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In these terms and conditions of sale (the “Terms and Conditions”), the ”Seller” is the company shown on the order (being Vacform Group Ltd or one of its subsidiary companies) and the “Buyer” is the company or person named on the order who is placing the order.

The Seller and the Buyer may be collectively referred to as the “Parties” (and each a “Party”) in these Terms and Conditions.

Therefore in consideration of the price to be paid by the Buyer for the goods or services the Seller will provide the Parties agree as follows:

1. CONDITIONS OF ACCEPTANCE:

1.1 Any written or oral purchase order received from Buyer shall be construed as a written acceptance of the Seller’s offer to sell subject to these Terms and Conditions.

1.2 Seller’s acceptance of the Buyer’s purchase order is expressly conditioned on the Buyer’s acceptance of these Terms and Conditions. Production or delivery time shall only commence upon acceptance of these Terms and Conditions.

1.4 The Buyer’s standard terms of purchase will not be considered a counter offer to these Terms and Conditions. No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, or any other document or communication from the Buyer, shall apply to any purchase order or be incorporated into the contract except by the prior written agreement of a Director of the Seller Company.

1.5 The failure of Seller to object to any provision in any of the Buyer’s terms that conflict with the Seller’s, whether contained on Buyer’s purchase order or otherwise, shall not be construed as a waiver of these Terms and Conditions nor as an acceptance of the Buyer’s term(s).

1.6 These Terms and Conditions may not be varied except by express written agreement of a Director of the Seller Company. No employee, agent or representative of the Seller has capacity to provide the Buyer with any warranty or acceptance any liability that varies from these Terms and Conditions.

1.7 In these Terms and Conditions, “contract” shall mean the contract between the Seller and the Buyer for the sale and purchase of the goods and/or services incorporating the Buyer’s purchase order (subject always to Clause 1.4) and these Terms and Conditions.

2. QUOTATIONS AND PRICES:

2.1 All prices quoted and/or charged by the Seller are based upon these Terms and Conditions and reflect the limitations of liability, performance and obligations contained herein.

2.2 All quotations are made for prompt acceptance and any terms and prices quoted therein are valid for thirty (30) days from the date or quotation unless specifically stated otherwise.

2.3 Where quotation validity has expired any product, service capability or manufacturing capability offered will be subject to prior sale and thereafter pricing is subject to change without notice.

2.4 Where the Seller has not previously provided the Buyer with a quotation the Seller’s price shall be the one that is in effect at the time of shipment, including any escalation formula.

2.5 The Seller shall be entitled to alter its quoted prices, even within any quotation validity period, where the Buyer’s requirements differ from those advised at the time of quotation.

2.6 In the event that the Seller experiences significant changes to raw material or energy costs from the date of quotation or after the date of acceptance of the Buyer’s order due to the effect of matters outside of the Seller’s control the Seller may submit to the Buyer a supplementary price to be applied at the time of invoicing. The Seller and Buyer shall agree the level of supplement, however, should such an agreement not have been reached at the time of invoicing the Seller’s assessment of the supplement shall apply, and the Buyer hereby agrees to pay such supplement.

2.7 All prices quoted are based upon an “ex-works” delivery as defined by the ICC Incoterms 2000 which by reference are deemed incorporated into this agreement.

2.8 Any requirement for traceability of raw materials or products, or any specific tests or documentation required for any routine or special processes, must be identified by the Buyer as soon as possible. Where such requirements are advised after the date of the Seller’s quotation these shall be subject to a cost variation.

3. TAX(ES) & DUTIES:

3.1 Any tax(es) or other charges imposed by law on the sale of the products or the delivery of service(s) shall be paid by the Buyer except where it is specifically required that such payment must be made by Seller; in which case the Buyer agrees to reimburse the Seller for such payment.

3.2 Where applicable any custom duties, consular fees, insurance charges or other similar charges will be paid by Buyer.

4. DELIVERY SCHEDULE:

4.1 Delivery schedules are given as accurately as conditions permit at the time of quotation or order confirmation and the Seller will make every effort to deliver on time. All delivery dates given are ex-works and take no account of shipment whether within the UK or for export.

4.2 The Seller shall not be responsible for any losses or damages incurred by the Buyer, or any third party, due to late delivery.

4.3 In the event of delay Seller shall have the necessary additional time within which to perform its obligations.

4.4 Where required for general scheduling control Seller shall have the right to apportion its production capacity among its customers in such a manner as it may consider reasonable.

4.5 In respect of delay to delivery the appropriate provisions of Clause 17 herein shall apply

4.6 The Seller may produce and deliver, and the Buyer agrees to accept, the products in batches or instalments.

4.7 Seller in its sole discretion shall have right to manufacture the products provided hereunder as far in advance of its estimated shipping schedule and where the Buyer cannot accept such early delivery the Seller shall undertake to securely store the Products. Nevertheless, in the event that the Buyer cannot accept such early delivery, the Seller shall be entitled to issue its invoice for the products and the Buyer agrees to pay such invoice in pursuant to Clause 6 herein.

4.8 If Buyer requires drawings, procedures, standards or materials for approval or review then the Seller’s delivery schedule shall be calculated from the time the Buyer’s final approval is received by Seller.

4.9 Any hold points, witness points or the need for inspection by Buyer’s representatives must be identified by Buyer at the time of quotation and/or order placement in order that any effect on price and/or delivery schedules can be taken into account. Additional inspection or testing required by Buyer affecting the production sequence will be considered a variation and it is agreed that prices and delivery dates may be amended accordingly.

4.10 Where the Seller’s ability to deliver the products is delayed due to and event or action caused by the Buyer the Seller shall be entitled to invoice for the products and the Buyer agrees to pay in accordance with clause 6 herein.

4.11 Where the Buyer is required to provide Seller with free issue or Buyer property items, or, where the Buyer has arranged for third party suppliers to provide items needed for assembly onto or into the Seller’s products either by the Seller or any third parties, then, in respect of any delays to schedule or damage to Seller’s equipment the Buyer shall accept the Seller’s revised delivery date and reimburse any direct costs the Seller may incur.

5. MINIMUM ORDER VALUE:

5.1 The Seller’s minimum order value is £250. Where the Buyer’s purchase order is for products or services valued at less than this minimum the Seller shall either deliver products up to the minimum order value or deliver the quantity of goods or services ordered by the Buyer but invoice the minimum order value which the Buyer hereby agrees to pay.

6. INVOICING & TERMS OF PAYMENT:

6.1 The Seller shall be entitled to invoice for the products or services when completed to the Seller’s satisfaction. In the event of phased or batched deliveries of the products the Seller’s entitlement to invoice shall commence on the Seller’s completion of the phase or batch.

6.2 Cheques or money orders shall be made payable to the Seller as identified upon the sales order applicable to these Terms and Conditions. Only the Seller’s receipt issued upon its letterhead shall be considered as valid proof of payment by the Buyer.

6.3 Terms of payment are 30 days from date of invoice unless otherwise stated in the quotation or Seller’s order acknowledgement. Time is of the essence for payment.

6.4 Without prejudice to any other right or remedy that the Seller may have, if the Buyer fails to pay the Seller on the due date:

a. Any trade discounts provided for within the price shall be dis-applied; and,

b. The Buyer will pay interest on the overdue amount at the rate of 4% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount; and,

c. The Seller may exercise a lien over any property of the Buyer in its possession, in accordance with Clause 16.1;

d. The Seller may exercise a lien over any unpaid goods in accordance with Clause 14.4; and

e. The Seller shall be entitled to payment, on demand, for all legal and other professional costs incurred by the Seller in the enforcement of its rights under this Clause 6.

6.5 The Buyer shall pay all amounts due under the contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer, its subsidiaries or affiliates against any amount payable by the Seller to the Buyer.

7. SUSPENSION, TERMINATION AND RETURNS:

7.1 Where the Buyer is in default of its obligations within these Terms and Conditions the Seller may suspend production of the product or delivery of the service(s). In the event that suspension occurs the Seller may:

a. Place completed products into storage at the Buyer’s expense and invoice for those products; or,

b. Elect to complete the Buyer’s purchase order, place the product into storage and invoice the Buyer for the price of the products; or,

c. In the event suspension lasts longer than 90 days consider the contract terminated and issue an invoice for price and costs pursuant to clause 7.3 below.

7.2 Without prejudice to Clause 7.1.c, the contract may be terminated:

i. For the convenience of the Buyer only with Seller’s prior written consent; or

ii. Due to the fundamental breach of these Terms and Condition by the Seller subject to the Seller being notified in writing of the breach and a failing to remedy such breach within ninety (90) days of notification.

iii. Due to the fundamental breach of these Terms and Conditions by the Buyer where the Buyer has failed to remedy such breach within thirty (30) days of notification to do so.

iv. Where the Buyer:

a) takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

b) suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

c) in the Seller’s opinion is, or is likely to become, incapable of fulfilling its obligations under the contract due to a deterioration in its financial position.

7.3 Where termination occurs pursuant to 7.1.c, 7.2.i., 7.2.iii or 7.2.iv then, without prejudice to any other right or remedy that the Seller may have (whether under Clause 6 or otherwise), the Buyer shall pay the Seller:

a. 100% of the sales price of the cancelled product where complete; or,

b. Where product is not complete the amount of the sales price equal to the percentage complete the cancelled product; and

c. A cancellation fee of 40% of the cancelled product sales price by way of Seller’s compensation for loss of bargain.

7.4 Where termination occurs pursuant to 7.2.ii. Seller’s liability in damages shall not exceed the lesser of either the sales order value or the sales price of the cancelled product.

7.5 No goods will be accepted for refund. Subject to prior written agreement from a Director of the Seller’s company product returns may be accepted for credit against future supply.

8.5 Termination of the contract shall not affect any of the Parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the contract that existed at or before the date of termination.

8. WARRANTIES:

8.1 In this Clause 8, “Warranty Period” shall have the following meaning:

8.1.1 In respect of goods/products, a period equal to the earlier of (a) 12 months from the date of despatch or (b) 30 days after the product is converted or incorporated by the Buyer into its product(s) or process(es) as disclosed to the Seller at the time the products are ordered.

8.1.2 In respect of services, a period equal to five (5) days from the date of completion of performance of the services.

8.2 The Seller warrants that, for the Warranty Period (subject always to Clauses 8.6, 8.7 and 8.8):

8.2.1 goods/products shall conform in all material respects to the Seller’s specification;

8.2.2 goods/products shall be free from material defects in design, material and workmanship;

8.2.3 goods/products shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and

8.2.4 services shall be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13;

8.3 The Buyer warrants that it has provided the Seller with all relevant, full and accurate information as to the Buyer’s business and needs.

8.4 The Seller shall, at its option, correct, repair, remedy, re-perform or refund the good or services that do not comply with the warranty at Clause 8.2, provided that the Buyer:

8.4.1 serves a written notice on the Seller not later than five (5) working days from delivery or performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from delivery or performance in the case of latent defects;

8.4.2 such notice specifies that some or all of the goods or services do not comply with Clause 8.2 and identifying in sufficient detail the nature and extent of the defects; and

8.4.3 gives the Seller a reasonable opportunity to examine the claim of the defective goods or services.

8.5 The provisions of these Terms and Conditions shall apply to any goods or services that are corrected, repaired, remedied or re-performed with effect from delivery of goods or performance of services.

8.6 The Seller will not be responsible for failure of any goods that have been in any way tampered with or altered by anyone other than an authorised representative of Seller. This limitation also applies to failures due to lack of compliance with any recommended handling or maintenance procedures, or in respect of any goods that have been repaired or altered, by a party other than Seller, in such a way as to adversely affect the properties, use or operation of the goods.

8.7 In the case of products not wholly of the Seller’s manufacture, the Seller’s liability shall be limited to the extent of its recovery from the manufacturer of such products or parts under its liability to Seller.

8.8 Except as set out in this Clause 8:

8.8.1 the Seller gives no warranty and makes no representations in relation to the goods or services; and

8.8.2 shall have no liability for their failure to comply with the warranty in Clause 8.2,

and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.

9. TECHNICAL DATA:

9.1 All drawings, descriptive materials, price lists, advertisements relied upon or referenced in any tender or other form of offer for the Seller’s supply of the product(s) or service(s) are approximate and intended only to give a general indication as to the product or service and are not incorporated into the contract between the Seller and Buyer under the applicable sales order.

9.2 Where the Seller provides its technical data to the Buyer for approval then only that data shall be deemed incorporated into the Seller’s performance obligations under these Terms and Conditions.

10. INTELLECTUAL PROPERTY:

10.1 All technical, process, material details, commercial ideas together with drawings, programmes, tooling solutions and any other data provided by the Seller is considered the Intellectual Property of the Seller as defined within the Copyright, Designs and Patents Act 1988.

10.2 The Buyer hereby warrants to protect the Seller’s Intellectual Property and to provide and indemnity in favour of the Seller against unauthorised disclosure of such Intellectual Property.

10.3 However, it is agreed that the Buyer’s obligations shall not apply where it can be shown that the Seller’s data was in the public domain at the time of receipt by the Buyer or was provided to the Buyer with an express permission for disclosure to nominated 3rd parties.

11. SELLER’S RIGHT TO SUBSTITUTE AND SUB-CONTRACT:

11.1 Seller reserves the right to furnish commercially equivalent or better substitutes for materials used or to subcontract the Buyer’s order or portions thereof as Seller deems necessary.

11.2 Seller expressly reserves the right to change or modify the design and construction of any product in due course of Seller’s manufacturing procedure, without incurring any obligation or liability to furnish or install such changes, modifications or improvement to products previously or subsequently sold.

12. DATA, INFORMATION AND SERVICE:

12.1 Upon request, and unless expressly stated as being included in the price, the Seller will provide at extra cost technical data, information or assistance regarding its products and its use.

12.2 Notwithstanding clause 12.1 or any other provision within these Terms and Conditions, any such information, service or assistance provided, whether with or without charge, shall be advisory only and the Seller will not assume any liability for any acts or omissions in respect of the provision of such information, service or assistance or Buyer’s use or reliance upon the same.

13. INSPECTION:

13.1 Unless otherwise agreed in writing any inspection or acceptance of the product must be made at Seller’s facility and shall be considered conclusive and final in all respects.

13.2 Buyer’s representatives may inspect at Seller’s facility during normal working hours in such manner as will not interfere with Seller’s ongoing operations.

14. PROPERTY TITLE, RISK AND RETENTION OF TITLE:

14.1 Title in the products shall pass to the Buyer upon receipt of full payment by the Seller. Where payment is made progressively as the work is completed then title to the products sold hereunder shall pass to the Buyer in the same percentage as payments received by the Seller. Until full payment for completed product is received title shall remain vested in the Seller.

14.2 Where the Buyer is acting as a re-seller, agent or representative of the Seller the title in the products shall only pass on receipt by the Seller of full payment. In such a case the Buyer shall ensure that the provisions of this Clause are passed on to its customer and shall ensure that any money it receives in payment for the product is immediately paid to the Seller.

14.3 In all other cases title to the products sold hereunder shall pass to the Buyer on receipt of full payment by the Seller.

14.4 The Seller shall be entitled to withhold title or impose a lien on the products supplied under these Terms and Conditions where the Buyer, its subsidiaries or affiliates, are delayed in paying the Seller.

14.5 Unless the Seller has expressly agreed to accept risk for a longer period of time the risk in the products shall pass to the Buyer on despatch from the Seller’s premises.

14.6 Where requested by Seller, the Buyer shall sign or provide certification that verifies what percentage of title and ownership has passed to the Buyer.

14.7 Where any of the circumstances in Clause 7.2.iv arises, or is reasonably likely to arise, the Seller reserves the following rights in respect of products in the possession of the Buyer where title to those products remains vested in the Seller:

14.7.1 to require the Buyer to deliver up all such products in its possession that have not been resold, or irrevocably incorporated into another product; and

14.7.2 if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the products are stored in order to recover them.

15. TRANSPORTATION CHARGES, ALLOWANCES, CLAIMS:

15.1 Delivery terms, unless agreed to the contrary in writing between the parties, are “ex-works” as defined under the ICC Incoterms 2000 as incorporated herein.

15.2 No freight costs are provided for within the sales price unless stated within Seller’s quotation or shown within Seller’s sales order acknowledgement.

15.3 Where Seller’s sales order acknowledgement includes a price for transportation Seller reserves the right to designate the common carrier and to ship in the most economical manner.

15.4 Where Seller’s quoted sales price includes for transportation no deduction will be made in lieu thereof whether Buyer accepts shipment at plant, warehouse, freight station or otherwise supplies its own transportation.

15.5 Buyer assumes risk of loss upon delivery to the carrier, regardless of who pays shipping costs.

15.6 Seller will take all reasonable care to pack and prepare all shipments so that they will not break or deteriorate in transit, but does not guarantee against such damage.

15.7 Unless expressly instructed by the Buyer, Seller will not insure shipments against damage or loss in transit. However, when such instructions are received, Seller will place insurance as nearly as possible in accordance with Buyer’s instructions but in such a case Seller acts only in the capacity of an agent between the insurance company and the Buyer and assumes no liability therefore.

15.8 Any claims for shipping loss, breakage or damage (obvious or concealed) are Buyers responsibility and should be made to the carrier. All claims regarding shortages must be made within three (3) days from receipt of shipment and must be accompanied by the packing list(s) covering the shipment.

16 TOOLING & BUYER’S PROPERTY:

16.1 Where the Buyer provides the Seller with its property for the purpose of assisting or allowing the Seller to produce the product the Seller undertakes to keep such property safe and secure. On completion of the sales order the Seller shall return the Buyer’s property with the final delivery of the product provided that, where the Buyer is in breach of its payment obligations under Clause 6, the Seller may exercise a lien over such property until all of the Seller’s claims for payment have been satisfied in full

16.2 The Seller shall inspect the Buyer’s property on receipt and advise the Buyer of any visible damage to the property. Should damage be visible the Seller shall notify the Buyer and provide its suggestion and price for repair – either by Seller or sub-contractor. The Seller will undertake such repair on receipt of the Buyer’s instruction and acceptance. The Seller’s delivery date shall be adjusted accordingly.

16.3 If during use by the Seller damage or defect in the Buyer’s property is discovered which was not apparent or could not have been reasonably detected during visual inspection the Seller shall notify the Buyer and provide its suggestion and price for repair – either by Seller or sub-contractor. The Seller will undertake such repair on receipt of the Buyer’s instruction and acceptance The Seller’s delivery date shall be adjusted accordingly

16.4 The Seller shall not be responsible for normal wear and tear of the Buyer’s property caused by its use in the type of manufacturing process undertaken by the Seller and which the Buyer has made itself aware of at the time of ordering the products.

16.5 Title in the Buyer’s property whilst in the care of the Seller shall remain with the Buyer. Risk shall be with the Seller to the extent insurable. Seller shall not be responsible for damage or loss caused by fire, flood, 3rd party damage or theft except where the Buyer and Seller agree such perils should be specifically insured. The cost of such insurance shall be to the Buyer’s account.

16.6 Where the Seller is required to store the Buyer’s property the Seller will take all reasonable steps to protect the property from damage or loss. Where the Buyer requires that the Seller implement a risk management programme for its products this will be undertaken as closely as possible to the Buyer’s requirement. Any incurred costs being to the Buyer’s account.

16.7 Where the Seller has had custody of the Buyer’s property for 12 months, and where such property has not been used by the Seller in the supply of product(s) to the Buyer then the Seller may levy a storage charge of £50 per item per annum. This charge shall cover physical storage and does not cover risk. A separate all inclusive storage fees will be provided to the Buyer on request.

16.8 Where the Seller is contracted to design and/or supply tooling for the purpose of manufacturing products for the Buyer the ownership of such tooling shall remain with the Seller until such time as the Buyer has fully paid for the tooling pursuant to the Buyer’s quoted terms.

16.9 In respect of tooling supplied by the Seller, risk shall remain with the Seller while ever the tooling is within its care, custody or control. Any maintenance requirements (that are not occasioned by the Seller’s lack of due care) shall be chargeable to the Buyer at a rate to be agreed between the parties prior to work commencing. Delay in production occasioned by the Parties reaching agreement on maintenance costs shall not be considered as a responsibility of the Seller and schedules shall be adjusted accordingly without penalty.

17. LIMITATION OF LIABILITY:

17.1 Nothing in these Terms and Conditions shall limit or exclude the Seller’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b) fraud or fraudulent misrepresentation;

(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

(d) defective products under the Consumer Protection Act 1987; or

(e) any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.

17.2 Subject to Clause 17.1:

(a) the Seller shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any special, consequential or indirect loss, costs or damages. Such excluded loss, costs or damages shall include, but not be limited to, loss of profit, loss of use, lost operation time, lost opportunity, loss of profit, production stand-by time or any losses, costs or damages similar in nature; and

(b) the Seller’s total liability to the Buyer 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 circumstances exceed the price of the purchase order in respect of which the liability arises.

18. FORCE MAJEURE:

18.1 Force Majeure means an occurrence beyond the control of the party affected, provided that such party could not have reasonably foreseen such occurrence at the time of entering into the contract and could not have reasonably avoided or overcome it or its consequences. For the avoidance of doubt, inability to pay is not Force Majeure.

18.2 Neither party shall be considered in breach of its obligations hereunder where performance is prevented or delayed by Force Majeure.

19. SURVIVABILITY, SEVERABILITY & WAIVER:

19.1 The provisions of clauses 1, 3, 6, 8, 10, 14, 16, 17, 18, 20 & 21 shall survive the expiry of the term of the contract created by the sales order between the Seller and the Buyer and these Terms and Conditions.

19.2 The invalidity or un-enforceability of one or more of the clauses within these Terms and Conditions shall not affect the validity or enforceability of the remainder which shall remain in force and effect. Any invalid or un-enforceable clauses shall be amended to make them operable whereupon they shall be deemed incorporated as revised into these Terms and Conditions.

19.3 Failure of Seller to insist in any one or more instances upon the performance of any of the terms and conditions of the contract or failure of Seller to exercise any of its rights hereunder shall not be construed as a waiver of any such term, condition, or right nor shall this effect strict performance and compliance of these terms and conditions.

20 CONSUMER RIGHTS:

20.1 Nothing in these terms is deemed to affect the rights of a Buyer who is a consumer, meaning “an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession” as defined in s2(3) of the Consumer Rights Act 2015.

21 LAW AND DISPUTE RESOLUTION:

21.1 These Terms and Conditions – and the associated supply of product or service - is written, and shall be interpreted, in accordance with English Law. Any disputes that may arise between the Parties shall be settled by Arbitration in accordance with the Arbitration Act 1998. Such Arbitration shall be conducted by the London Chamber of International Arbitration (“LCIA”) pursuant to the LCIA’S rules and regulations in force at that time. A single arbitrator appointed by the LCIA shall conduct any Arbitration. The decision of the said arbitrator shall be final and binding upon the partie.