Terms & Conditions

 

Terms & Conditions

 

Optolab Limited, incorporated and registered in England with company number 07917355 whose registered office is at 83 Sefton Lane, Maghull, Liverpool, L31 8BU (“Optolab”) provides testing, verification, and/or inspection services relating to optical and sunglass frame products (“Services”). Optolab shall provide the Services according to the following terms and conditions (“Conditions”). These Conditions are a binding legal agreement between Optolab and the person or organization that receives Services provided by Optolab (“Customer”).

1. BASIS OF CONTRACT
1.1 The Customer may request Optolab to provide the Services, which the Customer may place by either completing Optolab’s then current order form (“Order Form”) or by other written communication (in either case an “Order”). The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions. The Order should provide full details of the optical and/or sunglass frame product(s) in respect of which the Customer wishes Optolab to carry out the Services (“Test Item”) and any guidelines, standards or regulations which the Customer requests Optolab to consider in carrying out the Services.

1.2 The Order shall only be deemed to be accepted when Optolab issues written acceptance of the Order at which point and on which date a contract shall come into existence (“Contract”).

1.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Optolab which is not expressly set out in the Contract.

1.4 Any samples, drawings, descriptive matter or advertising issued by Optolab, and any descriptions or illustrations contained in Optolab’s catalogues or brochures or on its website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

1.5 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.

1.6 Subject to Condition 10, unless terminated earlier in accordance with these Conditions the Contract shall terminate upon delivery of the Test Report (as defined below).

2. SUPPLY OF SERVICES
2.1 As part of the Services, Optolab shall prepare and deliver to the Customer a written report setting out Optolab’s findings and opinions in relation to the testing, verification, and/or inspection of the Test Item (“Test Report”).

2.2 Optolab warrants to the Customer that the Services shall be provided using reasonable care and skill.

2.3 Optolab shall use all reasonable endeavours to meet any performance dates which may be specified in Optolab’s written acceptance of the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

2.4 Optolab shall have the right to make any changes to the Services which are necessary for compliance with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services and Optolab shall notify the Customer in any such event.

2.5 The Customer agrees, acknowledges and accepts that:
2.5.1 The Test Report shall be based solely on the Test Item and information provided to Optolab by the Customer and Optolab shall have no obligation to conduct any independent investigation or enquiry in to the authenticity of the Test Item or accuracy of the information.

2.5.2 Unless expressly stated otherwise in the Test Report, the results of the Services set out in the Test Report are made solely in relation to the specific Test Item supplied by the Customer. The results set out in the Test Report are not intended to be indicative or representative of the quality or characteristics of any other goods of the Customer (including goods in the lot of which the Test Item is a sample) and the Customer shall not rely on the Test Report as being so indicative or representative of such other goods.

2.5.3 Except as expressly stated in the Test Report, the Test Report is not conclusive evidence of the safety, resilience or reliability of any Test Item.

2.5.4 The Test Report shall reflect the findings of Optolab at the time of testing of the Test Item only and Optolab shall have no obligation to update the Test Report after the date of its delivery to the Customer.

2.5.5 The Test Report is provided solely for exclusive use by the Customer and shall not be published, used for advertising purposes, distributed to any third parties or be otherwise publically disclosed without Optolab’s prior written consent.

2.5.6 Optolab may be required to disclose information and data relating to the Test Item and the Customer to relevant accreditation bodies in order for Optolab to demonstrate its compliance with relevant accreditation criteria.

2.5.7 Where the Customer anticipates disclosing or referring to the Services or the Test Report in any legal proceeding, arbitration, dispute resolution forum or other proceeding it must notify Optolab prior to disclosing or referring to the same in such proceeding. Optolab, its employees and agents shall have no obligation to act as a witness or provide a witness statement at such proceeding unless Optolab agrees in advance to do so for a separate an additional fee.

2.5.8 Optolab does not guarantee that Optolab’s opinions or findings set out in the Test Report will be recognized or accepted by third parties.

2.6 NO REPRESENTATION, WARRANTY, OR GUARANTEE, EXPRESS OR IMPLIED, IS INCLUDED IN THIS AGREEMENT, OR IN ANY QUOTATION OR OTHER DOCUMENT PROVIDED UNDER THIS AGREEMENT.

3. CHARGES AND PAYMENT
3.1 Optolab shall charge the Customer based on the time spent performing the Services (“Charges”) which, unless expressed otherwise, shall exclude VAT at the prevailing rate.

3.2 Optolab shall not give the Customer an estimate of Optolab’s Charges unless the Customer specifically asks Optolab to do so. Optolab reserves its right to revise any estimate given to the Customer at any time. Any estimate given by Optolab shall not constitute an offer, and is only valid for the period specified by Optolab.

3.3 Optolab shall also charge the Customer for any expenses reasonably incurred by Optolab or the individuals whom Optolab engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, costs of services provided by third parties and required by Optolab for the performance of the Services, costs of any additional insurance premiums that Optolab is obliged to pay owing to the nature of the Test Item and for the cost of any materials (together “Expenses”).

3.4 Unless a shorter period is specified on Optolab’s written acceptance of the Order, the Customer agrees to pay Optolab the Charges and any Expenses within 30 days of the date of Optolab’s invoice in full and in cleared funds to a bank account nominated in writing by Optolab and the Customer accepts that time for payment shall be of the essence of the Contract. Optolab reserves the right to invoice the Customer for the Charges and Expenses at any time, including in advance of Optolab commencing the Services.

3.5 Without limiting any of Optolab’s other rights or remedies, if the Customer fails to make any payment due to Optolab under the Contract by the due date for payment (“Due Date”) then;
3.5.1 Optolab shall have the right to charge interest on the overdue amount at the rate of 3% per cent per annum above the then current Bank of England base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly; and
3.5.2 the Customer shall reimburse Optolab for any costs which Optolab incurs in collecting the overdue amounts, including but not limited to court costs and fees and expenses of legal advisors, attorneys and collection agencies; and
3.5.3 the Customer shall not be entitled to use or rely upon the Test Report until all undue amounts (together with interest accrued thereon and any costs referred to in Condition 3.5.2) are paid to Optolab in full.

3.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Optolab in order to justify withholding payment of any such amount in whole or in part. Optolab may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Optolab to the Customer.

4. THE CUSTOMER’S OBLIGATIONS
4.1 The Customer must promptly supply Optolab with the Test Item upon demand by Optolab.

4.2 The Customer shall provide adequate instructions to allow Optolab to properly perform the Services including without limitation technical drawings, plans or specifications relating to any Test Item, details and information relating to the proposed use(s) and purpose(s) of the Test Item, details of the Customer’s deadlines or dates relevant to the Test Item and such other information and materials as Optolab may reasonably request in order to supply the Services.

4.3 The Customer shall at all times co-operate with Optolab in all matters relating to the Services.

4.4 The Customer represents and warrants that all information and data provided to Optolab by the Customer, or on the Customer’s behalf, is complete and accurate and that Optolab may rely thereon when providing the Services. If any information and data provided to Optolab by the Customer or on the Customer’s behalf is incomplete and/or inaccurate, Optolab shall not be liable in any manner for any Services deficiencies.

4.5 The Customer confirms that the Test Item is not dangerous (as distinct from unsafe) or illegal and that the Customer has obtained all licences, permissions and consents necessary to lawfully supply Optolab with the Test Item and to allow the Services in relation to the same to be performed.

4.6 If the performance of any of Optolab’s obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation then Optolab shall without limiting Optolab’s other rights or remedies have the right to suspend performance of the Services until the Customer remedies its default, and to rely on the Customer’s default to relieve it from the performance of any of its obligations to the extent the Customer’s default prevents or delays Optolab’s performance of any of Optolab’s obligations. In such circumstances, Optolab shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Optolab’s failure or delay to perform any of Optolab’s obligations and the Customer shall reimburse the Optolab on written demand for any costs or losses sustained or incurred by Optolab arising directly or indirectly from the Customer’s default.

5. TITLE
Title in any Test Item and any accompanying documentation, materials or data supplied by, for or on behalf of the Customer shall pass to Optolab immediately upon receipt by Optolab, unless the parties have agreed in writing at the outset that title in any Test Item documentation, materials or data shall not pass to Optolab. Optolab shall not be obliged to return the Test Item nor any documentation, materials or data to the Customer at any time. For the avoidance of doubt, Optolab may therefore, in its sole discretion, destroy any Test Item which has not already been destroyed or damaged in connection with the provision of the Services.

6. CONFIDENTIALITY
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party

7. INTELLECTUAL PROPERTY
7.1 For the purposes of this Condition 7, “Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

7.2 The Customer shall not acquire, nor shall the Customer register or attempt or permit to be registered any Intellectual Property Rights in any methods, tools, trademarks, certification marks, know-how, or equipment that Optolab uses to provide the Services. Except as otherwise authorized by Optolab in writing, the Customer shall not use the name or Intellectual Property Rights of Optolab, its subsidiaries, affiliates, or parent on any of the Customer’s goods or their containers or packaging, or in connection with any advertising, promotions, or otherwise.

7.3 All Intellectual Property Rights in or arising out of or in connection with the Services, including Intellectual Property Rights in the Test Report, shall be owned by Optolab.

8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
8.1 Nothing in these Conditions shall limit or exclude Optolab’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors, fraud or fraudulent misrepresentation or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

8.2 Subject to Condition 8.1:
8.2.1 If the Customer wishes to assert a claim arising from or in connection with the performance, purported performance or non-performance of any Services by Optolab, the Customer must submit full details of that claim to Optolab in writing within 60 days from the date of discovery of the potential claim and in any event not more than twelve months after the date of delivery of the Test Report to the Customer. The Customer waives any and all such claims which are not submitted within these time periods; and
8.2.2 Optolab shall under no circumstances whatever be liable to the Customer whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any indirect or consequential loss, loss of profit, loss of anticipated savings, loss or cancellation of contracts, loss of goodwill, loss of future business or loss of production (even if such losses were reasonably foreseeable), arising under or in connection with the Contract; and
8.2.3 Optolab’s total liability to the Customer or any third party in respect any claim for loss, damage or expense of whatever nature or magnitude and howsoever 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 £5,000 or ten times the Charges payable in respect of the Services, whichever is the greater amount.
8.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

9. TERMINATION
9.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 working days of that party being notified in writing of the breach.

9.2 Without limiting Optolab’s other rights or remedies, Optolab may terminate the Contract with immediate effect by giving written notice to the Customer if;

9.2.1 the Customer suspends, or threatens to suspend, payment of its debts or is declared bankrupt or makes any arrangements with or for the benefit of the Customer’s creditors;
9.2.2 the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
9.2.3 the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

9.3 Without limiting its other rights or remedies, Optolab shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and Optolab if the Customer becomes subject to any of the events listed in Condition 9.2, or Optolab 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. CONSEQUENCES OF TERMINATION
10.1 On termination of the Contract for any reason:
10.1.1 the Customer shall immediately pay to Optolab all of Optolab’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Optolab shall submit an invoice, which shall be payable by the Customer immediately on receipt;
10.1.2 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
10.1.3 Conditions 3, 5, 6, 7, 8, 10, 11 and 12 shall continue in full force and effect.

11. INDEMINITY
The Customer shall, except to the extent of Optolab’s liability to the Customer hereunder, defend, hold harmless, and indemnify Optolab and Optolab’s officers, directors, trustees, employees, agents, or subcontractors against all actual or alleged claims made by any third party for loss, damage or expense of whatsoever nature and howsoever arising out of these Conditions including without limitation the performance or non-performance of any Services or relating to the sale, resale, manufacture, distribution or use of any of the Customer’s goods.

12. GENERAL
12.1 Optolab may communicate with the Customer by unencrypted e-mail transmissions. The Internet is not a secure medium of communication and others may intercept confidential or sensitive communications sent via email, which may result in the email (or documents attached to the same) being deleted and/or modified. Optolab disclaims any and all responsibility and liability arising out of or in connection with e-mail transmissions.

12.2 Optolab shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of any event or act or force majeure or any event or act beyond Optolab’s reasonable control. If any such act or event occurs, Optolab may immediately cancel or suspend performance of the Services without incurring any liability whatsoever to the Customer.

12.3 Optolab may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent. The Customer shall not, without the prior written consent of Optolab, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

12.4 Subject to Condition 8.2.1, a waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. Subject to Condition 8.2.1, a failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. Subject to Condition 8.2.1, no single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

12.5 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

12.6 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

12.7 A person who is not a party to the Contract shall not have any rights under or in connection with it.

12.8 Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Optolab.

12.9 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.