TERMS AND CONDITIONS OF SUPPLY OF GOODS (“the Terms”)

1. Interpretation

• In these Terms:

The “Buyer”, shall mean any person, firm, company, public authority, or statutory body, who places order(s) for equipment, products or services, sold or supplied by the Company which order(s) are accepted by the Company;

The “Company” shall mean METALITE ENGINEERING COMPANY LIMITED (registered in the Register of Companies under no. 01098644) and trading from 35 Ganton Way, Techno Trading Estate, Swindon, SN2 8ES.

“Goods” shall mean the engineering tooling and components in accordance with these Terms.

(b) Quotations are made and all orders accepted, subject to these Terms.

(c) The placing of an order with the Company by the Buyer, shall be deemed to be an acceptance of these Terms by the Buyer.

(d) The headings in these Terms are for convenience only and shall not affect their interpretation.

(e)  The Company shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Company which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Company (the “Contract”), subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.

(f)  No variation to these Terms shall be binding unless agreed in writing between the Buyer and the Company.

2. Quotations

All quotations are made at current prices and are valid for a period of 30 days only from the date of the quotation, provided that the Company has not previously withdrawn it. Any price or discount quoted will be applicable only to quantity or quantities specified on the Buyer’s enquiry.

3. Orders & Specifications

The Company’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in writing.

The Buyer shall be responsible to the Company for ensuring the terms of any order (including any applicable specification) are both complete and accurate before being submitted to the Company, and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.

The quantity, quality and description of and any specification for the Goods shall be those set out in the Company’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Company).

A valid contract will come into force when the Company confirms its acceptance of the Buyer’s order in writing on the terms set out herin.

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

4. Prices

The price of the Goods shall be the Company’s quoted price (“the Price”) which is inclusive of delivery to the Buyer.

The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Company.

5. Payment

Subject to any special terms agreed in writing between the Buyer and the Company the Company shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Company shall be entitled to invoice the Buyer for the price at any time after the Company has notified the Buyer that the Goods are ready for collection or (as the case may be) the Company has tendered delivery of the Goods.

All accounts are due and receivable by the Company within 30 days of the date of invoice.  The time of payment shall be of the essence of the Contract.  In the event of non-payment by the due date, the Company reserves the right to charge interest at the rate per annum equal to the base rate of Bank of Scotland Plc, plus 4% on all monies overdue from whatsoever cause until payment in full is made.  Further, if at any time any sum owed by the Buyer is overdue, the Company reserves the right to withhold delivery of any Goods until such time as all sums due to the Company have been paid.

6. Delivery

Delivery of the Goods shall be made by the Company delivering the Goods to the Buyer’s premises at any time after the Company has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Company, by the Company delivering the Goods to that place.

The Buyer shall provide at the delivery point and at its expense adequate and appropriate equipment and manual labour for unloading the Goods.

Any dates quoted for delivery of the Goods are approximate only and the Company shall not be liable for any delay in delivery of the Goods however caused.  Time for delivery shall not be of the essence of the Contract unless previously agreed by the Company in writing.  The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

If the Company fails to deliver the Goods for any reason other than any cause beyond the Company’s reasonable control or the Buyer’s fault, and the Company is accordingly liable to the Buyer, the Company’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods and the Company shall not be liable to the Buyer for any direct, indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agent or otherwise) which arise out of any failure of the Company to deliver the Goods in any such circumstance.

7. Retention of Title

Title to any Goods supplied by the Company shall not pass to the Buyer until payment in full has been received by the Company in respect of any such goods and any other outstanding amounts due and payable to the Company.  The risk of loss or damage to the goods shall pass to the Buyer at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods.

Until such time as the legal title in the Goods passes to the Buyer, the Buyer shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured to their full price against all risks and shall provide evidence of such insurance (if requested to do so) to the Company. The Goods are to be identified as the Company’s property, but the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business.

Until such time as the legal title in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Company shall be entitled at any time to require the Buyer to deliver up the Goods to the Company and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

8. Warranties & Liability

Subject to the conditions set out below the Company warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 6 months from the date of their initial use or 6 months from delivery, whichever is the first to expire.

The above warranty is given by the Company subject to the following conditions:

• the Company shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
• the Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company’s approval;
• the Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
• the above warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.

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

Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Company within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure.  The Company shall not be liable for a breach of the warranty if the Buyer makes any further use of the Goods after giving such notice as specified above. If delivery is not refused, and the Buyer does not notify the Company accordingly, the Buyer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Terms, the Company shall be entitled to replace the Goods (or the part in question) free of charge or, at the Company’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Company shall have no further liability to the Buyer.

Except in respect of death or personal injury caused by the Company’s negligence, and except as provided in the preceding paragraph, the Company shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition, or other term, or any duty at common law, or under the express terms of the Contract, for any direct, indirect, special, or consequential loss or damage (whether for loss of profit, loss of business or depletion of goodwill), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer.

The Company shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s

obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control.  Without prejudice to the generality of the foregoing,

the following shall be regarded as causes beyond the Company’s reasonable control:-

(a)   Act of God, explosion, flood tempest, fire or accident;

(b) War or threat of war, sabotage, insurrection, civil disturbance or requisition;

(c)  Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary, or local authority;

(d)  Import or export regulations or embargoes;

(e) Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);

(f)  Difficulties in obtaining material supplies, labour, fuel, parts or machinery;

(g)  Power failure or breakdown in machinery.

9. Insolvency of Buyer

If:-

(a) the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);  or

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

(c) the Buyer ceases, or threatens to cease, to carry on business; or

(d)  the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer, and notifies the Buyer accordingly;

then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary.

The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to recover them where the Buyer’s right to possession of them has terminated.

10. Intellectual Property Rights

All intellectual property rights relating to the Goods (including but without being limited to the copyright and design rights in all drawings, samples and specifications or other intellectual property (“Intellectual Property”) shall as between the parties be the property of the Company and all of the Company’s rights to such Intellectual Property are expressly reserved.  All Intellectual Property submitted to the Buyer is on the condition that its subject matter will not be copied or divulged to a third party or used for any other purpose apart from placing an order for Goods with the Company.

Where any designs or specifications have been supplied by the Buyer for manufacture by the Company or to the order of the Buyer, then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.

Where the Buyer has commissioned the design of the Goods from the Company the Buyer grants an absolute assignment of all of its intellectual property rights to the Company.  This assignment is granted without prejudice to the rights of the Buyer in relation to specific branding or pre-existing proprietary designs.

11. Errors and Omissions

The Company reserves the right to amend any accidental error or omission without liability.

12. General

Any notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to that other party at its principal place of business, or such other address as may at the relevant time, have been notified pursuant to this provision to the party giving the notice.

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

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

This Contract shall be governed by the laws of England, and the Buyer agrees to submit to the exclusive jurisdiction of the English courts, save as to enforcement.

This Contract is personal to the Buyer, who shall not assign nor in any way part with the benefit thereof without the Company’s prior written consent.  The parties do not intend any third party rights to be created under or pursuant to this Contract under the Contract (Rights of Third Parties) Act 1999.

These Terms constitute the entire agreement between the Company and the Buyer with respect to the subject matter contained herein.  These Terms supersede any other agreement, proposal and communications, whether written or verbal or by electronic communication, between both parties.