STANDARD CONDITIONS OF SALE

1. DEFINITIONS AND INTERPRETATION

1.1
In these Conditions the following expressions will have the following meanings unless inconsistent with the context:

“Buyer”
the person(s), firm or company whose offer for the Goods is accepted by the Company;

“Company”
Holophane Europe Limited;

“Conditions”
the standard terms and conditions of sale set out in this document together with any special terms agreed in writing between the Buyer and the Company;

“Contract”
any contract between the Company and the Buyer for the sale of the Goods or the supply of Services formed in accordance with Condition 2;

“Goods”
any goods which the Company supplies to the Buyer (including any of them or any part of them) under a Contract;

“Quotation”
the quotation issued to the Buyer by the Company following the Buyer’s request for the Goods or Services;

“Services”
any services which the Company provides to the Buyer (including any of them or any part of them) under a Contract

1.2
The headings in these Conditions are for convenience only and will not affect their construction or interpretation.

2. FORMATION

2.1
Subject to any variation under Condition 2.7, the Contract will be upon these Conditions to the exclusion of all other terms and conditions and all previous oral or written representations, including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order or similar document, whether or not such document is referred to in the Contract.

2.2
Each acceptance of a Quotation for Goods or Services will be deemed to be an offer by the Buyer to purchase Goods or Services upon these Conditions. The Contract is formed when the offer is accepted by the Company, by way of a written acknowledgement of order. No contract will come into existence until a written acknowledgement of order is issued by the Company.

2.3
Unless agreed otherwise in writing, any quotation is valid for a period of 30 days only from its date, provided the Company has not previously withdrawn it.

2.4
The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate [and check that the Quotation and acknowledgement of order records these details accurately].

2.5
Acceptance of delivery of the Goods or commencement of the Services will be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.

2.6
Subject to Conditions 7.4 and 11, the Buyer may not cancel the Contract. The Company may cancel the Contract at any time prior to delivery.

2.7
Save as set out in the Contract, these Conditions may only be varied or amended in writing and signed by a duly authorised representative of the Company.

3. GOODS AND SERVICES

3.1
The quantity and description of the Goods or Services will be as set out in the Company’s acknowledgement of order.

3.2
All samples, drawings, descriptive matter, specifications and advertising issued by the Company (or the manufacturer of the Goods) and any descriptions or illustrations contained in the Company’s or manufacturer’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods or Services represented by or described in them. They will not form part of the Contract and this is not a sale by sample.

3.3
The Company may make any changes to the specification, design, materials or finishes of the Goods or provision of the Services for any reason, including but not limited to, where required to conform with any applicable safety or other statutory or regulatory requirements, but such change will not materially affect their quality or performance.

3.4
Where applicable in relation to Goods measured by weight or length, the Company may deliver to the Buyer Goods up to 5% more or 5% less than the quantity ordered without any adjustment in the price, and the quantity delivered will be deemed to be the quantity ordered.

3.5
The Company may provide commissioning services as set out in the Quotation [and confirmed in the Company’s acknowledgement of order] and, if so, the Buyer will ensure that the site is fully prepared in order for the Company to commence work upon arrival.

4. PRICE

4.1
Subject to Condition 4.2, the price for the Goods and Services will be the price set out in the Company’s published price list current at the date of delivery and is exclusive of:

4.1.1
any costs of packaging, packing, shipping, loading, carriage, insurance, surcharges for raw material or currency fluctuations and delivery and carriage of the Goods; and

4.1.2
any duties, imposts, levies or taxes including value added tax or other applicable sales tax or duty, which will be added to the sum in question.

4.2
For delivery within the United Kingdom of Goods in excess of the value of £50, the price for the Goods will be inclusive of any costs of packaging, packing, loading, carriage and delivery.

4.3
For delivery within the United Kingdom of Goods below the value of £50, the price for the Goods will be exclusive of any costs of packaging, packing, loading, carriage and delivery and an additional delivery charge will be levied by the Company as set out in the Quotation and confirmed in the Company’s acknowledgment of order.

4.4
The cost of any pallets and returnable packaging, containers or installation equipment will be paid for by the Buyer in addition to the price for the Goods when it is due to pay for the Goods.

4.5
The Company will be entitled to increase the price of the Goods or Services due to any increases in the cost of raw materials, any legislation which imposes a charge and/or has an effect on charges, or any currency fluctuations prior to delivery or performance or following any changes in the specification made both at the request of the Buyer and agreed by the Company or to cover any extra expense as a result of the Buyer’s instructions or lack of instructions, or to comply with the requirements referred to in Condition 3.3.

5. PAYMENT

5.1
The Company may invoice the Buyer for the Goods or Services on or at any time after delivery or commencement of performance and subject to Condition 5.4, payment is due in pounds sterling 30 days after service of such invoice.

5.2
Time for payment will be of the essence.

5.3
No payment will be deemed to have been received until the Company has received cleared funds.

5.4
All sums payable to the Company under the Contract will become due immediately upon termination of the Contract.

5.5
All payments to be made by the Buyer under the Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless the Buyer is required by law to make any such deduction or withholding.

5.6
The Company may appropriate any payment made by the Buyer to the Company to such of the invoices for the Goods or Services as the Company thinks fit, despite any purported appropriation by the Buyer.

5.7
If any sum payable under the Contract is not paid when due then, without prejudice to the Company’s other rights under the Contract, that sum will bear interest from the due date until payment is made in full, both before and after any judgment, at 4% per annum over Barclays Bank plc base rate from time to time and the Company will be entitled to suspend deliveries of the Goods or performance of the Services until the outstanding amount has been received by the Company from the Buyer.

6. INSTALMENTS

6.1
The Company may deliver the Goods by separate instalments or perform any Services in stages. Unless the Company determines otherwise, each separate instalment or stage will be invoiced and paid for in accordance with the provisions of the Contract.

6.2
Each instalment or stage will be a separate Contract and no cancellation or termination of any one Contract relating to an instalment or stage will entitle the Buyer to repudiate or cancel any other Contract, instalment or stage.

7. DELIVERY

7.1
Delivery of the Goods to a location in mainland United Kingdom will take place at the premises or site specified in the Company’s acknowledgement of order. Delivery to two or more separate premises or sites may attract a delivery charge which will be notified to the Buyer in the Quotation and confirmed in the Company’s acknowledgement of order. Delivery of the Goods to a location outside of mainland United Kingdom will be made ex-works as defined in Incoterms 2000. The Services will be performed at the place specified in the Company’s acknowledgement of order.

7.2
Delivery of the Goods will be accepted at any time of day. Performance of the Services will be made during the Company’s usual business hours.

7.3
The Company will use reasonable endeavours to deliver or perform each of the Buyer’s orders for the Goods or Services within the time agreed in the Contract and, if no time is agreed, then within a reasonable time, but the time of delivery or performance will not be of the essence. If, despite those endeavours, the Company is unable for any reason to fulfil any delivery or performance on the specified date, the Company will be deemed not to be in breach of this Contract, nor (for the avoidance of doubt) will the Company have any liability to the Buyer for direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused (including as a result of negligence) by any delay or failure in delivery or performance except as set out in Condition 7.4.

7.4
If delivery of the Goods is delayed by more than 60 days following the date for delivery confirmed by the Company, the Buyer will be entitled to cancel the Contract by written notice to the Company. If the Buyer cancels the Contract in accordance with this Condition 7.4 then:

7.4.1
the Company will refund to the Buyer any sums which the Buyer has paid to the Company in respect of that Contract which has been cancelled; and

7.4.2
the Buyer will be under no liability to make any further payments under Condition 5.1 in respect of that Contract which has been cancelled.

7.5
The Buyer will provide at its expense at the place of delivery in accordance with Condition 7.1, adequate and appropriate equipment and manual labour for offloading the Goods.

7.6
If the Buyer fails to take delivery of any of the Goods when they are ready for delivery or to provide any instructions, documents, licences or authorisations required to enable the Goods to be delivered or Services to be performed on time (except solely on account of the Company’s default), the Goods or Services will be deemed to have been delivered or performed on the due date and (without prejudice to its other rights) the Company may:

7.7

7.6.1
store or arrange for storage of the Goods until actual delivery or sale in accordance with Condition 7.6.2 and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance); and/or

7.6.2
following written notice to the Buyer, sell any of the Goods at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract or account to the Buyer for any excess achieved over the price under the Contract, in both cases having taken into account any charges related to the sale.

The Buyer must notify the Company of any shortfall in Goods within 2 working days of delivery.

Following this, the delivery shall be deemed to have been accepted by the Buyer as correct.

8. RISK/OWNERSHIP

8.1
Risk of damage to or loss of the Goods will pass to the Buyer on delivery (or deemed delivery in accordance with Condition 7.6).

8.2
Ownership of the Goods will not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:

8.2.1
the Goods; and

8.2.2
all other sums which are or which become due to the Company from the Buyer on any account.

8.3
Until ownership of the Goods has passed to the Buyer, the Buyer must:

8.3.1
hold the Goods on a fiduciary basis as the Company’s bailee;

8.3.2
store the Goods (at no cost to the Company) separately from all other Goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;

8.3.3
not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and

8.3.4
maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company, and will whenever requested by the Company produce a copy of the policy of insurance.

8.4
The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:

8.4.1
any sale will be effected in the ordinary course of the Buyer’s business at full market value and the Buyer will account to the Company accordingly; and

8.4.2
any such sale will be a sale of the Company’s property on the Buyer’s own behalf and the Buyer will deal as principal when making such a sale.

8.5
The Buyer’s right to possession of the Goods will terminate immediately if any of the circumstances set out in Condition 11.1 occur.

8.6
The Company will be entitled to recover payment for the Goods notwithstanding that title in any of the Goods has not passed from the Company.

8.7
The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.

8.8
Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer will be deemed to have sold all goods of the kind sold by the Company to the Buyer in the Contract in which they were invoiced to the Buyer.

8.9
On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this Condition 8 will remain in effect.

9. WARRANTY, EXCLUSION OF LIABILITY AND INDEMNITY

Warranty

9.1
The Company will, free of charge, within a period of 12 months from the date of delivery of Goods or performance of Services which are proved to the reasonable satisfaction of the Company to be damaged or defective due to inherent defects in material, or workmanship, repair, or at its option replace, such Goods or reperform, or at its option, provide a refund for such Services. This obligation will not apply where:

9.1.1
the Goods have been improperly altered in any way whatsoever, or have been subject to misuse or unauthorised repair;

9.1.2
the Goods have been improperly installed or connected;

9.1.3
any maintenance requirements relating to the Goods have not been complied with;

9.1.4
any instructions as to storage of the Goods, set out on the Company’s website as updated from time to time, or as reasonably required, have not been complied with in all respects; or

9.1.5
the Buyer has failed to notify the Company of any defect or suspected defect within 14 days of the delivery or performance where the defect should be apparent on reasonable inspection, or within 14 days of the same coming to the knowledge of the Buyer where the defect is not one which should be apparent on reasonable inspection, and in any event no later than 12 months from the date of delivery or performance.

Any Goods which have been replaced will belong to the Company. Any repaired or replacement Goods will be liable to repair or replacement under the terms specified in Condition 9.1 for the unexpired portion of the 12 month period from the original date of delivery of the replaced Goods.

Exclusion of Liability

9.3
In the event of any breach of the Company’s express obligations under Conditions 7.4, 9.1 and 9.2 above the remedies of the Buyer will be limited to damages.

9.4
The Company does not exclude its liability (if any) to the Buyer:
9.4.1
for breach of the Company’s obligations arising under section 12 Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982;

9.4.2
for personal injury or death resulting from the Company’s negligence;

9.4.3
under section 2(3) Consumer Protection Act 1987;

9.4.4
for any matter which it would be illegal for the Company to exclude or to attempt to exclude its liability; or

9.4.5
for fraud.

9.5
Except as provided in Conditions 7.4 and 9.1 to 9.4, the Company will be under no liability to the Buyer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with:

9.5.1
any of the Goods, or the manufacture or sale or supply, or failure or delay in supply, of the Goods by the Company or on the part of the Company’s employees, agents or sub-contractors;

9.5.2
any breach by the Company of any of the express or implied terms of the Contract; or

9.5.3
any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; or

9.5.4
any statement made or not made, or advice given or not given, by or on behalf of the Company.

9.6
Except as set out in Conditions 7.4 and 9.1 to 9.4, the Company hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Buyer.

9.7
The Buyer acknowledges that the above provisions of this Condition 9 are reasonable and reflected in the price which would be higher without those provisions, and the Buyer will accept such risk and/or insure accordingly.

9.8
The Buyer agrees to indemnify, keep indemnified and hold harmless the Company from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which the Company incurs or suffers as a consequence of a direct or indirect breach or negligent performance or failure in performance by the Buyer of the terms of the Contract. 10.

10. FORCE MAJEURE

10.1
The Company will not be in breach of the Contract or otherwise liable to the Buyer in any manner whatsoever for any failure or delay in performing its obligations under the Contract due to any cause preventing or making unduly onerous the Company from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the Company including, without limitation, strikes, lockouts or other industrial disputes (whether involving the work force of the Company or otherwise), protest, act of God, war, national emergency, an act of terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, explosion, flood, storm, fog or adverse weather conditions, epidemic, delays in shipments or default of suppliers, agents or subcontractors (“Force Majeure”) and the Company will be entitled to a reasonable extension of time for performing such obligations.

10.2
If the Force Majeure in question continues for more than three months, either party may give written notice to the other to terminate the Contract. The notice to terminate must specify the termination date, which must not be less than 15 days after the date on which the notice is given, and once such notice has been validly given, the Contract will terminate on that termination date.

11. TERMINATION

11.1
The Company may by notice in writing served on the Buyer terminate the Contract immediately if the Buyer:

11.1.1
is in material breach of any of the terms of the Contract and, where the breach is capable of remedy, the Buyer fails to remedy such breach within 30 days service of a written notice from the Company, specifying the breach and requiring it to be remedied. Failure to pay any sums due in accordance with Condition 5.1 is a material breach of the terms of the Contract which is not capable of remedy;

11.1.2
becomes bankrupt, insolvent, enters into any arrangement or composition with its creditors, has passed a resolution or is subject to a petition presented to any court for its winding up (except for the purposes of amalgamation or reconstruction), has a receiver, manager or administrative receiver appointed in respect of the whole, or any part of, the Buyer’s undertaking or assets, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court;

11.1.3
ceases to trade;

11.1.4
has any distraint, execution or other process levied or enforced on any of its property or ceases to trade;

11.1.5
has a change in its management and/or control as defined by section 416 Income and Corporation Taxes Act 1988; or

11.1.6
the equivalent of any of the above occurs to the Buyer under the jurisdiction to which the Buyer is subject;

or the Company reasonably anticipates that circumstances is about to occur.

one of the above set

of

11.2
The termination of the Contact howsoever arising is without prejudice to the rights, duties and liabilities of either the Buyer or the Company accrued prior to termination and the conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.

11.3
The Company will be entitled to suspend any deliveries or performance otherwise due to occur following service of a notice specifying a breach under Condition 11.1.1, until either the breach is remedied or the Contract terminates, whichever occurs first.

12. INTELLECTUAL PROPERTY

12.1
The Company retains all Intellectual Property Rights in the Goods and Services. No right or licence is granted to the Buyer in respect of the Intellectual Property Rights of the Company, except the right to use, or re-sell the Goods or use the Services in the Buyer’s ordinary course of business.

12.2
The Buyer will not without the Company’s prior consent allow any trade marks of the Company or other words or marks applied to the Goods to be obliterated, obscured or omitted nor add any additional marks or words.

12.3
For the purposes of this Condition 12, ‘Intellectual Property Rights’ means all intellectual and industrial property rights including patents, know-how, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade marks, rights to prevent passing off for unfair competition and copyright, database rights, topography rights and any other rights in any invention, discovery or process, in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions.

13. CONFIDENTIALITY

13.1
The Buyer will keep confidential any and all Confidential Information that it may acquire and will not use the Confidential Information for any purpose other than to perform its obligations under the Contract. The Buyer will ensure that its officers and employees comply with the provisions of this Condition 13.

13.2
The obligations on the Buyer set out in Condition 13.1 will not apply to any information which:

13.2.1
is publicly available or becomes publicly available through no act or omission of the Buyer; or

13.2.2
the Buyer is required to disclose by order of a court of competent jurisdiction.

13.3
For the purposes of this Condition 13, ‘Confidential Information’ means all information in respect of the business of the Company including, but not limited to, know-how or other matters connected with the Goods or Services, financial information or information regarding prices, business, financial, marketing, development or manpower plans, customer lists or details, information concerning the Company’s relationships with actual or potential clients, customers or suppliers and the needs and requirements of the Company and of such persons and any other information which, if disclosed, will be liable to cause harm to the Company.

14. GENERAL

14.1
Time for performance of all obligations of the Buyer under the Contract is of the essence.

14.2
Time for performance of all obligations of the Company under the Contract is not and may not be made by notice, of the essence.

14.3
Each right or remedy of the Company under any Contract is without prejudice to any other right or remedy of the Company under this or any other Contract.

14.4
If any condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Contract and will be ineffective without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect.

14.5
No failure or delay by the Company to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.

14.6
The Company may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under the Contract.

14.7
The Contract is personal to the Buyer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without the Company’s prior written consent.

14.8
The parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.

14.9
The Contract contains all the terms which the Company and the Buyer have agreed in relation to the Goods and Services and supersedes any prior written or oral agreements, representations or understandings between the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Condition 14.8 will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.

14.10
Any notice in connection with the Contract will be in writing addressed to the other party at its registered office, or principal place of business and will be delivered by hand, first class post, special delivery post, Airmail or facsimile. The notice will be deemed to have been duly served, if delivered by hand, when left at the proper address for service, if by pre-paid, first-class post or special delivery post, 48 hours after being posted, if by Airmail 14 days after being posted or if by facsimile, at the time of transmission.

15. DISPUTE RESOLUTION

15.1
The parties shall attempt to resolve any dispute arising out of or relating to any Contract through negotiations between directors of the parties, who have authority to settle the same. If the matter is not resolved by negotiation within 14 days of receipt of a written notice from one party to the other declaring a dispute and seeking such negotiations, the parties will attempt to resolve the dispute in good faith through mediation as set out in this condition 15.

15.2
Any dispute or differences which shall at any time arise between the Company and the Buyer which is not resolved pursuant to condition 15.1, shall be referred to an expert to be agreed upon by the parties or (in default of agreement within 10 business days) to be selected at the instance of either party by the President for the time being of CESR.

15.3
Any such expert shall act as an expert and not as an arbitrator and shall be entitled to appoint such technical expert or experts as he considers necessary to assist him in determining the matter referred to him. The decision of the expert (which shall be given by him in writing stating his reasons) shall be final and binding on the parties.

15.4
Each party shall provide any expert with such information as he may reasonably require for the purposes of his determination; if either party claims any such information to be confidential to it then, provided that in the opinion of the expert that party has properly claimed the same as confidential, the Expert shall not disclose the same to the other party or to any third party.

15.5
The costs of any expert (including the costs of any technical expert appointed by him) shall be borne in such proportions as the expert may determine to be fair and reasonable in all the circumstances or, if no such determination is made by the Expert, by the parties in equal proportions.

16. LAW AND JURISDICTION

The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any term of the Contract will be governed by English law. The parties agree to submit to the exclusive jurisdiction of the English Courts to settle any disputes which may arise out of or in connection with the Contract.