1.1 Optar shall supply and the Customer shall purchase the Goods and Services in accordance with the Order Acknowledgement which are subject to these Conditions. 2. Basis of Sale and Service
2.1 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and Optar.
2.2 Sales literature, price lists and other documents issued by Optar in relation to the Goods and Services are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. An order placed by the Customer may not be withdrawn cancelled or altered prior to acceptance by Optar and no contract for the sale of the Goods and Services shall be binding on Optar unless Optar has issued a quotation which is expressed to be an offer to sell the goods and services or has accepted an order placed by the Customer by whichever is the earlier of:-
2.2.1 Optar's written acceptance;
2.2.2 delivery of the Goods; or
2.2.3 Optar's invoice.
2.3 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Optar shall be subject to correction without any liability on the part of Optar.
3.1 No order submitted by the Customer shall be deemed to be accepted by Optar unless and until confirmed in writing by Optar's Order Acknowledgement.
3.2 No order which has been accepted by Optar may be cancelled by the Customer except with the agreement in writing of Optar on the terms that the Customer shall indemnify Optar 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 Optar as a result of cancellation.
4.1 With effect from the Commencement Date Optar shall, in consideration of the Fees being paid in accordance with the Terms of Payment provide the services expressly identified in the accepted order or otherwise agreed under this agreement.
4.2 Optar will use reasonable care and skill to perform the services identified in the accepted order or otherwise agreed under this agreement.
4.3 Optar shall use all reasonable endeavours to complete its obligations under the Schedule, but time will not be of the essence in the performance of these obligations.
5.1 The price of the Goods and Services shall be the price listed in accepted order current at the date of acceptance of the Customer's order or such other price as may be agreed in writing by Optar and the Customer.
5.2 Optar reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods and Services to reflect any increase in the cost to Optar which is due to any factor beyond the control of Optar such as, without limitation, alteration of duties, any change in delivery dates, quantities or specifications for the Goods and services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Optar adequate information or instructions.
6.1 All payments required to be made pursuant to this Agreement by either party shall be made within 30 days of the date of the relevant invoice, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
6.2 The time of payment shall be of the essence of these terms and conditions. If the Customer fails to make any payment on the due date in respect of the price or any other sum due under these terms and conditions then Optar shall, without prejudice to any right which Optar may have pursuant to any statutory provision in force from time to time, have the right to charge the Customer interest on a daily basis at an annual rate equal to the aggregate of 2% per cent and the base rate of The Bank of England from time to time on any sum due and not paid on the due date. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgement.
7.1 Delivery of the Goods shall be made by Optar delivering the Goods to the place specified in the Customer's Purchase Order.
7.2 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by Optar in writing. The Goods may be delivered by Optar in advance of the Delivery Date upon giving reasonable notice to the Customer.
7.3 If the Customer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, Optar shall be entitled upon given written notice to the Customer to store or arrange for the storage of the Goods and then notwithstanding the provision of Condition 10.1 of these Conditions risk in the Goods shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall pay to Optar all costs and expenses including storage and insurance charges arising from such failure.
8.1 If Optar fails to deliver the Goods or Services and any of them on the Delivery Date other than for reasons outside Optar's reasonable control or the Customer's or its carrier's fault:-
8.1.1 if Optar delivers the Goods and Services at any time thereafter Optar shall have no liability in respect of such late delivery;
8.1.2 if the Customer gives written notice to Optar within 10 business days after the Delivery Date and Optar fails to deliver the Goods and Services within 60 Business Days after receiving such notice the Customer may cancel the order and Optar's liability shall be limited to the excess (if any) of the cost of the Customer (in the cheapest available market) of similar goods to those not delivered over the price of the Goods not delivered..
9.1 Risk of damage to or loss of the Goods shall pass to the Customer at:
9.1.1 in the case of Goods to be delivered at Optar's premises, the time when Optar notifies the Customer that the Goods are available for collection;
9.1.2 in the case of Goods to be delivered otherwise than at Optar's premises, the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when Optar has tendered delivery of the Goods; or
9.1.3 in the case of goods being installed by Optar, the time that Optar notifies the Customer that the installation is complete.
9.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, legal and beneficial title of the Goods shall not pass to the Customer until Optar has received in cash or cleared funds payment in full of the price of the Goods.
9.3 [Sub-clause 10.2 notwithstanding, legal and beneficial title of the Goods shall not pass to the Customer until Optar has received in cash or cleared funds payment in full of the price of the Goods and any other goods supplied by Optar and the Customer has repaid all moneys owed to Optar, regardless of how such indebtedness arose.]
9.4 Until payment has been made to Optar in accordance with these Conditions and title in the Goods has passed to the Customer, the Customer shall be in possession of the Goods as bailee for Optar and the Customer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by Optar and shall insure the Goods against all reasonable risks.
9.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of Optar, but if the Customer does so all money owing by the Customer to Optar shall (without prejudice to any other right or remedy of Optar) forthwith become due and payable.
9.6 Optar reserves the right to repossess any Goods in which Optar retains title without notice. The Customer irrevocably authorises Optar to enter the Customer's premises during normal business hours for the purpose of repossessing the Goods in which Optar retains title and inspecting the Goods to ensure compliance with the storage and identification requirements of sub-clause 10.4.
9.7 The Customer's right to possession of the Goods in which Optar maintains legal and beneficial title shall terminate if;
9.7.1 The Customer commits or permits any material breach of his obligations under these Conditions;
9.7.2 The Customer enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with his creditors;
9.7.3 The Customer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
9.7.4 The Customer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Customer, notice of intention to appoint an administrator is given by the Customer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer.
10.1 Optar may assign the Contract or any part of it to any person, firm or company.
10.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Optar.
11.1 If on delivery any of the Goods are defective in any material respect and either the Customer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery "condition and contents unknown" or, the Customer gives written notice of such defect to Optar within three business days of such delivery, Optar shall at its option:-
11.1.1 replace the defective Goods within 45 days of receiving the Customer's notice; or
11.1.2 refund to the Customer the price for the goods which are defective but Optar shall have no further liability to the Customer in respect thereof and the Customer may not reject the Goods if delivery is not refused or notice not given by the Customer as aforesaid.
11.2 No Goods may be returned to Optar without the prior agreement in writing of Optar. Subject thereto any Goods returned which Optar is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge, repaired or, at Optar's sole discretion Optar shall refund or credit to the Customer the price of such defective Goods but Optar shall have no further liability to the Customer.
11.3 Optar shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow Optar's instructions (whether oral or in writing), misuse or alteration of the Goods without Optar's approval, or any other act or omission on the part of the Customer, its employees or agents or any third party.
11.4 Goods, other than defective Goods returned under Conditions 12.1 or 12.2, returned by the Customer and accepted by Optar may be credited to the Customer at Optar's sole discretion and without any obligation on the part of Optar.
11.5 Subject as expressly provided in these Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
11.6 The Customer shall be responsible to ensure that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Customer is in compliance with all applicable statutory handling and sale of the Goods by the Customer is carried out in accordance with directions given by Optar or any competent governmental or regulatory authority and the Customer will indemnify Optar against any liability loss or damage which Optar might suffer as a result of the Customer's failure to comply with this condition.
12.1 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Optar, Optar shall be entitled to:-
12.1.1 cancel the order or suspend any further deliveries of Goods and Services to the Customer;
12.1.2 appropriate any payment made by the Customer to such of the Goods and Services (or the goods supplied under any other contract between the Customer and Optar) as Optar may think fit (notwithstanding any purported appropriation by the Customer); and
12.2 This condition applies if:-
12.2.1 the Customer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract; or
12.2.2 the Customer becomes subject to an administration order or makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or
12.2.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
12.2.4 the Customer ceases, or threatens to cease, to carry on business; or
12.2.5 Optar reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
12.3 If Condition 13.2 applies then, without prejudice to any other right or remedy available to Optar, Optar shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
13.1 Except in respect of death or personal injury caused by the Company's negligence, the Company will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of this contract, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Company's servants or agents or otherwise) which arise out of or in connection with the supply of the Goods and Services.
13.2 The Customer shall indemnify Optar against all damages, costs, claims and expenses suffered by arising from loss or damage to any equipment (including that of third parties) caused by the Customer, or its agent or employees.
13.3 Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.
13.4 Optar shall not be liable to the Customer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of Optar's obligations if the delay or failure was due to any cause beyond Optar's reasonable control.
14.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or sent by electronic mail:
14.1.1 (in the case of communications to Optar) to its registered office or such changed address as shall be notified to the Customer by Optar; or
14.1.2 (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to Optar by the Customer.
14.2 Communications shall be deemed to have been received:
14.2.1 if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or
14.2.2 if delivered by hand, on the day of delivery; or
14.2.3 if sent by fax or electronic mail on a Business Day prior to 4.00 pm, at the time of transmission and otherwise on the next Business Day.
14.3 Communications addressed to Optar shall be marked for the attention of Jacqui Bremner.
15.1 In the event that either party is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout (subject to Sub-clause 16.2) the party shall not be deemed to be in breach of its obligations under this Agreement. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.
15.2 Sub-clause 16.1 shall not apply with respect to strikes and lockouts where such action has been induced by the party so incapacitated.
15.3 Each party shall be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement.
15.4 If and when the period of such incapacity exceeds 6 months then this Agreement shall automatically terminate unless the parties first agree otherwise in writing.