Terms and Conditions for the Sale of Goods

1. INTERPRETATION

1.1 Definitions:

Business Day
a day (other than a Saturday, Sunday or public holiday) when UK clearing banks in the city of London are open for general business.
Conditions
the terms and conditions set out in this document as amended from time to time in accordance with clause 13.4.
Contract
the contract between MKI and the Customer for the sale and purchase of the Goods in accordance with these terms and conditions.
Customer
the person or firm who purchases the Goods from MKI.
Force Majeure Event
an event or circumstance beyond a party’s reasonable control.
Goods
the goods (or any part of them) set out in the Order, and may include Used Goods.
Lessee
any person or firm to whom the Customer hires or leases the Goods.
MKI
MK Illumination (UK) Limited (registered in England and Wales with company number 04366174).
Order
the Customer’s order for the Goods, as set out in the Customer’s purchase order form or the Customer’s written or verbal/telephone acceptance of MKI’s quotation (including as provided in MKI’s catalogue).
Specification
any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and MKI.
Used Goods
means any Goods that are ex-hire, ex-display or have otherwise been owned, leased or used prior to the sale to the Customer (and includes, without limitation, any Goods that are described by MKI as forming part of its “Pre Loved” range).

1.2 Interpretation:

(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) a reference to writing or written includes emails.

2. BASIS OF CONTRACT

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 Subject to clause 8, and save where MKI has agreed otherwise in writing, payment for the Goods must be made in full cleared funds at the time of the Customer placing its Order. MKI shall not be required to begin to fulfil the Order until such time as payment is received.
2.4 The Order shall only be deemed to be accepted when MKI issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.5 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.6 Any samples, drawings, descriptive matter or advertising produced by MKI and any descriptions or illustrations contained in MKI’s catalogues, brochures or website are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.7 A quotation for the Goods given by MKI shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.

3. GOODS

3.1 The Goods are described in MKI’s catalogue as modified by any applicable Specification and Used Goods are described in writing by MKI (including by email).
3.2 To the extent that the Goods are to be manufactured or modified in accordance with a Specification supplied or instructed by the Customer, the Customer shall indemnify MKI against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and
other professional costs and expenses) suffered or incurred by MKI in connection with any claim made against MKI for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with MKI’s use of the customer’s Specification, direction or instruction. This clause 3.2 shall survive termination of the Contract.
3.3 MKI reserves the right to amend any Specification if required by any applicable statutory or regulatory requirements.

4. DELIVERY

4.1 MKI shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Customer and MKI reference numbers (as applicable), the type and quantity of the Goods (including the code number of the Goods, where applicable), save in the case of Used Goods, installation instructions, dismantle and maintenance instructions, special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if MKI requires the Customer to return any packaging materials to MKI, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as MKI shall reasonably request. Returns of packaging materials shall be at MKI’s expense.
4.2 MKI shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after MKI notifies the Customer that the Goods are ready.
4.3 Save where MKI has agreed that the Customer may collect the Goods (in which case delivery is completed when the Goods are made available for collection by the Customer), delivery is completed on the arrival of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. MKI shall not be liable for any delay in delivery or failure to deliver the Goods that is caused by a Force Majeure Event or the Customer’s failure to make payment for the Goods in accordance with the Contract or to provide MKI with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If MKI fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
4.6 If the Customer fails to take delivery of the Goods within two Business Days of MKI notifying the Customer that the Goods are ready or attempting delivery (whichever occurs the soonest), then, except where such failure or delay is caused by a Force Majeure Event or MKI’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the second Business Day after the day on which MKI notified the Customer that the Goods were ready; and
(b) MKI shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the day on which MKI notified the Customer that the Goods were ready for delivery or attempted delivery the Customer has not taken actual delivery of them, MKI may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods (where payment has been made) or charge the Customer for any shortfall below the price of the Goods.
4.8 MKI may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5. QUALITY

5.1 Subject to clause 5.2, MKI warrants that on delivery, and (unless otherwise agreed in writing by the parties) for a period of 12 months from the date of delivery (warranty period), the Goods shall:
(a) conform in all material respects with their description and any applicable Specification;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 Where the Goods are Used Goods, they are sold “as is” and MKI makes no warranties, assurances, promises or representations as to the quality, safety, condition or fitness for purpose of the Used Goods or that they will be free from defects. All implied statutory or common law terms, conditions and warranties as to the Equipment are excluded to the fullest extent permitted by law. Unless MKI agrees otherwise in writing, it shall not refurbish, recondition or modify the Used Goods before the sale to the Customer.
5.3 Subject to clause 5.4, if:
(a) the Customer gives notice in writing to MKI during the warranty period within a reasonable time of discovery (and no later than 3 Business Days following discovery) that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) MKI is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by MKI) returns such Goods to MKI’s place of business at the Customer’s cost,
MKI shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.4 MKI shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer, any Lessee or any third party makes any further use of such Goods after giving notice in accordance with clause 5.23;
(b) the defect arises because the Customer, any Lessee or any third party failed to follow MKI’s oral or written instructions as to the transport, storage, commissioning, installation, use, cleaning and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of MKI following any drawing, design or Specification supplied by or instructed by the Customer or any of its agents;
(d) the Customer or any third party (including a Lessee) modifies, alters or repairs such Goods without the written consent of MKI;
(e) the defect is related to reduced lumen outputs and the Customer hereby accepts, acknowledges and agrees that lumen outputs depreciate over time and use;
(f) the defect arises as a result of other fair wear and tear (other than clause 5.4(e)), wilful damage, negligence, or abnormal or inappropriate storage, transport or working conditions;
(g) the Goods differ from their description or the Specification (as applicable) as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
(h) the defect arises because the Customer failed to comply with its obligations under clause 6.1.
5.5 Except as provided in this clause 5, MKI shall have no liability to the Customer or any third party in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.7 These Conditions shall apply to any repaired or replacement Goods supplied by MKI.

6. CUSTOMER’S OBLIGATIONS

6.1 The Customer shall be solely responsible for ensuring that it:
(a) uses the Goods for its own internal purposes only and not for resale or hire unless agreed by MKI in writing;
(b) notifies any Lessee of any instruction provided by MKI in relation to the installation, use, storage, cleaning, maintenance and dismantle of the Goods or where there are none, the Customer shall provide practical guidance reflecting good trade practice;
(c) determines the suitability of the site proposed for the installation of the Goods (including any site proposed by a Lessee or other third party);
(d) (unless MKI agrees otherwise in writing), refurbishes any Used Goods and ensures that they are safe and free from hazard;
(e) engages appropriately skilled and experienced employees, agents, subcontractors and other representatives when dealing in any way with the Goods following delivery by MKI (including as regards the refurbishment (as may be required in relation to Used Goods), packaging, transport, storage, cleaning, installation and dismantle of the Goods).

7. TITLE AND RISK

7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until MKI receives payment in full (in cash or cleared funds) for the Goods and any other goods that MKI has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as MKI’s property;
(b) not hire or lease the Goods to any Lessee;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify MKI immediately if it becomes subject to any of the events listed in clause 10.1; and
(f) give MKI such information relating to the Goods as MKI may require from time to time.
7.4 Subject to clause 7.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before MKI receives payment for the Goods.
7.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 10.1, then, without limiting any other right or remedy MKI may have:
(a) the Customer’s right to use them in the ordinary course of its business ceases immediately; and
(b) MKI may at any time:
(i) require the Customer to deliver up all Goods in its possession; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

8. PRICE AND PAYMENT

8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in MKI’s published price list (including as detailed in its catalogue) in force as at the date of delivery.
8.2 Unless otherwise agreed, or indicated by MKI, the price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to MKI at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
8.3 Unless otherwise agreed in writing, the Customer shall pay the price of the Goods in full and in cleared funds at the time of placing its Order and prior to the shipment of the Goods (on a pro forma invoice basis).
8.4 Payment shall be made to the bank account nominated in writing by MKI. Time for payment is of the essence and MKI shall not begin to fulfil the Order or dispatch the Goods before payment is received in full.
8.5 If the Customer fails to make any payment due to MKI under the Contract by the due date for payment:
(a) then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and
(b) MKI shall be entitled to recover from the Customer all of its costs, losses, fees and expenses (including court costs, legal fees and other professional fees) suffered, incurred or agreed to be paid by MKI in recovering the overdue amount(s).
8.6 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). MKI may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by MKI to the Customer.

9. RETURNS

9.1 MKI may accept the return of Goods (other than Used Goods) strictly subject to the provisions of this clause 9. Used Goods will not be accepted for return and references to Goods in this clause 9 exclude Used Goods.
9.2 Where the Customer wishes to return the Goods (or any of them) to MKI it must provide a written notice to MKI as soon as reasonably possible following delivery to the Customer of the Goods concerned (and in any event within 14 days of delivery) which notice must:-
(a) state that the Customer wishes to return Goods to MKI;
(b) list and give reasonable details of the Goods it wishes to return (Return Goods); and
(c) state the date on or by which it will return the Return Goods to MKI.
9.3 The Customer must ensure that the Return Goods are returned to MKI within 28 days of the day on which they were delivered to the Customer.
9.4 The Customer is responsible (at its own cost) for :-
(a) ensuring that the return Goods are returned to MKI within 28 days of the day on which they were delivered to the Customer; and
(b) insuring the Return Goods until they have been accepted by MKI.
9.5 Return Goods must :-
(a) not have been removed from their original packaging or have been used or operated by the Customer or any other party;
(b) be returned to MKI sealed in their original packaging;
(c) not have been sold or transferred to any other party; and
(d) be unused, undamaged, in good condition and full working order.
9.6 Provided that Customer and the Return Goods comply with the provisions of this clause 9 and the Customer is not in breach of any other provision of the Contract then MKI may accept the Return Goods in which case it will notify the Customer and will:-
(a) refund to the Customer the amount(s) paid by the Customer to MKI in respect only of such accepted Return Goods ; or
(b) cancel any amount(s) due to MKI from the Customer in respect only of the accepted Return Goods but unpaid to MKI.
No further amounts will be due or payable to the Customer in respect of such accepted Return Goods.
9.7 Where MKI accepts the Returned Goods then it will notify the Customer and risk and title in the Return Goods (to the extent they have passed to the Customer) will pass to MKI on the date of such notice.
9.8 MKI may inspect and/or test the Return Goods to ascertain whether they comply with the provisions of clause 9.5
9.9 Without limitation MKI may reject the Return Goods if it reasonably believes the Return Goods do not comply with clause 9.5 and/or it reasonably believes that the Customer has failed to comply with this clause 9 or with any other provision of this Contract.
9.10 Where MKI rejects the Return Goods it will notify the Customer and :-
(a) title (where the Return Goods have been paid for in full in accordance with this Contract) and risk in the Return Goods will remain with the Customer;
(b) the Customer must collect the Return Goods at a time specified by MKI; and
(c) no monies will be payable to the Customer by MKI in respect of the Return Goods.

10. TERMINATION

10.1 Without limiting its other rights or remedies, MKI may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer’s financial position deteriorates to such an extent that in MKI’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.2 Without limiting its other rights or remedies, MKI may suspend provision of the Goods under the Contract or any other contract between the Customer and MKI if the Customer becomes subject to any of the events listed in clause 10.1(a) to clause 10.1(d), or MKI reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
10.3 Without limiting its other rights or remedies, MKI may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
10.4 On termination of the Contract for any reason the Customer shall immediately pay to MKI all of MKI’s outstanding unpaid invoices and interest.
10.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
10.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

11. LIMITATION OF LIABILITY

11.1 Nothing in these Conditions shall limit or exclude MKI’s liability for any matter in respect of which it would be unlawful for MKI to limit or restrict its liability, including:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; and
(d) defective products under the Consumer Protection Act 1987.
11.2 Subject to clause 11.1:
(a) MKI shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
(i) loss of profit (direct or indirect);
(ii) loss of revenue;
(iii) loss of business;
(iv) loss of goodwill and/or reputational damage; or
(v) any indirect or consequential loss,
arising under or in connection with the Contract; and
(b) MKI’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.

12. FORCE MAJEURE

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 12 weeks, the party not affected may terminate this Contract by giving 30 days’ written notice to the affected party. For the avoidance of doubt, if the Customer terminates this Contract in accordance
with this clause, MKI shall be entitled to retain (or invoice the Customer, as the case may be), all monies, costs or expenses paid or incurred by it in fulfilling the Contract up to the point of termination.

13. GENERAL

13.1 Assignment and other dealings.
(a) MKI may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of MKI.
13.2 Confidentiality.
(a) Each party undertakes that it shall not at any time during this Agreement, and for a period of five years after termination of this Agreement, disclose to any person any confidential information concerning the business (including its prices, products and services), affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 13.2(b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 13.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
13.3 Entire agreement.
(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
13.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
13.7 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.7(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission provided that the email is not recalled, nor a message of non-delivery is received by the Sender. If the Sender receives notice of delayed delivery (e.g. out of office), the email will be deemed to have been received on the date notified.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.8 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
13.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
13.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.