature on the delivery note) within 30 days of receipt and
iii. Demonstrates to the satisfaction of the company that such shortages or damage occurred prior to delivery
b. The customer shall have no rights in respect of shortages or damage unless the company is given a reasonable opportunity to inspect the products and investigate any complaint before any use of or alteration to or interference with the products.
c. On a valid complaint made in accordance with this clause the customer shall be entitled (in the case of shortages) to receive within a reasonable time a delivery of products equivalent to the shortfall and (in the case of defects) to repairs to or replacements for the affected products within a reasonable time of being required by the customer to do so; or at the customer’s option to reject the products and to a credit for the price thereof but the company shall have no further liability whatsoever.
d. If the customer rejects the products under clause 3c:
i. the customer shall at its own cost return the products to the company’s premises if they were supplied ex-works for collection by the customer or their carrier; or
ii. the customer shall make the products available at the point of their delivery for collection by the company and at its expense; and
iii. the company shall reimburse the customer for the price of the products within 14 days of agreeing to the refund.
e. If a complaint of shortages or damage is not made to the company in accordance with clause 3 then the products will be deemed to be delivered complete and undamaged in accordance with the contract.
5. Risk and Title
a. Risk of damage to or loss of the products, and title to the products, shall both pass to the customer upon delivery and from that time the customer is solely responsible for all damage, loss of or deterioration to the products.
6. Cancellation and amendment
a. No contract can be amended or cancelled except with the company’s approval in writing and should such approval be given the customer shall indemnify the company against any costs, losses or expenses resulting from any cancellation or amendment.
a. Unless otherwise agreed in writing all prices shall be stated in the valid quotation.
b. Unless stated in the quotation all prices are exclusive of delivery and are ex works.
c. All prices are exclusive of VAT.
d. The company reserves the right at any time prior to delivery by giving notice in writing to increase the price if there is any increase in the cost of materials, labour, transport or utilities or if the costs of the company are increased by any other factor beyond the reasonable control of the company; or if the customer requests any alteration in quantity, design or specification to that stated in the quotation. In such circumstances the customer shall be requested to approve such price increase until which time the company shall postpone delivery. If no such approval is given by the customer within 10 working days of such notice of price increase from the company, the contract shall lapse and neither party shall have any further liability to the other under the contract.
a. The customer acknowledges that save as reflected in the quotation it has not specified any particular purpose for the products and that it is entirely its own responsibility to satisfy itself that the products are suitable for the purpose which it intends
b. The company reserves the right to make changes in dimensions or other specifications of the products as are required to conform to applicable standards or laws or are otherwise within reasonable limits having regard to the nature of the products. Dimensions specified by the company are to be treated as approximate.
a. The company warrants that its products are of satisfactory quality at the time of their delivery. Subject always to clause 3, any defective products shall be replaced or repaired within a reasonable time of being required by the customer to do so; or, at the customer’s option, if after one repair or replacement the products remain defective, a credit or refund for the price thereof shall be given provided in every case that:
i. The company receives written notice of the defect within 12 months of delivery.
ii. No alteration to or interference with the products alleged to be defective takes place before the company is given access to the products to inspect and test the same
iii. The customer has not defaulted in its obligation to make payment of the price for the products
iv. The defect should not be attributable to incorrect storage or use of the products
v. The defect does not arise by reason of a design specification or instruction from the customer
b. The company shall not be liable in respect of loss or damage arising from any continued use made of products after the customer became or ought reasonably to have been aware of a defect
c. In the event of a valid claim being made in accordance with clause 9;
i. The customer shall be bound to accept repaired or replacement products or, at the company’s option, credit or repayment for those products as are defective and shall not be entitled to terminate the contract
ii. If the company does not repair or replace products within 60 days or such longer time as may be reasonable then the customer’s sole remedy shall be an entitlement to credit or repayment in respect of the defective products.
d. While the company may provide a list to the customer of third parties who may be contacted to install the products, this is provided without liability on the part of the company. The installation of the products does not form part of the contract and no installer shall be deemed to be an agent of the company.
a. In the event of a valid claim being made in accordance with clause 9:
i. The company’s liability to give credit or repayment in respect of the defective products, whether in respect of one claim or in aggregate, shall not exceed the contract price payable for the supply of products provided under it, plus the cost to the customer (if any and upon supplying evidence satisfactory to the company) of having installed the defective products;
ii. The company’s product liability for flood or other damage caused to the property of the customer or any third party arising out of the company’s negligence in the design of, or workmanship in, or materials used in the products shall not exceed £500,000;
iii. The company shall have no further liability to the customer in connection with or arising from any defective products due to the quality, condition, suitability, durability, safety or any other aspect or feature of the products; and
iv. Nothing in these conditions shall exclude or limit the company’s liability in respect of death or injury to any person arising out of the company’s negligence in the design of, or workmanship in, or materials used in the products.
11. Company literature, samples and technical information
a. The products may be relied upon to match their descriptions given in advertising, sales, technical and other literature issued by the company. Any illustrations, performance details, examples of installations and methods of assembly and all other information and data in such literature are based on experience and upon trials under test conditions and are provided for general guidance only. No such information or data shall form part of the contract unless it is specifically referred to in the quotation
12. Patents and Trademarks
a. No indemnity, warranty or representation is given by the company that the product does not infringe any letter patent, trademarks, registered designs or other industrial rights owned.by a third party.
b. The company shall have no liability in respect of claims for infringement or alleged infringement of third parties’ patent or other intellectual property rights arising from the manufacture or supply of the products to the customer’s instructions or in accordance with design plans or specifications given by the customer and the customer shall indemnify the company against all losses, damages, expenses, costs or other liability arising from such claims.
13. Confidential Information
a. All drawings, documents, records, computer software and other information supplied by the company are supplied on the express understanding that all intellectual property rights therein is reserved to the company and that the customer will not without written consent of the company either give away, loan, exhibit or sell the same or extracts therefrom or copies thereof or use the same in any way except in connection with the products in respect of which they are issued.
a. Any notice shall be in writing and shall be:
i. Delivered by hand or by pre-paid first-class post or other next working day delivery service at the registered office of company or the home address of the customer (as shown on the quotation); or
ii. Sent by e-mail to the addressee’s e-mail address. The company’s e-mail address is stated in this document or such other e-mail address as shall be used by the company in sending the quotation.
b. Any notice shall be deemed to have been received:
i. If delivered by hand, on signature of a delivery receipt
ii. If sent by pre-paid first-class post or other next working day delivery service at 9.00 am on the second working day after posting or at the time recorded by the delivery service.
iii. If sent by e-mail, at the time that the sender receives from the addressee either an acknowledgement or automatically generated read receipt confirmation.
c. This clause does not apply to the service of any proceedings or other documents in any legal action.
15. Law and Jurisdiction
a. The contract shall be governed and interpreted exclusively according to the laws of England and shall be subject to the exclusive jurisdiction of an English Court.