Terms and Conditions of Sale

The Customer’s attention is drawn in particular to the provisions of clause 14 and clause 7.3. 1.

 

INTERPRETATION 1.1 In these Conditions and the Contract, the following definitions apply:

Sales Order Acknowledgement: has the meaning given in clause 2.3. Alternative Delivery Location: has the meaning given in Clause 6.3.

Business Day: a day (other than a Saturday, Sunday, public holiday, or Christmas shut down day) when banks in London are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 22. Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions, comprising of these Conditions, the Acceptance Notice (and if any) the Specification) which shall come into existence in accordance with Clause 2.3.

Customer: the person or firm who purchases the Goods from the Supplier.

Customer Default: has the meaning given in Clause 5.2.

Damaged Goods: has the meaning given in Clause 7.6(a). Delivery Address: has the meaning given in Clause 6.2.

Delivery Date: has the meaning given in clause 6.5.

Faulty Goods: has the meaning given in Clause 7.4.

Force Majeure Event: has the meaning given in clause 15.

Goods: the goods (or any part of them) set out in the Acceptance Notice.

Incorrectly Ordered Goods: has the meaning given in Clause 7.9.

Incorrectly Supplied Goods: has the meaning given in Clause 7.8.

Order: the Customer’s order for the Goods, as received by the Supplier. Sample Goods: has the meaning given in Clause 12.1.

Specification: any specification for the Goods, including any related plans and drawings, painting and drilling, that is agreed in writing by the Customer and the Supplier, as modified by the Supplier from time to time in accordance with Clause 4.3

Supplier: TK Components Limited (registered in England and Wales with company number 02320087).

Warranty Period: has the meaning given in Clause 7.1. 1.2 In these Conditions and the Contract, the following rules apply:

(a)A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b)A reference to a party includes its personal representatives, successors or permitted assigns.

(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re- enacted.

(d)Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following them and each of then shall be deemed to incorporate the expression without limitation.

(e)A reference to writing or written includes e-mails.

 

2. BASIS OF CONTRACT 2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions.

2.3 A Contract shall not be formed until the Order is accepted in writing by the Supplier (Sales Order Acknowledgement) on which date the Contract will come into existence (Commencement Date). The Contract will only relate to those Goods set out in the Sales Order Acknowledgement.

2.4 The Customer is responsible for ensuring that the terms of the Order and any applicable Specification whether the same is prepared by the Customer or the Supplier are complete and accurate.

2.5 The Supplier reserves the right to refuse any Order without providing a reason.

2.6 The Contract constitutes the entire understanding between the parties in relation to its subject matter and supersedes all (if any) subsisting agreements, arrangements, understandings, negotiation, decisions or correspondence (written or oral, express or implied) relating to the same.

2.7 The Customer acknowledges that it has not relied on any warranty, statement, promise or representation made or given by or on behalf of the Supplier which is not specifically set out in the Contract. The Customer agrees and acknowledges that its only remedy in respect of those representations, statements, assurances or warranties set out in the Contract will be for breach of contract, in accordance with the terms of the Contract, provided always that nothing in this clause 2.7 shall exclude or limit the liability of the Supplier for any fraudulent misrepresentation or warranty fraudulently given and upon which the Customer can prove it has placed reliance.

2.8 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures (whether electronic or hard copy) are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

2.9 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.

2.10 In the event of a conflict, the following order of precedence shall apply to: (a)the Specification (if any); (b)the Sales Order Acknowledgement; and (c)the Conditions.

 

3. CUSTOMER’S AUTHORITY 3.1 The Customer expressly warrants that the person entering into the Contract on behalf of the Customer is authorised to accept the Contract not only for themselves and the Customer, but also as agents for and on behalf of all other persons who are, or may become, interested in the Goods, whether in whole or in part.

 

4. GOODS AND SPECIFICATION 4.1 Any Goods set out in the Supplier’s literature (whether electronic or hard copy) may change at any time. 4.2 To the extent that the Goods are manufactured in accordance with a Specification supplied by the Customer, 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 professional costs and expenses) su¥ered 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 Specification. This clause 4.2 shall survive termination of the Contract. 4.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements. 4.4 The Customer shall ensure that all Goods are installed in accordance with the manufacturer’s installation instructions. Any installation advice provided by or on behalf of the Supplier is done so free of charge and on an informal basis only without any warranties or guarantees. The Supplier shall not be liable to the Customer for any damage, costs or loss incurred (so far as permitted by law), as a result of the Customer following any installation advice provided by or on behalf of the Supplier.

 

5. CUSTOMER’S OBLIGATIONS 5.1 The Customer shall: (a)ensure that the terms of the Order and any applicable Specification are complete and accurate; (b)co-operate with the Supplier in all matters relating to the supply of the Goods; (c)provide the Supplier, its employees, agents, consultants and sub-contractors with access to the Customer’s premises, o¦ce accommodation and other facilities as reasonably required by the Supplier for the purposes of the Contract; (d)provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Goods and ensure that such information is accurate in all material respects. 5.2 If the Supplier’s performance of any of its obligations in respect of the supply of the Goods 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 delivery of the Goods until the Customer remedies the 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; (b)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 5.2; and (c)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.

 

6. DELIVERY

6.1 The Supplier shall ensure that: (a)each delivery of the Goods is accompanied by a despatch note or invoice (as appropriate) which shows the invoice number and the date the invoice was raised, 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 Goods are being delivered by installments, the outstanding balance of Goods remaining to be delivered; and (b)if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the despatch note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.

6.2 Unless stated otherwise in the Sales Order Acknowledgement, the Customer shall collect the Goods from the Supplier’s premises at Alma works, Station Yard, Dukinfield, SK16 4SE.

6.3 The Supplier shall use its reasonable endeavours to deliver the Goods to the Delivery Address or such other location as the parties may agree (Alternative Delivery Location) on the dates set out in the Sales Order Acknowledgement or at such other dates and times as agreed between the parties. Notwithstanding the foregoing, the Supplier shall notify the Customer when the Goods are ready for delivery. The Customer agrees and acknowledges that any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery 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.

6.4 Any special delivery requirements or difficulties in delivering (e.g. narrow doorways, stairs, restricted access) should be made known to the Supplier at the time of placing the Order and may be subject to additional costs. The Supplier cannot accept responsibility for any difficulties in delivery as a consequence of information or lack of information supplied by the Customer.

6.5 Delivery of the Goods shall be TERMS AND CONDITIONS OF SALE completed: (a)where the Goods are to be collected from the Delivery Address, the 3rd Business Day from the date of the Supplier’s notification that the Goods are ready for collection (whether or not the Customer actually collects the Goods by such date); or (b)where the Goods are to be delivered to the Alternate Delivery Location, at the time of the Goods’ arrival at the Alternative Delivery Location; (the Delivery Date).

6.6 Notwithstanding clause 6.3, 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 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.

6.7 If the Customer fails to accept delivery of the Goods in accordance with Clause 6.5, then except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods, the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance). Such charge to be equal to 15% of the value of the order.

6.8 If 14 Business Days after the day on which 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 recover its reasonable storage and selling costs in respect of the Goods and: (a) Where the Customer has paid for the Goods in full, account to the Customer for any excess sums recovered over the price of the Goods and such storage and selling costs; or (b) Where there are insu¦cient funds to cover the storage or selling costs or where the Customer has not yet paid for the Goods in full, charge the Customer for any shortfall below the price of the Goods to cover such costs.

6.9 The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including 10% 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.

6.10 The Supplier may deliver the Goods by installments, which shall be invoiced and paid for separately. References in these Conditions to delivery of the Goods shall, where applicable, be read as to include reference to delivery of the Goods by installments. Each installment shall constitute a separate Contract and any delay in delivery or defect in an installment shall not entitle the Customer to cancel any other installment.

7. QUALITY Warranty

7.1 The Supplier warrants that on delivery, and for a period of 6 years (or other period as expressly confirmed by the Supplier in writing in the Acceptance Notice) from the date of delivery (Warranty Period), the Goods shall:

(a)conform in all material respects with the Specification;

(b)be free from material defects in design, material and workmanship; and

(c)be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and; (d)be fit for any purpose held out by the Supplier.

7.2 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 7.1 in any of the following events:

(a)the Customer makes any further use of such Goods after giving notice in accordance with this clause 7;

(b)the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods (including all instructions in the technical guide and the door care guide as published by the Supplier) or (if there are none) good trade practice regarding the same;

(c)the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;

(d)the Customer works, alters, tailors or repairs such Goods (including drilling the 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 storage or working conditions; or

(f)the Goods di¥er from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

7.3 Except as provided in this clause 7, the Supplier shall have no other liability to the Customer in respect of the quality of the Goods.

Faulty Goods 7.4

If the Customer gives notice in writing to the Supplier that some or all of the Goods do not comply with the warranty set out in clause 7.1 (Faulty Goods), the Supplier shall, at its option, repair or replace the Faulty Goods, or refund the price of the Faulty Goods in full. The Supplier will not be responsible for any associated costs in relation to the replacement of Faulty Goods. If the Goods are found to have been Faulty Goods due to a fault of the Customer, damage caused by the Customer or are Faulty Goods due to an event set out in clause 7.2 above, the Goods will be returned to the Customer and the Customer will pay a handling charge to the Supplier.

Damaged Goods 7.5

The Supplier shall have no obligations arising under clauses 7.6 to 7.12 for any goods already installed by the Customer (where installed shall mean removed from packaging and fixed in place as if it were ready for use).

7.6 Subject to clause 7.7:

(a)if the Goods are damaged (Damaged Goods) the Customer must send a photograph to the Supplier within five Business Days of the Delivery Date of the Damaged Goods and the Supplier will consider whether to send a courier to collect the Damaged Goods; and

(b)if the Supplier is required to collect the Damaged Goods, the Customer will be notified within 5 Business Days of the date the Damaged Goods are to be collected; and

(c)the Supplier is to be given a reasonable opportunity to examine such Damaged Goods; and

(d)it is at the Suppliers discretion as to whether a handling charge of £208.00 is charged to the Customer if they return the Damaged Goods and the Damaged Goods are found to have been damaged by the Customer, or are Damaged Goods due to an event set out in clause 7.2.

If the Damaged Goods are in a condition where they cannot be sold, the Damaged Goods will be returned to the Customer and the Customer will pay a handling charge to the Supplier; and

(e)the Damaged Goods should be returned in their original packaging; and (f)the Customer (if asked to do so by the Supplier) returns the Damaged Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the Damaged Goods, or refund the price of the Damaged Goods in full. The Supplier will not be responsible for any associated costs in relation to the replacement of the Damaged Goods. If the Damaged Goods have been made to the Customer’s Specification and are found to have been damaged by the Customer or are Damaged Goods due to an event set out in clause 7.2, the Damaged Goods will be returned to the Customer and the Customer will pay a handling charge to the Supplier.

7.7 In the Event that the Supplier is required by the Customer to attend and inspect the Damaged Goods after delivery to the Customer and damage is found to the Goods for which the Supplier is responsible, no charge for the site visit will be levied. If there is damage to the Goods, or part thereof, for which the Customer is responsible or due to an event set out in clause 7.2, the Supplier may raise an invoice addressed to the Customer for £208.00 for each such site visit.

Incorrectly Supplied Goods 7.8

If the Customer gives notice in writing to the Supplier within 14 Business Days of the Delivery Date that some or all of the Goods delivered were supplied incorrectly (Incorrectly Supplied Goods), the Supplier will, subject to verification that the Goods have been supplied incorrectly, replace the Incorrectly Supplied Goods with the correct Goods and will arrange for the Incorrectly Supplied Goods to be collected from the Customer within a reasonable time period. Incorrectly Ordered Goods

7.9 If the Customer gives notice to the Supplier that some or all of the Goods supplied were ordered incorrectly or are no longer needed (Incorrectly Ordered Goods), then the Supplier may (at its discretion) accept the return of the Incorrectly Ordered Goods, and where the Incorrectly Ordered Goods have been paid for, issue a credit note to the Customer for the Incorrectly Ordered Goods, subject to the following conditions:

(a)the Customer notifies the Supplier of its desire to return the Incorrectly Ordered Goods in writing by no later than 28 Business Days of the Delivery Date;

(b)the Supplier has confirmed to the Customer in writing that it will accept the return of the Incorrectly Ordered Goods (for the avoidance of doubt, the Supplier may refuse to accept any return at its discretion);

(c)the Customer pays the collection charge if they have been delivered, the amount being at the discretion of the Supplier (if applicable);

(d)the Customer pays an administration charge equivalent to 15% of the value of the Incorrectly Ordered Goods;

(e)if they have been delivered, the Incorrectly Ordered Goods are still within their original packaging, remain unopened and have suffered no damage; and

(f)they are not Goods that fall within clauses 7.11 or 7.12.

7.10 If the conditions set out in clause 7.9 are not met, a credit note will not be issued by the Supplier to the Customer. If the Goods have not been delivered, the Customer will have 14 Business Days from the date the Supplier notifies the Customer, in writing, that the Incorrectly Ordered Goods will not be accepted, to collect the Incorrectly Ordered Goods from the Supplier. If the Incorrectly Ordered Goods are not collected within 14 Business Days from the date the Supplier notifies the Customer, in writing, that the Incorrectly Ordered Goods will not be accepted, then Goods which have been made to the Customer’s Specification shall be destroyed without prejudice to any claim the Supplier may have against the Customer.

7.11 Any Goods which have been made to the Customer’s Specification cannot be returned as Incorrectly Ordered Goods and a credit note shall not be issued for such Goods.

7.12 Any Incorrectly Ordered Goods that have been discontinued or are not in the Supplier’s current stock range cannot be returned as Incorrectly Ordered Goods and a credit note shall not be issued for such Goods.

Other Matters Relating to the Goods 7.13

Natural aging of the Goods means that they will patina over time, the Supplier is unable to guarantee that any replacement Goods will be of an identical match to the original colour and/ or finish of the Goods originally purchased by the Customer. In the event that any replacement Goods are supplied pursuant to this clause 7, then the Supplier’s liability will be limited to the purchase price paid by the Customer in respect of the particular Goods. In the event that such replacement Goods are supplied, the Supplier accepts no liability as to conformity of the replacement Goods supplied to previous Goods supplied.

7.13 Natural aging of any paint to order products, means that they will patina over time and particularly after 3 months. The supplier is unable to guarantee that any replacement paint to order product will be of an identical match to the original colour of the good originally purchased by the Customer. In the event that any replacement goods are supplied pursuant to this clause 7, then the Supplier’s liability will be limited to the purchase price paid by the Customer in respect of the particular Goods. In the event that such replacement Goods are supplied, the Supplier accepts no liability as to conformity of the replacement Goods supplied to previous Goods supplied.

7.14 The terms implied by sections 14 to 16 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

7.15 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

7.16 Any refund or credit given pursuant to this clause 7, will be applied to the Customer’s account within 14 Business Days of confirmation from the Supplier, in writing, that such refund or credit note has been issued to the Customer.

7.17 Any Goods returned to the Supplier’s trade counter and will be subject to the foregoing provisions of this Clause 7 will be subject to this clause 7 must be pre-authorised by the Supplier’s customer services department prior to the Customer returning the Goods. No Goods can be returned without a “return number” which will be issued to the Customer in writing by the Supplier if the return is approved.

8. TITLE AND RISK

8.1 The risk in the Goods shall pass to the Customer on the Delivery Date.

8.2 Title to the Goods shall not pass to the Customer until the Supplier has received: (a)payment in full (in cash or cleared funds) for the Goods; and

(b)all other monies due to the Supplier from the Customer.

8.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a)hold the Goods on a fiduciary basis as the 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 from the date of delivery;

(e)notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.2; 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.

8.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 13.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that 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 any other goods of the Supplier that the Customer may hold but in respect of which the Customer is not the beneficial owner of the same 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, with or without notice, in order to recover them. The Supplier’s employees or agents shall have the right at any time to enter upon the premises of the Customer or of any third party where the Goods are stored, for the purpose of effecting such repossession.

9. PRICE AND PAYMENT

9.1 The price of the Goods shall be the price set out in the Sales Order Acknowledgement, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.

9.2 The Supplier may, by giving notice to the Customer at any time up to 5 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

(a)any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b)any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

(c)any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

9.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods (including unloading of Goods), which shall be invoiced to the Customer.

9.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). 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 Goods.

9.5 The Supplier may invoice the Customer for the Goods on or at any time after the Commencement Date.

9.6 The Customer shall pay the invoice in full and in cleared funds by the due date as stated on the invoice, or within 30 Business Days of the date of the invoice, whichever is the earliest. Payment shall be made to the bank account nominated in writing by the Supplier, or by cash or credit card. Time of payment is of the essence.

9.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and the Supplier will be entitled to suspend delivery of Goods of subsequent contracts and revise any agreed discounts until the outstanding amounts have been received. The Customer shall pay the interest together with the overdue amount.

9.8 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 payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set o¥ any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

10. CANCELLATION OF ORDERS

10.1 The Supplier will use reasonable endeavours to meet Customers’ individual requirements, but the Supplier shall be under no obligation to accept cancellation or amendment to any Contract or any part of a Contract. Where such cancellation or amendment to a Contract is agreed by the Supplier, it is on the understanding that a cancellation or amendment charge may be levied.

11. NON-ARRIVAL OF GOODS

11.1 Where the Supplier is responsible for delivering the Goods to the Alternate Delivery Location, the Customer must inform the Supplier within 5 Business Days of the date of advice of dispatch, in the event of non-arrival of the Goods at the Alternate Delivery Location otherwise no claim can be considered.

12. SAMPLE GOODS

12.1 The Suppler may supply to the Customer, at the Supplier’s own expense, samples, sales literature and other documents and information to enable the Customer to promote and sell the goods (Sample Goods). The Sample Goods shall at all times belong to the Supplier and the Customer shall hold the Sample Goods on a fiduciary basis as the Supplier’s bailee.

12.2 Where the Supplier provides Sample Goods to the Customer, the Customer shall:

(a)use the Samples Goods only for the purpose of promoting and retailing goods;

(b)at it’s own expense, keep all Sample Goods in conditions required by the Supplier or (in the absence of any such notification) which are appropriate for their storage and security, separately from other goods and clearly indicated as belonging to the Supplier;

(c)at its own expense, insure and keep insured all of the Supplier’s property (including the Sample Goods) which may at any time be in the Customer’s possession, custody or control with a reputable insurer to its full replacement value against all the risks for which a prudent trader would insure his own property of the same type, to show to the Supplier on demand the policy document and the most recent receipt for premium, to perform any obligation required of it under the terms of such insurance, to do nothing which could invalidate any such insurance, and to pay to the Supplier promptly on receipt the proceeds of any insurance claim made in respect thereof, holding the same pending such payment in trust for the Supplier;

(d)allow the Supplier’s authorised representatives at any reasonable time to have access to the Customer’s premises (or to arrange for the Supplier’s authorised representatives to have access to other relevant premises) for the purpose of inspecting the Sample Goods, to take possession of the Sample Goods;

(e)observe all directions and instructions given to it by the Supplier in relation to assembly, use and display of the Sample Goods;

(f)maintain, on its own account, an inventory of the Sample Goods;

(g)return the Sample Goods to the Supplier immediately on demand (at its own cost).

13. CUSTOMER’S INSOLVENCY OR INCAPACITY

13.1 If the Customer becomes subject to any of the events listed in clause 13.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may terminate the Contract, cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.

13.2 For the purposes of clause 13.1, the relevant events are:

(a)the Customer 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;

(b)the Customer commences negotiations with all or any class of 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 the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent

(c)reconstruction of the Customer;

(d)(being a company) 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 Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(e)(being an individual) the Customer is the subject of a bankruptcy petition or order;

(f)a creditor or encumbrancer of the Customer 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 Business Days;

(g)(being a company) 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 Customer;

(h)(being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;

(i)a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;

(j)any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(a) to clause 13.2(h) (inclusive);

(k)the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;

(l) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and

(m) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

13.3 The Supplier may terminate the Contract:

(a)if the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 Business Days of that party being notified in writing to do so; and

(b)with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract or under any other contract entered into between the Supplier and the Customer on the due date for payment.

13.4 On termination of the Contract for any reason, the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.

13.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

14. LIMITATION OF LIABILITY

14.1 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 subcontractors (as applicable);

(b) fraud or fraudulent misrepresentation;

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

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

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

14.2 Subject to clause 14.1:

(a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential 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 circumstances exceed 125% of the amount paid by the Customer for the Goods that are the subject of the Contract.

14.3 This clause 14 shall survive termination of the Contract.

15. FORCE MAJEURE

Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

16.CONFIDENTIALITY 16.1

Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, prices, costs, customers, clients or suppliers of the other party, except as permitted by clause 16.2.

16.2 Each party may disclose the other party’s confidential information:

(a)to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 16.2; and

(b)as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. 16.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

17. ASSIGNMENT AND SUBCONTRACTING

17.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. 17.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.

18.NOTICES

18.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.

18.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 18.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; 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 or e-mail, one Business Day after transmission.

18.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

19. SEVERANCE

19.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. 19.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

20.WAIVER

20.1 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 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.

21. THIRD PARTY RIGHTS

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

22.VARIATION

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

23. GOVERNING LAW AND JURISDICTION

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