ORIGINAL BTC USATERMS AND CONDITIONS OF SALE
THESE TERMS AND CONDITIONS OF SALE (“TERMS”) ON WHICH ORIGINAL BTC USA, LLC (“ORIGINAL BTC”, “WE”, “US”, OR “OUR”) SUPPLY GOODS TO CUSTOMERS (“CUSTOMER”, “YOU”OR “YOUR”). WE WILL NOT BE BOUND BY ANY TERMS OF CUSTOMER’S ORDER THAT ARE IN ADDITION TO OR INCONSISTENT WITH THESE TERMS. OUR ACKNOWLEDGEMENT, CONFIRMATION, OR ACCEPTANCE OF CUSTOMER’S ORDER DOES NOT CONSTITUTE ANY AGREEMENT BY US TO ANY TERMS OR CONDITIONS CONTAINED IN CUSTOMER’S ORDER, EXCEPT THE DESCRIPTION OF THE GOODS, QUANTITY AND PRICING. ACCEPTANCE BY CUSTOMER OF THESE TERMS WILL BE DEEMED MADE AT THE EARLIER OF CUSTOMER’S: (1) ACCEPTANCE OR ACKNOWLEDGMENT OF RECEIPT OF THESE TERMS WITHOUT WRITTEN OBJECTION THERETO, (2) PLACEMENT OF A PURCHASE ORDER WITH US THAT REFERS TO A VALID ORIGINAL BTC QUOTATION OR THESE TERMS, OR (3) FAILURE TO DELIVER TO US WRITTEN NOTICE OF CUSTOMER’S REJECTION OF THESE TERMS WITHIN FIVE (5) BUSINESS DAYS FOLLOWING OUR ACCEPTANCE OF CUSTOMER’S ORDER.Please read these Terms carefully before submitting an order and pay particular attention to Paragraphs 5.3, 9.2, 9.3, and 14, which set out the extent of our liability.
1.1. The words and phrases defined below, and elsewhere in these Terms, will have the particular meanings given to them:
- Bespoke Goods - any Goods which differ to our ‘standard’ products (being those for sale on the Original BTC website at the time of placing an order);
- Business - any person who is not a Consumer; Consumer an individual purchasing Goods for purposes wholly or mainly outside his or her trade, business, craft or profession;
- Contract - the Contract between you and us for the sale of the Goods which shall comprise exclusively of these Terms and any other terms specifically accepted in writing by an authorized signatory of Original BTC;
- Goods - any goods (or parts) supplied by us (unless otherwise indicated, ‘Goods’ includes Bespoke Goods); and
- Site means our US website located at www.us.originalbtc.com.
1.2. Headings will not affect the interpretation of these Terms.
1.3. Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression are illustrative and do not limit the words, description, phrase or terms surrounding them.
1.4. All other terms and conditions (whether express or implied) are excluded from the Contract and will not apply.
2.1. We are a manufacturer of classic and contemporary lighting products produced in the UK. You can contact us by telephoning us at (646) 759-9007 or writing to Original BTC USA, 56 Greene Street, New York, NY, 10012 or emailing firstname.lastname@example.org.
2.2. Original BTC USA is a company registered in USA with company number 03650223 and VAT number 717962406, Our registered office is at 56 Greene Street, New York, NY, 10012.
PLACING AN ORDER
3.1. If you wish to place an order for Goods, including by following our online checkout procedure on our Site, by emailing email@example.com, or by writing to the address in Paragraph 2.1. We can, on request, provide a written quotation which, unless withdrawn earlier, is valid for 30 days.
3.2. When you place an order (whether by accepting a quote, or paying for the Goods), we will review the order and either accept or reject it in our sole discretion. Any acceptance by us of your order is subject to, and is made only on, these Terms. IF YOU DO NOT AGREE TO THE CONTRACT, YOU MAY CANCEL YOUR ORDER NO LATER THAN TWO (2) BUSINESS DAYS FOLLOWING OUR ACCEPTANCE OF YOUR ORDER (“CONTRACT REJECTION PERIOD”). IF YOU REJECT THE CONTRACT, WE WILL BE RELEASED FROM ALL OBLIGATIONS, AND WILL HAVE NO OBLIGATION WHATSOEVER, TO DELIVER ANY GOODS TO YOU EVEN IF WE HAD ACCEPTED YOUR ORDER.
3.3. We may agree to loan Goods to you for use as samples (“Samples”). Samples will be provided at our discretion and their status must be agreed by us before your order is accepted. Samples will be invoiced and must be paid for in full (either on placing an order or when the invoice becomes payable, depending on the payment terms which have been agreed), provided that if the Samples are returned to us within 30 days in their original condition, then we will refund the cost of the Samples to you or credit the relevant invoice (as applicable).
3.4. If you are contracting as a Business:
- 3.4.1. Once you have entered into the Contract you will be liable to pay for the Goods in their entirety. Each Contract is final and binding once formed and, even if the Goods have not been delivered, you may only cancel if we agree in writing to allow you to do so or as otherwise expressly permitted in these Terms.
- 3.4.2. Where we permit you to cancel the Contract under Paragraph 3.4.1, you will be liable for any expense or cost incurred by us (which may include the cost of manufacturing and storing those Goods) and for our restocking fee (which is typically 30% of the sale price).
4.1. The images of Goods on our website and in brochures are only illustrative. We have made every effort to display colors accurately, but cannot guarantee that the pictures accurately reflect the color of those Goods in real life.
4.2. We may make small changes to the Goods to comply with laws or to implement minor technical adjustments and improvements (e.g. for safety or performance purposes).
4.3. Where we provide services related to the Goods, these will be limited to manufacturing and design services (in the case of Bespoke Goods) based on any drawing, design or specification (“Specification”) that you provide.
4.4. We will electrically wire the Goods for the continental U.S. We accept no responsibility for any use of the Goods outside the continental U.S. they were sold to or for any non-compliance of the Goods with electrical or wiring regulations outside the US. Notwithstanding the foregoing, if you are based outside the US, we will wire the Goods for your location at your written request.
5.1. If we are making Bespoke Goods to Specifications you provide, you must provide us with a workable, easily understood and accurate Specification.
5.2. Any original copyright, design right and other intellectual property in the Specification will remain your property, and you agree that we may use such intellectual property rights to the extent necessary to manufacture and supply the Bespoke Goods. However, any part of the Specification or the Bespoke Goods which is (or which could reasonably be considered to be) an adaptation, amendment, improvement of, or are otherwise derived from or related to the Goods (or any of our other intellectual property) will vest in us and be our sole property (and you agree to, and you do hereby, assign such rights to us absolutely and unconditionally on a worldwide and irrevocable basis).
5.3. You must ensure the Specification is correct and does not infringe any third-party right (including patents, registered designs and other intellectual property rights). We will not be liable for any loss or damage that arises as a result of us following a Specification you have provided.
5.4. If a third-party brings a claim against us alleging its rights have been infringed as a result of our following the Specification, you will be responsible for, and you agree to defend (at our option, and your expense), indemnify and hold us harmless from and against all liabilities, costs, expenses, damages, judgements, awards, and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and professional costs and expenses) that we suffer or incur arising from, or in connection with, such a claim.
5.5. We may amend any Specification for the same reasons we might amend the Goods under Paragraph 4.2 or to avoid any actual or likely infringement of third-party rights.
6.1. After we accept your order, we will contact you with an estimated delivery date (lead-time) or (estimated time scale).
6.2. If delivery is delayed by an event outside our control we will inform you of this and of the steps being taken to minimise the delay. Notwithstanding anything in the Contract, we will not be liable for delays caused by an event outside our control.
6.3. If delivery is attempted and failed, and you do not re-arrange delivery, we will contact you for further instructions and may charge you for storage and further delivery. If we cannot contact you or re-arrange delivery or collection we may terminate the Contract by written notice and without further liability to us. If we terminate under this Paragraph 6.3, we may retain the purchase price as compensation for your breach of the Contract except to the extent prohibited by applicable law.
6.4. Because of the risk that delivery could be delayed, or that the Goods could be damaged in transit, you agree not to schedule or commit to any third-party products or services (such as hiring electricians to install the Goods) until after the Goods are delivered to you and you have checked they are complete and undamaged. We will not be liable for any third-party costs (including cancellation or call-out fees) which result from the Goods not arriving on time or in working order.
6.5. The order confirmation or invoice will contain details of the delivery method and delivery charges. Title will pass to you upon completion of payment. The Goods will be delivered to your chosen address, and it will be your responsibility from the time they are delivered. Risk of loss shall transfer to you upon delivery of the Goods to you. However, if you choose to collect the Goods, the risk of loss shall transfer to you when you or your designated carrier collects the Goods from Original BTC’s facility in New York or England as specified by us or other shipment point designated by us on an Ex Works (Incoterms 2000) basis. In such case, you will be responsible and will reimburse us for any shipping charges incurred by us, including transportation charges and all taxes, duties, and any other governmental assessment applicable to any shipment and you will be responsible to provide insurance against loss or damage. Where we agree to post or courier the Goods, delivery shall take place when the Goods are received or signed for. Once delivery has occurred, any future damage to or loss of the Goods shall be your responsibility.
6.6. We may deliver by installment, each of which will be invoiced and paid for separately. Any delay in delivery or defect in an installment will not entitle you to cancel any other installment.
6.7. All claims for damage to, or partial loss of, the Goods in transit must be made in writing to both us and the carrier within 48 hours of delivery. In the case of non-delivery of the entire consignment, claims must be made in writing to both us and the carrier within seven days of you (or your agent) being notified that the Goods have been dispatched. To the maximum extent permitted by applicable law, if no claim is made within the times mentioned above, the Goods shall be deemed to have been delivered in accordance with the Contract.
6.8. Additionally, if you are contracting as a Consumer:
- 6.8.1. If we terminate the Contract under Paragraph 6.3 above, we may keep some or all of the amount paid to cover our costs;
- 6.8.2. If delivery is likely to be substantially delayed (that is, more than sixty (60) days following your full payment on the order), you may cancel the Contract and obtain a refund for Goods not received, provided that we may keep a portion of the amount paid to cover our costs if the delay was caused by an event outside of our control; and
- 6.8.3. If, you and we agree in the Contract that on-time delivery is essential and we miss that deadline, you may terminate the Contract and obtain a refund of the amounts you paid for Goods not received, provided that we may keep a portion of the amount paid to cover our costs if the delay was caused by an event outside of our control. Otherwise any delivery date will be an approximate estimate only.
- 6.9.1. Unless otherwise agreed, if you wish to test or inspect the Goods you must do so at our premises prior to delivery;
- 6.9.2. Any date named for despatch or delivery is an estimate only and not of the essence;
- 6.9.3. Subject to Paragraph 6.2, if we failed to deliver the Goods, our liability shall be limited to the price of the Goods paid to us;
7.1. The Goods may be subject to sales, and other applicable taxes, duties or charges as set forth on the applicable invoice.
7.2. If you are a Business who we agree to provide Goods to on credit, all payments are due 30 days from the date of the invoice (unless alternative terms, which will be set out on our invoice, are agreed in writing between you and us). If the financial condition of your Business changes or your payment history makes it advisable, we may at any time change payment terms, including requiring payment prior to delivery. If any proceeding is brought by or against your Business under bankruptcy or insolvency laws, we have the right to cancel any outstanding orders/ deliveries.
7.3. We may charge interest at a rate of 1.5% per month or the maximum amount allowed by applicable law, if lower, from the due date until paid on late payments.
7.4. The price of the Goods is the price set out in our acceptance of your order, or, if no price is quoted, the price set out in Original BTC’s published price list in force as at the date of delivery. All payments will be made in U.S. dollars unless otherwise agreed in writing by us. Any amounts due to us under the Contract must be paid in full without any set-off or deduction.
7.5. We reserve, until full payment has been received, a purchase money security interest in the Goods sold here under and all proceeds thereof. You agree to execute any document appropriate or necessary to perfect our security interest, or in the alternative, we may file the Contract and/or any invoice as a financing statement and/or chattel mortgage. We reserve all rights granted to a secured creditor under the California Commercial Code, including the right to repossess the Goods upon your default. You agree to assist, at our expense, in our repossession of the Goods upon such default.
8.1. Unless otherwise agreed, the Goods are not intended for re-sale. However, if you are contracting as a Business, we recognise that you may buy Goods on an ad-hoc basis on behalf of (or for resale to) a customer as part of a project you are involved with. In such circumstances you may resell the Goods to that customer, though you will not be (and may not hold yourself out as) one of our official resellers. Any warranties we provide to you may not be passed through to your customers. You agree to defend (at our option, and your expense), indemnify and hold us harmless from and against all liabilities, costs, expenses, damages, judgements, awards, and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and professional costs and expenses) that we suffer or incur arising from, or in connection with, any representations or warranties you provide your customers regarding the Goods.
WARRANTY, EXCLUSIONS, AND DISCLAIMER
9.1. We warrant solely to you that if the Goods fail within 24 months of the date of delivery due to defects in materials or workmanship then we shall repair the affected Goods free of charge. If we cannot (or it is not economically viable to) repair the faulty Goods, we will provide you with Goods of substantially equivalent specification as a replacement. If no substantially equivalent Goods are available we will refund you the price paid by you for the defective Goods. The foregoing states our entire liability, and your sole and exclusive remedy, for any defects in the Goods.
9.2. The Warranty does not cover any faults or damage caused by: failure to follow our assembly/installation instructions; improper installation, operation, or electrical connection; improper transportation or storage; alteration; misuse; abuse; neglect; cleaning or accident (including failure to follow instructions regarding the usage of the correct bulb); electrical or electromagnetic stress; excess humidity; fire or other hazard; or modification or repair by anyone other than us. If we determined that the Goods have been disassembled or tampered with in any way other than by us then the Warranty will not apply. The foregoing exclusions in this Paragraph 9.2 are collectively referenced as “Exclusions”. The Warranty does not apply to any patina or loss of finish.
9.3. EXCEPT FOR THE EXPRESS WARRANTY STATED IN PARAGRAPH 9.1, ALL GOODS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. WE EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED ON ANY WARRANTIES NOT EXPRESSLY SET FORTH IN PARAGRAPH 9.1.
APPLICATION OF LIMITATIONS AND DISCLAIMERS TO CONSUMERS
10.1. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers, so the exclusions set forth in Paragraphs 9.3, 14.4, 14.6, and 14.7 may not apply to you if you are a consumer. The limitations or exclusions of warranties and liability contained in the Contract do not affect or prejudice the statutory rights of a consumer. If you are a consumer, the limitations or exclusions of warranties and remedies contained in the Contract shall apply to you only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you purchased the Goods.
BASIS OF BARGAIN
11.1. The warranty disclaimer in Paragraph 9.3 and limitations of liability set forth in Paragraphs 14.4, 14.6, and 14.7 are fundamental elements of the basis of the agreement between Original BTC and you. We would not be able to provide the Goods on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Original BTC and its affiliates and suppliers.
TERM AND TERMINATION
12.1. The Contract will end once we have finished providing the Goods (and any related services), except that either you or we may terminate the Contract where permitted under these Terms, or in the event of a material breach by the other party which (if it can be remedied) is not remedied within 30 days of that party being notified of the breach having occurred.
12.2. We may terminate the Contract if:
- 12.2.1. You do not make any payment to us when due and do not make payment within 7 days of us reminding you payment is due;
- 12.2.2. You do not, within a reasonable time (not exceeding 7 days (unless a different period of time is agreed by us)) of us asking for it, provide us with information required for us to provide the Goods;
- 12.2.3. You do not, within a reasonable time (not exceeding 7 days (unless a different period of time is agreed by us) from delivery date we have notified you), allow us to deliver the Goods to you or collect them from us;
- 12.2.4. You become insolvent or bankrupt, unable to pay debts when due, enter into administration or liquidation; and
- 12.2.5. We reasonably believe you cannot, or will not, pay for the Goods in full.
12.4. Upon termination of the Contract or once we have finished providing the Goods (and any related services):
- 12.4.1. You shall immediately pay all of our outstanding unpaid invoices and interest;
- 12.4.2. Each parties’ rights and remedies existing at termination will continue unaffected; and
- 12.4.3. Any part of the Contract expressly or implicitly intended to survive after termination (including Paragraphs 5.3, 5.4, 6.3, 8, 13, 14 9.2, 9.3, 12.4, 16, 17 and 18) will remain in force.
13.1. The intellectual property and intellectual property rights (including trademarks) underlying, or relating to, the Goods are owned by us or our licensors and nothing in the Contract nor the sale of the Goods to you shall confer any licence or grant any rights in relation to such intellectual property or intellectual property rights.
14.1. Nothing in this Paragraph 14, or elsewhere in the Contract, excludes or limits any liability that cannot be lawfully excluded.
14.2. We do not accept any liability for loss or damage which arises as a result of any Exclusion, or of the Goods being used in a manner which is inconsistent with the instructions provided or any health or safety warnings attached to the Goods.
14.3. As set out in Paragraph 6.4, we do not accept liability for any third-party costs (such as the costs of calling out or cancelling an electrician).
14.4. Our liability for Bespoke Goods is limited under Paragraph 5.3, our Warranty liability is limited under Paragraph 9, and the foregoing is further limited by Paragraphs 14.6 and 14.7.
14.5. Neither party will breach the Contract or be liable for not performing its obligations (other than the paying fees when due) due to an event outside its reasonable control (even one that was foreseeable). This includes raw materials being unavailable, fire, flood, mechanical failure, non-performance by subcontractors or suppliers, or strikes and industrial action. If the delay or non-performance continues for more than 60 days, the unaffected party may terminate the Contract by providing 14 days' written notice to the affected party.
14.6. WE SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY HOWSOEVER ARISING), MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE FOR ANY OF THE FOLLOWING:
(a) ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL LOSS OR DAMAGE; OR
(b) ANY OF THE FOLLOWING LOSSES OR DAMAGES (WHETHER DIRECT OR INDIRECT): LOSS OF PROFITS; LOSS OF GOODWILL OR DAMAGE TO REPUTATION; LOSS OF BUSINESS; LOSS OF ANTICIPATED SAVINGS; OR LOSS OR DAMAGE OR CORRUPTION OF DATA OR INFORMATION.
14.7. OUR TOTAL AGGREGATE LIABILITY IN RESPECT OF ALL CLAIMS ARISING OUT OF, OR IN CONNECTION WITH, THE CONTRACT AND THE GOODS, AND THE PERFORMANCE OR NON-PERFORMANCE THEREOF, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY HOWSOEVER ARISING), MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE, WILL BE LIMITED TO THE PRICE PAID BY YOU FOR THE GOODS. THE LIMITATIONS SET FORTH IN PARAGRAPH 14.7 SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH IN THE CONTRACT.
16.1. You agree to defend (at our option, and your expense), indemnify and hold us harmless from and against all liabilities, costs, expenses, damages, judgements, awards, and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and professional costs and expenses) that we suffer or incur arising from, or in connection with, your negligence, breach of the Contract, an Exclusion, or the Goods being used in a manner which is inconsistent with the instructions provided or any health or safety warnings attached to the Goods.
17.1. The Contract constitutes the entire agreement between us and you and supersedes and extinguishes all previous agreements, promises, warranties, representations and understandings between you and us, whether written or oral, relating to its subject matter. Each party agrees it has no remedies in respect of any statement, representation, or warranty not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation on any statement in the Contract.
18.1. No variation of these Terms shall be effective unless it is in writing and signed by one of our officers.
18.2. If a party delays or fails to exercise any right, or only exercises a right or remedy in part, that shall not constitute a waiver of that right and that right or remedy may still be exercised at a later date.
18.3. The Contract is between you and us and no other person shall have any rights under it.
18.4. You may only transfer your rights or your obligations under the Contract with our prior written agreement. We may transfer our rights and obligations under the Contract without your consent to another person if we choose to do so.
18.5. Each of the paragraphs in these Terms operates separately. If any court or authority decides any of them are unlawful, the remaining paragraphs will remain in full force and effect.
18.6. The Contract will be governed by the laws of the State of New York and the U.S. without regard to conflicts of law provisions thereof. Unless waived by us, in our sole discretion, the exclusive jurisdiction for actions related to the subject matter of the Contract will be the state or federal courts located in New York, New York, and you hereby submit to the personal and exclusive jurisdiction of such courts.
18.7. The United Nations Convention on Contracts for the International Sale of Goods is excluded.
18.8. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of the Contract.