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Terms & Conditions

Terms & Conditions - Supplier Terms & Conditions - Customer

1. Acceptance

This Purchase Order (“PO”) contains the entirety of the Terms and Conditions (“Terms”) of Aerocom Metals Ltd (“Buyer”) offer. Neither Buyer nor Seller (“Seller”) shall be bound by oral or written agreements not expressly included in this PO. Acceptance of the PO is expressly limited to and made conditional upon the exclusivity of the Terms and Conditions and is expressly made conditional upon Seller’s assent to terms and conditions which differ from or are additional to those in Seller’s offer. This PO may be amended and altered only by a writing signed by authorised representatives of both Seller and Buyer expressly referencing the terms or conditions being modified, and purporting to constitute an amendment to this PO.

2. Scope

These Terms and Conditions, as may be amended from time to time, apply to the purchase by Buyer of all Products and/or services (“Product”) from Seller as described on the face of the PO or other documents referenced on the face of such PO. The term Product throughout these Terms and Conditions includes without limitation, raw materials, supplies, components, tooling equipment and all services. No PO is valid unless issued by Buyer on its official, electronic or otherwise generated, PO to the Seller. If there is an existing agreement executed by both Buyer and Seller, the terms and conditions of the executed agreement will prevail over the Terms hereunder.

3. Pricing. Risk of Loss

All prices payable by Buyer for the Product are stated in the PO and include the cost of packaging and delivery and shall be on the delivery term specified in the PO to the specified destination. Unless otherwise specified in this PO, title to the Product covered by this PO and all risk of loss or damage to such Product shipped shall be in Seller, irrespective of FOB or other delivery terms, and shall remain in the Seller until the Product have been delivered to Buyer’s applicable facility and have been accepted at that facility.

4. Quality

a) Seller shall meet all quality requirements of Buyer and all quality requirements of Buyer’s customers, including, but not limited to, all applicable plans, specifications, and other contract descriptions, as set forth on the face of the PO. The quality of the Product shall be subject to the satisfaction of the Buyer, who shall be entitled to reject non-conforming Product.

b) Non-Conforming Product – The Seller shall notify to the purchaser, in writing, of all instances of non-conforming product. This shall include the immediate notification, in writing, of instances where the seller becomes aware that already delivered parts / material, maybe nonconforming.

c) The Buyer or its designated representative or regulatory body shall have the right from time to time during business hours after reasonable notice to the Seller to (i) inspect the Product wherever it is located: (ii) remove samples of the Product for inspection and testing, and (iii) obtain factory site and other information from the Seller to confirm conformance of the Product with agreed specifications. No such inspection, testing or inquiry shall be deemed to be or result in any variation of any of the Seller’s obligations or a waiver of Buyer’s rights.

d) Records of documents received by the Seller, and created by the Seller, shall be retained and available for review by the Company, their customer, customers’ representatives, and/or the regulatory authorities.

e) The supplier shall prevent the use of suspected unapproved, unapproved and counterfeit parts / materials.

f) The supplier shall ensure that persons are aware of their contribution to product or service conformity, their contribution to product safety and the importance of ethical behaviour.

g) The Seller shall flow down the above Quality requirements to sub-suppliers and sub-contractors.

5. Packaging. Shipping

All Product covered by this PO, unless otherwise directed on the PO or in a writing signed by Buyer’s authorised representative, shall be suitably marked and shipped in accordance with the requirements of common carriers and when transportation costs are payable by the Buyer, in a manner to secure the lowest transportation cost. Seller shall pay all additional costs related to delivery of late shipments.

6. Delivery

The Seller shall make delivery to the specified destination by the due date stated on the PO or as otherwise agreed in writing by the Parties. Any such stated due date is of the essence and the Seller shall notify Buyer promptly if it reasonably anticipates that delivery will not be on time. Seller shall incur all costs related to unauthorised early delivery. The Seller warrants that upon acceptance of delivery at the destination the Seller will convey to Buyer good and marketable title to all Product free of any liens or encumbrances of any kind. Buyer shall not be obliged to buy or pay for, and Buyer or its designated representative may at any time after delivery reject, all or any part of a given delivery of Product that Buyer or its designated representative determine does not conform with the PO or agreed specifications. The Seller shall retain or reacquire title to, and bear all risks of loss of such non-conforming Product and shall at its own expense be responsible for the return or disposal. Seller shall incur all costs related to Buyer’s receiving non-conforming Product which costs include but are not limited handling, storing, and testing.

7. Warranty

The Seller warrants from the date of delivery or the appropriate period if contrary to applicable law, that all Product: a) strictly conform with the description contained in the PO, the quality and agreed specifications stated or incorporated as a schedule, by reference or otherwise, b) are merchantable, fit for the purpose intended, and free of defect.

8. Intellectual Property.

The Seller shall indemnify and hold Buyer and its customers harmless from all claims, losses, suits, damages, liability, and all expenses, (including but not limited to reasonable attorney’s fee) arising out of or related to any such actual patent, copyright, trademark or other property rights infringement or alleged direct or contributory infringement by reason of the manufacture, use or sale of the Product.

9. Indemnification

Seller agrees to indemnify and hold Buyer, its employees, directors, its affiliates and subsidiaries, and agents from and against any and all claims, libels, suits, judgments, fines, penalties, actions and proceedings, damages (including special, consequential, punitive, and exemplary damages), including costs and expenses including reasonable fees for attorneys, experts and consultants, settlement costs, incurred in connection with any claims (including lawsuits, administrative claims, regulatory actions, and other proceedings to recover for personal injury or death, property damage or economic losses) that are related in any way to or arise in any way from the Product, Seller’s representations, Seller’s performance or failure to perform obligations under any PO, including claims based on Seller’s breach or alleged breach of warranty or caused or alleged to have been caused by the use of such person or persons of any Product as shipped or delivered by Seller to Buyer.

Seller’s obligation to indemnify will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability, or otherwise, except to the extent any such liability arises solely out of the gross negligence or wilful misconduct of Buyer, its employees or authorised representative.

10. Termination by the buyer

Buyer reserves the right to terminate all or any part of each PO without liability of Buyer to the Seller, in the event: a) Seller repudiates, breaches, or threatens to breach any of the terms of the PO including without limitation, Seller’s warranties, b) Seller fails to perform or deliver Product as specified by Buyer, c) Seller fails to provide Buyer with adequate and reasonable assurances of Seller’s ability to perform timely any of Seller’s obligations under any PO, including without limitation, delivery of Product, d) Buyer terminates for breach of any other PO issued by Buyer to Seller in accordance with the terms of such PO, e) Seller attempts an assignment or transfer of any interest without prior written approval of Buyer, f) Seller fails to remedy the breach or violation listed above at 10 a-e within Thirty (30) days after receipt of written notice from Buyer, or g) Seller makes an assignment for the benefit of its creditors, commits any act of bankruptcy, has a receiver appointed, or otherwise admits of its inability to pay its debts as they mature, and Seller fails to remedy the breach or violation of this section 10e within Sixty (60) days after receipt of written notice from Buyer.

11 Assignment

The Seller shall not assign, transfer or otherwise dispose of any rights or obligations to any third party without the prior written consent of Buyer. All rights and obligations shall inure to the benefit of and be binding on any permitted assignee or successor of each Party.

12. Compliance with laws

Seller agrees to comply with all British, and local laws, executive orders, rules and regulations that may be applicable to Seller’s performance of its obligations to under each Purchase Order.

14. Confidentiality

Any specifications, samples, designs, formulations, financial data, or other information that Buyer identifies as or otherwise deems confidential (“Buyers Confidential Information”) and discloses to the Seller in connection with the PO shall remain the exclusive property of the Buyer and shall, along with any information derived from the same, be kept confidential by the Seller and its employees and agents and shall not, without Buyer’s prior written consent, be disclosed to any third party or used except for purposes of the PO. Notwithstanding the foregoing, such information shall not be deemed confidential to the extent that the Seller can demonstrate by written record that it was previously known by the Seller, became generally available to the public through no fault of the Seller, was disclosed to the Seller by a third party without breach of any confidentiality obligation, or is specifically required to be disclosed by law or legal process.

The Buyer and Seller agree that the covenant of confidentiality and nondisclosure set forth above shall survive termination of this Agreement and shall remain in effect for so long as the Buyers Confidential Information remains confidential. The Parties agree that this covenant shall supersede any contrary duration term set forth in any previously executed Confidentiality Disclosure Agreement.

15. Remedies

In the event Seller fails to perform in accordance with the PO (“Breach”), without limiting the generality of the foregoing, should any Product fail to conform to the warranties, or should Seller or any Product provided by Seller fail to meet any of the conditions or specifications set forth, and without prejudice to any other rights or remedies it may have under applicable law or in equity, Buyer shall have the right, after any applicable cure period, to recover from the Seller any and all mitigated losses and reasonable additional expenses incurred by Buyer arising from Seller’s Breach, and at Buyer’s option: a) require the Seller to promptly cure such Breach with conforming delivery at no additional charge or expense to Buyer and/or, b) reject any non-conforming Product, cancel any and all outstanding deliveries, cover by purchasing replacement Product from one or more other suppliers.

17. Insurance

The Seller agrees to maintain insurance covering the Product and its performance under the PO in compliance with applicable legal requirements and including but not limited to comprehensive commercial general liability (including products liability completed operations and third party liability coverage).

18. Force Majure

Seller’s failure to deliver Product as provided in the PO by reason of any of the following and such event shall not constitute an event of default or breach of any Terms: strikes, picket lines, boycott efforts, fires, floods, freeze, accidents, war (whether or not declared), revolution, riots, insurrections, acts of God, acts of government (including without limitation any agency or department of the United Kingdom or any other country), acts of the public enemy, scarcity or rationing of Petrol, Diesel or other fuel or vital products, inability to obtain materials or labour, or other causes which are reasonably beyond the control of the defaulting Party. Seller shall promptly notify the Buyer of any such delay and its cause. Provided that if any such cause that continues for more than Thirty (30) days the Buyer may at its own option cancel this PO and all its obligations to Seller.

19. Governing Law and Jurisdiction

The formation and performance of the contract shall be governed by the internal laws of the United Kingdom without regard to any applicable conflict of law provisions. Seller consents to the exclusive jurisdiction of any appropriate court of competent jurisdiction in the United Kingdom for any legal or equitable action or proceeding.

20. Miscellaneous

a) Failure of Buyer to insist upon performance of any provisions of these Terms or to exercise any rights hereunder shall not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such right. b) Any enforceable term, provision, undertaking or restriction contained in these Terms are held by a court of competent jurisdiction to be invalid, void or unenforceable (in whole or in part), the remainder of the terms, provisions, undertakings and restrictions will remain in full force and effect and will in no way be affected, impaired or invalidated. c) Any notice or request required or permitted to be given in connection with these Terms shall be sent by mail, prepaid, return receipt requested, by fax, with receipt confirmed, or by express delivery service to the address set forth on the PO or to any other business address furnished in writing by the intended recipient to the sender. The date of notice shall be deemed to be the date on which such notice has been sent by fax, received by mail, or by express delivery service. d) Section headings are for convenience only and are not to be construed as part of this Agreement.

21. Acceptance of Aerocom Metals LTD

Purchase Order shall indicate acceptance of their requirement to visit the Suppliers premises by appointment for the purposes of discussions with regulatory and statutory authorities.

22. Notification of changes to customer approvals

In the event that major any customer approvals are withdrawn, lapse or are terminated, it is the responsibility of the supplier to inform Aerocom Metals of these changes.

1. Definitions and Interpretations

1.1 In these Conditions:

“Business Day” means any day other than a Saturday, Sunday or bank holiday in England;

“the Buyer” means the person who accepts a quotation or offer of the Seller for the sale of Goods or whose order for the Goods is accepted by the Seller;

“these Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;

“the Contract” means the contract for the purchase and sale of the Goods under these Conditions;

“the Delivery Date” means the date on which the Goods are to be delivered as stipulated in the Buyer’s order and accepted by the Seller;

“the Goods” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions;

“Month” means a calendar month; “the Seller” means AEROCOM METALS LIMITED a company in the United Kingdom under number 6540830;

“Writing” means any communication effected by facsimile transmission or any comparable means.

1.2 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.

1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

2. Application of Conditions

The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation or offer of the Seller which is accepted by the Buyer, or any order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.

3. Incoterms

In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.

4. Basis of Sale

4.1 The Seller’s employees or agents are not authorised to make any representations or claims concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for beach of, any such representations which are not so confirmed.

4.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representations of the Buyer and the Seller.

4.3 Sales literature, price lists and other documents issued by the Seller in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. An order placed by the Buyer may not be withdrawn cancelled or altered prior to acceptance by the Seller. No contract for the sale of Goods shall be binding on the Seller unless the Seller has issued a quotation which is expressed to be an offer to sell the Goods; or has accepted an order placed by the Buyer, by whichever is the earlier of:-

4.3.1 the Seller’s written acceptance;

4.3.2 delivery of the Goods; or

4.3.3 the Seller’s invoice.

4.4 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

5. Orders and Specifications

5.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by an authorised representative of the Seller.

5.2 The specification for the Goods shall be those set out in the Seller’s sales documentation unless varied expressly in the Buyer’s order (if accepted by the Seller). The Goods will only be supplied in the minimum units (or multiples) stated in the Seller’s price list or in multiples of the sales outer as specified. Orders received for quantities other than these will be adjusted accordingly. Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Seller are intended as a guide only and the contents shall not be binding on the Seller.

5.3 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.

5.4 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

6. Price of the Goods

6.1 The price of the Goods shall be the price listed in the Seller’s published price list current at the date of acceptance of the Buyer’s order or such other price as may be agreed in writing by the Seller and the Buyer.

6.2 Where the Seller has quoted a price for the Goods other than in accordance with the Seller’s published price list the price quoted shall be valid for 7 days only or such other time as the Seller may specify.

6.3 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation or alteration of duties, any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

6.4 The Buyer undertakes not to offer the goods for resale in any country (not being member states of the European Community or Efta) notified by the Seller to the Buyer at or before the time the Buyer’s order is placed, or to sell the Goods to any person if the Buyer knows or has reason to believe that that person intends to resell the Goods in any such country.

6.5 The price is exclusive of any applicable value added tax excise, sales or taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, AEROCOM METALS TERMS OF SALE which the Buyer shall be additionally liable to pay to the Seller.

6.6 The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned at the Buyer’s expense undamaged to the Seller.

7 Terms of Payment

7.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall invoice the Buyer for the net sum due the goods on or at any time after despatch of the Goods.

7.2 Invoices are based on the quantity and condition of goods and at weights established by the Seller when the Goods leave the Seller’s factory or warehouse.

7.3 The Buyer shall pay the price of the Goods on the payment date stated in the Contract or if no express provision for the time of payment is contained in the Contract within 30 days after the date of invoice notwithstanding that delivery may not have taken place and/or that the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.

7.4 All payments shall be made to the Seller in the currency of the price stated in the Contract at its office as indicated on the form of acceptance or invoice issued by the Seller without any deduction credit or set off whatsoever.

7.5 The Seller is not obliged to accept orders from any customer or buyer who has not supplied the Seller with references satisfactory to the Seller; if at any time the Seller is not satisfied as to the creditworthiness of the Buyer it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event the Buyer shall be required to give security deposits in respect of goods already shipped and no further goods will be delivered to the Buyer other than against cash payment and notwithstanding any payment terms contained in the Contract all amounts owing to the Buyer to the Seller shall be immediately payable in cash.

8. Delivery

8.1 Delivery of the Goods shall take place and risk in the Goods will pass in accordance with Incoterms, where applicable, otherwise delivery of the Goods shall be made by the Seller tendering bills or other appropriate documents of lading or by delivering the Goods to the place specified in the Buyers orders and/or the Seller’s acceptance as the location to which the Goods are to be delivered by the Seller or if no place of delivery is so specified by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection. Goods despatched by post will be delivered when the Goods are accepted by the post office in the United Kingdom.

8.2 Unless otherwise agreed in writing by the Buyer and the seller shipment and insurance of all Goods ordered f.o.b. or f.a.s will be arranged by the Seller on behalf of the Buyer and all charges shall be paid by the Buyer.

8.3 The Seller shall endeavour to comply with the shipping instructions given by the Buyer with its order for the Goods but the Seller reserves the right to make part shipments and to ship by vessels of the Seller’s choice from any port in the United Kingdom or elsewhere.

8.4 Where the Buyer is to provide a vessel for shipment the Seller shall not be responsible for any charges resulting from failure by the Buyer to give due notice of the vessel’s time of arrival.

8.5 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the Delivery Date upon giving reasonable notice to the Buyer. If the Seller delivers the Goods at any time after the Delivery Date the Seller shall have no liability in respect of such late delivery.

8.6 Where delivery of the Goods is to be made by the Seller in bulk measured by weight, the Seller reserves the right to deliver up to ten per cent more or ten per cent less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.

8.7 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

8.8 If the Buyer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Seller shall be entitled upon giving written notice to the Buyer to store or arrange for the storage of the Goods and then notwithstanding the provision of Clause 10.1 of these Conditions risk in the Goods shall pass to the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay to the Seller all costs and expenses including storage and insurance charges arising from such failure.

8.9 The Seller shall not be liable for any costs incurred for whatever reason after delivery of the Goods is deemed to have taken place. Where Goods are sold inclusive of any or all of the freight, handling, port or insurance charges, any increases in, or in the rates for, such charges arising after the date of the Contract and before the Goods are delivered or arising through deviation to a new port or airport necessarily or at the Buyer’s request or through any delay however caused shall be for the Buyer’s account subject to the absolute discretion of the Seller. Port surcharges and other incidental charges are not included in the freight rate will be for the Buyer’s account.

8.10 Import or customs duty or other official taxes or charges arising from or necessary to enable delivery of the Goods shall be for the Buyer’s account and shall be reimbursed forthwith where necessarily paid by the Seller.

8.11 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in delivery or in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:-

8.11.1 act of God, explosion, flood, tempest, fire or accident;

8.11.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;

8.11.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

8.11.4 import or export regulations or embargoes;

8.11.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);

8.11.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;

8.11.7 power failure or breakdown in machinery.

9. Insurance

9.1 Unless otherwise expressly agreed in writing by the Buyer and the Seller, Goods sold c.i.f. will be insured from time to time the Goods leave the warehouse or place of storage at the commencement of transit, throughout the ordinary course of transit and until:-

9.1.1 delivery to the Buyer’s or other final warehouse or place of storage at the destination named in the Buyer’s order;

9.1.2 delivery to any other warehouse or place of storage whether prior to delivery at the destination named in the Buyer’s order or acknowledgement or order which the Buyer may elect to use either: for storage other than in the ordinary course of transit; or for allocation or distribution;

9.1.3 the expiry of 60 days after completion of discharge over side of the Goods from the overseas vessel at the final port of discharge or on the expiry of 30 days after unloading the Goods insured from an aircraft at the final place of discharge, whichever shall first occur.

9.2 Insurance on Goods sold c.i.f. shall be effected by the Seller on behalf of and in the name of the Buyer and shall be for the c.i.f. value of the Goods plus ten per cent (or such other percentage as may have been agreed in writing between the parties) against all marine and marine war and other marine risks (or air, air war or other air risks where appropriate). All special risks involved in the carriage of the Goods shall be for the Buyer’s account. Claims are payable abroad and are to be made by the Buyer on the overseas agent of the Seller’s insurers.

9.3 All costs arising from the insurance being effected by the Buyer’s request on Goods sold other than c.i.f. shall be for the Buyer’s account.

10. Risk and Property

10.1 Risk of damage to or loss of the Goods shall pass to the Buyer in accordance with the relevant provision of Incoterms or where Incoterms do not for any reason apply:-

10.1.1 in the case of Goods to be delivered at the Seller’s premises, the time when the Seller notifies the Buyer that the Goods are available for collection; or

10.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.

10.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.

10.3 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all money owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

11. Warranties and Liability

11.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be of merchantable quality.

11.2 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.

11.3 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to abnormal conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration of the Goods without the Seller’s approval, or any other act or omission on the part of the Buyer, its employees or agents or any third party.

11.4 The mixing or use of the Goods is beyond the Seller’s control and accordingly all conditions and warranties, statutory or otherwise, as to fitness of the Goods for any particular purpose are expressly excluded.

11.5 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

11.6 No Goods may be returned to the Seller without the prior agreement in writing of the Seller. Subject thereto any Goods returned which the Seller is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection may be replaced free of charge or, at the Seller’s sole discretion the Seller may refund or credit to the Buyer the price of the defective Goods but the Seller shall have not further liability to the Buyer.

11.7 Except as expressly provided in these Conditions, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under statute, or under the express terms of the Contract, for any direct or consequential loss or damage sustained by the Buyer (including, without limitation, loss of profit or indirect or special loss), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer.

11.8 The Buyer shall ensure that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Buyer is in compliance with all applicable statutory and other regulatory requirements and that the storage and handling of the Goods by the Buyer is carried out in accordance with directions given by the Seller or any competent governmental or regulatory authority and the Buyer will indemnify the Seller against any liability loss or damage which the Seller might suffer as a result of the Buyer’s failure to comply with this condition.

12. Buyer’s Default

12.1 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:-

12.1.1 cancel the order or suspend any further deliveries to the Buyer;

12.1.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer);

12.1.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 18.9% per cent per annum above NatWest Bank Plc (or such other bankers as the Seller may notify) base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest); and

12.1.4 where the price is to be paid in a currency other than Sterling charge to the Buyer the reduction in the amount of pounds sterling receivable by the Seller on conversion of the proceeds by the Seller’s bankers as a result of variations in the rate of exchange between the due date and the date of actual payment.

12.2 This Condition applies if:-

12.2.1 the Buyer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract; or

12.2.2 the Buyer becomes subject to an administration order or makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or

12.2.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or

12.2.4 the Buyer ceases, or threatens to cease, to carry on business; or

12.2.5 the Seller reasonably apprehends that any of the events mentioned above is about to concur in relation to the Buyer and notifies the Buyer accordingly.

12.3 If Condition 12.2 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but no paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

13 Confidentiality, Publications and Endorsements

13.1 The Buyer undertakes to the Seller that:-

13.1.1 the Buyer will regard as confidential the Contract and all information obtained by the Buyer relating to the business and/or products of the Seller and will not use or disclose to any third party such information without the Seller’s prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Buyer’s default;

13.1.2 the Buyer will not use or authorise or permit any other person to use any name, trade mark, house mark, emblem or symbol which the Seller is licensed to sue or which is owned by the Seller upon any premises, notepaper, visiting cards, advertisements or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by the Seller and (where appropriate) its licensor;

13.1.3 the Buyer will use all reasonable endeavours to ensure compliance with this condition by its employees, servants and agents. This Condition shall survive the termination of the Contract.

14. General

14.1 When placing the order the Buyer must advise the Seller in writing of any special, legal, administrative or regulatory requirements applying in the territory in which the Buyer is to import, use or sell the Goods as to composition labelling distributors or sale of the Goods and the Buyer must advise the Seller immediately of any change made in such requirements.

14.2 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.

14.3 The Buyer may not assign the benefit of the Contract without the written consent of the Seller. 14.4 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

14.5 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

14.6 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

15. Applicable Law and Jurisdiction

15.1 The Contract shall be governed by the laws of England.

15.2 The Uniform Laws on the International Sale of Goods laid down in the 1980 United Nations Convention shall not apply unless expressly agreed between the parties in writing.

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