GSE - Terms of Sale - 2017

GLOBAL STEEL EXPORTS LIMITED

TERMS AND CONDITIONS

FOR THE

SUPPLY OF GOODS AND SERVICES

Version – January 2017

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The Customer’s attention is particularly drawn to the provisions of clause 13

Version – January 2017

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1.

DEFINITIONS INTERPRETATION

1.1

Definitions. In these Conditions, the following definitions apply: Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Commencement Date: has the meaning set out in clause 2.3.

Conditions: the terms and conditions as amended from time to time in accordance with clause 17.8.

Contract: the contract between the Supplier and the Customer for the supply of Goods and/or services in accordance with these Conditions.

Credit: Has the meaning given in clause 5.15(b) Customer: the company, partnership, firm, business, individual or other entity as shall place an order which is accepted by Global Steel Exports in accordance with, and subject to, the provisions of this agreement.

Deliverables: the deliverables set out in the Order.

Delivery Location: has the meaning set out in clause 5.2.

Delivery Note: the document evidencing delivery provided by the Supplier or the appointed carrier of the relevant Goods to the Customer at the Delivery Location.

Expenses: any out-ofpocket costs incurred by the Supplier in fulfilling an Order, including (without limitation): a) postage, packaging, carriage,

AND

freight and handling charges; b) insurance; c) currency conversion and banking charges applicable to the payment method used; d) value added tax or any other applicable sales tax in the country in which the Supplier is resident; and e) any customs, import or other duties charged in respect of the sale and importation of Products into the country in which the Customer is resident or the Delivery Location is located.

Force Majeure Event: has the meaning given to it in clause 17.1(a).

Goods: the goods (or any part of them) including, but not limited to, hardware, software, equipment or other articles or items as set out in the Order and which shall be provided by Global Steel Exports (subject to and in accordance with this agreement).

Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.

Intellectual Property Rights: all copyright, database rights, topography rights, design rights, trademarks, trade names, utility models, patents, domain

names, compilation rights, marks (and any related goodwill), trade secrets and any other intellectual property rights of a similar nature (whether or not registered) subsisting anywhere in the world 1.2 in or associated with the Deliverables and/or the Goods.

Invoice: an invoice raised by the Supplier in accordance with clause 10.5.

Order: an order for Goods and/or Services submitted by the Customer to the Supplier and accepted by the Supplier in accordance with clause 3.

Order Confirmation: the order confirmation document sent by the Supplier to the Customer agreeing to fulfil the Order, estimating the delivery date and identifying the relevant Order by its Order Reference.

Order Reference: the reference applied to an Order Form by the Supplier on receipt of that Order Form.

Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.

Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.

Supplier: Global Steel Exports Limited, a company registered in England and Wales with company number 5786137 whose registered office is at 2 The Boulevard, Blackmoor Lane, Croxley Business Park, Watford, Hertfordshire, The United Kingdom WD18 8YW. Supplier Materials: has the meaning set out in clause 9.1(g).

Term: the period commencing on the Commencement Date and continuing indefinitely until terminated by either party in accordance with clause 14.

Construction. In these Conditions, unless the context requires otherwise, the following rules apply: (a)

(b)

(c)

(d)

A person includes a natural person, corporate or unincorpora ted body (whether or not having separate legal personality) ; a reference to a party includes its personal representati ves, successors or permitted assigns; a reference to a statute or statutory provision is a reference to it as it is in force for the time being taking account of any amendment , extension, or reenactment and includes any subordinate legislation for the time being in force made under it; any phrase introduced by the terms including, include, in particular or any similar

(e)

expression shall be construed as illustrative and shall not limit the sense of the words 2.5 preceding those terms; and a reference to writing or written includes faxes and emails.

2.

BASIS OF CONTRACT

2.1

The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.

These Conditions set out the terms and conditions under which the Supplier shall supply the Goods and/or Services to the Customer and apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate in any Order, Specification or any other similar document, or which are implied by trade, custom, practice or course of dealing.

The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order pursuant to clauses 3.2 and 3.4, or the date at which Global Steel Exports first supplies goods and/or services in connection with an order placed by the customer, at which point and on which date the Contract shall come into existence (Commencement Date).

The Contract constitutes the entire agreement between the parties.

The Customer

2.2

2.3

2.4

Version – January 2017

2.6

2.7

2.8

acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

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

Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.

All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

These Conditions shall apply to all future arrangements between the parties for the Supplier to supply Goods and/or Services and the Customer to buy Goods and/or Services unless the parties agree otherwise in writing.

3.

ORDER PROCESS

3.1

When the Customer wishes to place an order for Goods and/or Services, it shall send an Order Form to the Supplier or submit orally an order, provided that an order made orally must be confirmed by an Order Form (bearing the additional words “confirmation of oral order”) received by the

3.2

3.3

3.4

3.5

3.6

Supplier within three days from the date the Customer gave the oral order.

An Order shall be treated as an offer by the Customer to contract with the Supplier, but shall not be binding on the Customer until accepted by the Supplier in accordance with clause 3.4. The Supplier may, at its sole discretion, accept amendments to an Order after acceptance. Orders which are accepted by the Supplier shall be binding on the Customer and may only be cancelled in accordance with these Conditions.

All Orders placed by the Customer are subject to the availability of the Goods and/or the Supplier’s capability to perform the Services.

The Supplier shall apply an Order Reference to each Order received from the Customer and inform the Customer of the Order Reference as soon as reasonably practicable. Each party shall use the Order Reference to identify each Order from the time at which the Order Reference is known to it.

The Supplier shall, at its sole discretion, accept the Order using an Order Confirmation and such Order Confirmation shall be treated as acceptance of the Customer’s Order.

The Supplier shall arrange delivery of the Goods and/or performance of the Services in accordance with the Customer’s instructions on the Order Form (where practicable) and the provisions of these Conditions, provided that the Customer shall be liable to pay for all reasonable Expenses incurred by the Supplier in complying with such instructions.

Such Expenses shall be

3.7

included on the Invoice for the relevant Goods.

Requests by a customer for cancellation of any order or for rescheduling of deliveries will only be considered by the supplier if made in writing, and shall be subject to written acceptance by the supplier.

Where the supplier agrees to cancel or reschedule an order at the request of the customer, the customer agrees to indemnify the supplier against all loss, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arriving out of the order and such cancellation or rescheduling.

4.

GOODS

4.1

The Goods are described in the Goods Specification.

The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Goods Specification.

This clause 4.2 shall survive termination of the Contract.

The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.

The Supplier shall not be liable in respect of any loss or damage caused by or resulting

4.2

4.3

4.4

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from any variation for whatever reason in the manufacturer’s specification or technical data and shall not be responsible for any or damage resulting from curtailment or cessation of supply following such 5.5 variation. The Supplier will use reasonable endeavours to advise the Customer of any such impending variation upon receiving notice thereof from the relevant 5.6 manufacturer.

5.

DELIVERY AND QUALITY OF GOODS

5.1

The Supplier shall ensure that each delivery of the goods is accompanied by a Delivery Note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be 5.7 delivered.

Delivery of the Goods shall take place at the location set out in the Order (Delivery Location). Acceptance of any change to the Delivery Location requested by the Customer shall be at the Supplier’s sole discretion and the Customer shall be liable for any additional Expenses incurred by the Supplier as a result of such change.

Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.

Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence.

The Supplier shall not be liable for any delay in delivery of the Goods

5.2

5.3

5.4

Version – January 2017

that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

The Goods may be delivered by the Supplier in advance of the quoted delivery date on the Supplier giving reasonable notice to the Customer.

If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.

The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, the Customer's failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.

If the Customer fails to accept or take delivery of the Goods within 5 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods: (a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the first Business Day following the day on which the Supplier

5.8

5.9

5.10

5.11

notified the Customer that the Goods were ready; and (b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

If 15 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted or taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including 10 per cent more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.

The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately.

Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

The Supplier Warrants that on delivery the

5.12

5.13

5.14

5.15

Goods shall conform in all material respects with the Goods Specification.

The Customer shall, within seven days of the arrival of each delivery of the Goods at the Delivery Location, give written notice of rejection to the Supplier on account of any defect by reason of which the Customer alleges that the Goods delivered do not comply with the Warranty and which was apparent on reasonable inspection.

If the Customer fails to give notice as specified in clause 5.12 then, except in respect of any defect which is not one which would be apparent on reasonable inspection, the Goods shall conclusively be presumed to comply with the Warranty and, accordingly, the Customer shall be deemed to have accepted delivery of the Goods in question and the Supplier shall have no liability to the Customer with respect to that delivery (except in relation to liability for latent defects).

If the Customer alleges that any of the Goods are defective, it shall, if so requested by the Supplier, return the relevant Goods (unaltered and unrepaired) to the Supplier for inspection as soon as possible and at its own risk and expense.

If the Customer rejects any delivery of the Goods which do not comply with the Warranty, the Supplier shall, within fourteen days of the Supplier accepting that the Goods do not comply with the Warranty: (a) supply replacement Goods which comply with the Warranty, in which

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5.16

event the Supplier shall be deemed not to be in breach of these Conditions or have any liability to the Customer for the rejected Goods; or (b) notify the Customer that it is unable to supply replacement Goods, in which case the Customer shall be entitled to obtain from any other person such quantity of the Products only as the Supplier has been unable to supply and the Supplier shall grant to the Customer a credit equal to the value of the Goods which the Supplier agrees do not comply with the Warranty (Credit).

The Supplier shall not be liable for the Goods' failure to comply with the Warranty if: (a) the Customer makes any further use of such Goods after giving a notice in 5.17 accordance with clause 5.12; (b) the defect arises because the Customer failed to

Version – January 2017

follow the Supplier's oral or written instructions as to the storage, installation, commissioni ng, use or maintenance of the Goods or (if there are none) good trade practice; (c) the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer; (d) the Customer alters or repairs such Goods without the written consent of the Supplier; (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; (f) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the Warranty set out in clause 5.11.

5.18

5.19

The Supplier’s reasonable decision as to whether the Goods comply with the Specification shall be final.

The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 5.15(a).

6.

IMPORT AND EXPORT LICENCES

6.1

The Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Supplier, the Customer shall make those licences and consents available to the Supplier prior to the relevant shipment.

7.

TITLE AND RISK

7.1

The risk in the Goods shall pass to the Customer on completion of delivery at the Delivery Location. Or, if the customer wrongfully fails to take delivery of the goods, at the time when the supplier has tendered delivery of the goods.

Notwithstanding clause 7.1, title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for: (a) the Goods; and (b) any other goods that the Supplier has supplied to the Customer in respect of which payment has become due.

Until title to the Goods has passed to the Customer, the Customer 7.4 shall: (a) hold the Goods on a fiduciary basis as the

7.2

7.3

Supplier's bailee; (b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property; (c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery; (e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(l); and (f) give the Supplier such information relating to the Goods as the Supplier may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.

If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in

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clause 14.1(b) to clause 14.1(l), or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

8.

SUPPLY OF SERVICES

8.1

The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.

The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Service Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

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

The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

8.2

8.3

8.4

9.

CUSTOMER’S OBLIGATIONS

9.1

The Customer shall:

Version – January 2017

(a)

(b)

(c)

(d)

(e)

(f)

ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate; co-operate with the Supplier in all matters relating to the Services; provide the Supplier, its employees, agents, consultants and subcontracto rs, with access to the Customer's premises, office accommodat ion and other facilities as reasonably required by the Supplier to provide the Services; provide the Supplier with such information and materials as the Supplier 9.2 may reasonably require to supply the Services, and ensure that such information is accurate in all material respects; prepare the Customer's premises for the supply of the Services; obtain and maintain all necessary licences, permissions and consents which may be required for the

Services before the date on which the Services are to start; and (g) keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation .

If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default): (a) the Supplier shall without limiting its other rights or remedies have the right to suspend 10. performance of the 10.1 Services until the Customer remedies the

(b)

(c)

CHARGES PAYMENT

Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations; the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 9.2; and the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

AND

The price for Goods as set out in the Supplier’s catalogues, price lists and other advertising literature or other

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10.2

10.3

10.4

materials whatsoever (as provided by the Supplier to the Customer from time to time) are indented only as an indication to the price and range of Goods and/or Services available. No prices, descriptions or other particulars contained in such materials shall be binding on the Supplier.

All quoted listed prices for Goods are based on the cost to the Supplier in supplying the Goods to the Customer (i.e. the manufacturer’s list price). If, following acceptance by the Supplier of the Order, and prior to the delivery of the Goods to the Delivery Location, the cost of such Goods to the Supplier shall increase, the Supplier shall be entitled to give written notice to the Customer of the increased price of such Goods, and the Customer shall have the right to cancel its Order for such Goods by giving written notice to the Supplier within 5 Days. If the Customer does not cancel its Order within such period, the original Order shall continue to be binding on the Customer varied as to the price of the applicable Goods in accordance with the revised price so notified to the Customer (unless an alternative price is agreed by the Supplier).

The Supplier’s charges for Services will be set out within the applicable Service Specification.

The Supplier reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to: (i) an y fac tor

Version – January 2017

(ii)

be yo nd the co ntr ol of the Su ppl ier (in clu din g for eig n exc ha ng e flu ctu ati ons , inc rea ses in tax es an d dut ies, an d inc rea ses in lab our , ma teri als an d oth er ma nuf act uri ng cos ts); an y req ues t by the Cu

(iii)

sto me r to cha ng e the del ive ry dat e(s ), qu ant itie s or typ es of Go ods ord ere d, or the Go ods Sp eci fic 10.5 ati on; or an y del ay cau sed by an 10.6 y ins tru cti ons of the Cu sto me r in res pec t of the Go ods or fail ure of the 10.7 Cu sto me

r to giv e the Su ppl ier ade qu ate or acc ura te inf or ma tio n or ins tru cti ons in res pec t of the Go ods .

In respect of Goods, the Supplier shall invoice the Customer on dispatch of the order or at the point when goods are made available for collection. In respect of Services, the Supplier shall invoice the Customer monthly in advance.

The Customer shall pay each invoice submitted by the Supplier: (a) within 30 days of the date of the invoice unless otherwise stated in the Order Form; and (b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence.

In respect of Corporate Customers only, and notwithstanding clauses 10.5 and 10.6 above, the

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10.8

10.9

10.10

Supplier may suspend deliveries of Goods and/or the performance of Services and require alternative payment terms and the Supplier’s sole discretion the event that the Customer shall exceed any credit terms notified by the Supplier to the Customer from time to time.

All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of 8% 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.

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 the Supplier in order to justify withholding

Version – January 2017

payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

11.

INTELLECTUAL PROPERTY RIGHTS

11.1

All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.

The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a 12.2 written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.

All Supplier Materials are the exclusive property of the Supplier.

Upon the termination (howsoever caused) or expiry of these Conditions each party shall return to the other all licensed and/or confidential materials, and all copies thereof in whole or part, or if requested by the other party shall destroy the said materials and certify in writing that those materials have been destroyed.

CONFIDENTIALITY 12.3 A party (Receiving Party) shall keep in strict confidence all technical or commercial 12.4 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

11.2

11.3 11.4

12.

12.1

the Disclosing Party's 13. 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 13.1 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. This clause 12 shall survive termination of the Contract.

The provisions of this clause shall cease to apply to: (i) information that has come into the public domain other than by breach of the clause or any other duty of confidence. (ii) Information that is obtained from a third party without breach of this clause or any other duty of confidence; and (iii) information that is required to be disclosed by a regulatory or government body or court of competent jurisdiction with power to compel the disclosure.

Each party will comply with its obligations pursuant to the Data Protection Act 1998.

By entering into this agreement, the customer 13.2 gives its informed consent to the supplier collecting its personal information from time to time during the course of business, which shall be processed in accordance with the suppliers Privacy Policy.

LIMITATION LIABILITY:

OF

THE

CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE Nothing in these Conditions shall limit or exclude the Supplier's liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontracto rs; (b) fraud or fraudulent misrepresent ation; (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); (d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or (e) defective products under the Consumer Protection Act 1987.

Subject to clause 13.1: (a) the Supplier shall under no circumstance s whatever be liable to the Customer, whether in contract, tort (including negligence), breach of

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13.3

13.4

statutory duty, or otherwise, for any loss of profit, or any indirect or consequentia l loss arising under or in connection with the Contract; and (b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstance s exceed ÂŁ5,000,000 (FIVE MILLION POUNDS).

The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

This clause 13 shall survive termination of the Contract

14.

TERMINATION

14.1

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: (a) the other party commits a material breach of its obligations

Version – January 2017

(b)

(c)

under this Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing of the breach; the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; the other party commences negotiations with all or any class of

(d)

(e)

its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamatio n of that other party with one or more other companies or the solvent reconstructio n of that other party; a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamatio n of the other party with one or more other companies or the solvent reconstructio n of that other party; the other party (being an individual) is the subject of a

(f)

(g)

(h)

(i)

bankruptcy petition or order; a creditor or encumbrance r of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company); a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrativ e receiver; a person becomes entitled to appoint a

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14.2

receiver over the assets of the other party or a receiver is appointed over the assets of the other party; (j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1(b) to clause 14.1(i) (inclusive); (k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all 14.3 or substantially the whole of its business; or (l) the other party (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.

Without limiting its other rights or remedies, the Supplier may terminate the Contract:

Version – January 2017

(a)

by giving the Customer one months' written notice; or (b) with immediate effect by giving written notice to the 15.

Customer if the Customer fails to pay any amount due under this Contract on the due date for payment; or (c) With immediate effect by giving written notice in the event that there is any change of control of the Customer, or any change in the nature of the Customer’s business.

Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if: (a) the Customer fails to make pay any amount due under this Contract on the due date for payment; or (b) the Customer becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(l), or

the Supplier reasonably believes that the Customer is about to become subject to any of them.

CONSEQUENCES TERMINATION

OF

On termination of the Contract for any reason: (a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; (b) the Customer shall return all of the 16.

Supplier 16.1 Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and 16.2 take possession of them.

Until they have been returned, the Customer shall be

(c)

(d)

solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; the accrued rights and remedies of the parties as at 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 clauses which expressly or by implication have effect after termination shall continue in full force and effect.

DISPUTES Subject as may be provided elsewhere in this Contract, all disputes, differences or questions arising in relation to the Contract shall be referred in the first instance to a Board Member of each party who shall meet together and attempt to settle the dispute between themselves (acting in good faith) within one calendar month.

If the Board Members fail to resolve the dispute, then the Supplier may refer the dispute to an appropriate court or tribunal, or may (at its discretion) opt for mediation under clause

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16.3

16.9 (b) (in which case such an election shall bind the parties until a conclusion is made or the mediator rejects the case).

Any reference to mediation shall be made in accordance with the procedures of the Centre for Effective Dispute Resolution (CEDR). The mediation shall be conducted by a single mediator appointed by the parties or, if the parties are unable to agree on the identity of the mediator within fourteen (14) days after the date of the request that the dispute be resolved by mediation, or if the person appointed is unable or unwilling to act, the mediator shall be appointed by CEDR on the application of either party. The mediation shall be conducted in English at the offices of the Supplier. Mediation is without prejudice to the rights of the parties to the injunctive relief or to the rights of the parties in any future proceedings.

17.

GENERAL

17.1

Force majeure: (a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility

Version – January 2017

(b)

(c)

service or 17.2 transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmenta l order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontracto rs.

The Supplier 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 a Force Majeure Event.

If the Force Majeure Event prevents the Supplier from 17.3 providing any of the Services and/or Goods for more than 6 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

Assignment and subcontracting: (a) The Supplier 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. (b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

Notices: (a) Any notice or other communicati on required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid firstclass post, recorded delivery or by

(b)

(c)

commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.

Any notice or other communicati on shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid firstclass post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.

This clause 17.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall not include emails and for the

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17.4

17.5

avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.

Waiver and cumulative remedies: (a) 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. No 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. 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. (b) Unless specifically 17.6 provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.

Severance:

Version – January 2017

(a)

If a court or 17.7 any other competent authority finds that any 17.8 provision of the Contract (or part of any provision) is invalid, illegal or unenforceabl e, that provision or 17.9 partprovision shall, to the extent required, be deemed deleted, and the validity and enforceabilit y of the other provisions of the Contract shall not be affected. (b) If any invalid, unenforceabl e 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.

No partnership: 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.

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

Variation: 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 the Supplier.

Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including noncontractual 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. (a) For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to the Contract.

The international rules for the interpretatio n of trade terms prepared by the International Chamber of Commerce (Incoterms) shall apply but where they conflict with this Contract, this Contract shall prevail. (b) Nothing in clause 17.9 shall limit the right of the Supplier to take

(c)

proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the Supplier from taking proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.

It is the Customer's obligation to acquaint itself and to comply with all applicable requirements and restrictions imposed by law or by governmenta l and other authorities or corporations relating to the possession, use, import, export, or resale of the Goods. It is the Customer's obligation to ensure that no Goods are exported or imported in violation of the laws of any jurisdiction into or through which the Goods are transported during the course of reaching the

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17.10

Delivery Location.

Where necessary, the Customer shall inform the Supplier at a reasonable time before delivery of any documents which it is necessary for the Supplier to provide in order to allow export of the Goods in compliance with the laws of any relevant jurisdiction.

Anti-Bribery: The Customer shall (a) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anticorruption including but not limited to the Bribery Act 2010 (Relevant Requiremen ts); (b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; (c) have and shall

Version – January 2017

(d)

(e)

maintain in employees at place the date of throughout this the Term its agreement); own policies Breach of this clause and 17.10 shall be procedures, deemed a material including but breach under clause not limited 14. For the purpose to adequate of this clause 17.10 procedures the meaning of under the adequate procedures Bribery Act and foreign public 2010, to official and whether ensure a person is compliance associated with with the another person shall Relevant be determined in Requirement accordance with s and will section 7(2) of the enforce them Bribery Act 2010 where (and any guidance appropriate; issued under section 9 of that Act), promptly sections 6(5) and report to the 6(6) of that Act and Supplier any section 8 of that Act request or respectively. For the demand for purposes of this any undue clause 17.10 a financial or person associated other with the Supplier advantage of includes but is not any kind limited to any received by subcontractor of the the Customer.

Customer in connection with the performance ____________________ of this ______________ Contract; Customer Name immediately notify the Supplier (in ____________________ writing) if a ______________ foreign Signed for and on public behalf of the Customer official becomes an officer or Dated: employee of the Customer or acquires a direct or indirect interest in the Customer and the Customer warrants that it has no foreign public officials as direct or indirect owners, officers or

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