CLARKE INSTRUMENTS LIMITED

Terms and Conditions for the supply of goods and/or services

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 12

1 Interpretation

1.1 In these Conditions, the following definitions apply:

‘Business Day’ a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business;

‘Commencement Date’ has the meaning set out in clause 2.2;

‘Conditions’ these 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;

‘Contract Price’ the price paid by the Customer to the Supplier for the Goods and/or Services;

‘Customer’ the person or firm who purchases the Goods and/or Services from the Supplier;

‘Deliverables’ the deliverables set out in the Order;

‘Delivery Location’ has the meaning set out in clause 4.2;

‘Force Majeure Event’ has the meaning given to it in clause 17.1(a);

‘Goods’ the goods (or any part of them) set out in the Order;

‘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 patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

‘Order’ the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order or the Customer’s written acceptance of the Supplier’s quotation, as the case may be;

‘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’ Clarke Instruments Limited registered in England and Wales with company number 953610;

‘Supplier Materials’ has the meaning set out in clause 8.1(g).

Further definitions appear throughout these terms.

1.2 In these Conditions, the following rules of construction 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, successors or permitted assigns;

(c) a reference to a statute or statutory provision is a reference to such statute or statutory 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 those terms; and

(e) a reference to ‘writing’ or ‘written’ includes faxes.

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.

2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (‘Commencement Date’).

2.3 The Contract constitutes the entire agreement between the parties. The Customer 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.

2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any 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 Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force.

2.5 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.

2.6 Any quotation given by the Supplier shall not constitute an offer, and (unless otherwise expressly stated in writing in the relevant quotation) is only valid for a period of 90 days from its date of issue.

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

3 Goods

3.1 The Goods are described in the Supplier’s literature as modified by any applicable Goods Specification. All illustrations, drawings. literature, photographs (including information or data in electronic form) provided 3 by the Supplier to the Customer are, unless the Supplier otherwise expressly specifies in writing, indicative only.

3.2 To the extent that the Goods are to be manufactured in accordance with a Goods 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) 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 3 shall survive termination of the Contract.

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

4 Delivery of Goods

4.1 The Supplier shall ensure that:

(a) 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 installments, the outstanding balance of Goods remaining to be delivered; and

(b) if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery 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.

4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (‘Delivery Location’) at any time after the Supplier notifies the Customer that the Goods are ready. All export quotations are (unless otherwise expressly agreed by the Supplier in writing) for delivery on an ex works basis and the Customer shall collect the Goods from the Supplier’s premises at Distloc House, Old Sarum Airfield, The Portway, Salisbury, Wiltshire SP4 6DZ (or such other location as may be advised by the Supplier before delivery) when the Supplier notifies the Customer that the Goods are ready.

4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location or, if a carrier is being used to deliver the Goods, on delivery of the Goods to the carrier. Signature of any delivery note by the Customer, its agent or the carrier shall be proof of delivery. Unless otherwise expressly agreed in writing, the Customer is responsible for unloading delivery vehicles and removal of Goods to safe, dry storage.

4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Delivery lead-time for Goods shall be calculated from the date on which the Supplier receives written approval of any applicable drawings. The Supplier shall not be liable for any delay in delivery of the Goods 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.

4.5 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.

4.6 If the Customer fails to accept or take delivery of the Goods within one Business Day 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 Business Day following the day on which the Supplier 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).

4.7 If within 10 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.

4.8 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.

5 Quality of Goods

5.1 The Supplier warrants that on delivery and for a period of 12 months from the date of delivery (‘Warranty Period’) (or, where the Supplier has installed the Goods, the date of installation), the Goods shall:

(a) conform in all material respects with their description and any applicable Goods Specification; and

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

provided that the above warranty does not extend to parts, materials or equipment not manufactured by the Supplier, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Supplier.

5.2 Subject to clause 5.3, if:

(a) the Customer gives notice in writing during the Warranty Period and within seven days of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;

(b) the Supplier is given a reasonable opportunity of examining such Goods; and

(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,

the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:

(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;

(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, 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 their description or any Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

5.4 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 5.1.

5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 5.2.

6 Title and risk

6.1 The risk in the Goods shall pass to the Customer on completion of delivery, provided that if the Delivery Location is somewhere other than the Supplier’s premises and the Goods are to be delivered by carrier, risk shall pass to the Customer when the carrier takes possession of the Goods.

6.2 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.

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

(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) 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;

(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.1(b) to clause 13.1(l); and

(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.

If the goods are purchased by the customer for resale, the Customer shall, in addition to its obligations in clause 6.3(a) to clause 6.3(e), hold the Goods on a fiduciary basis as the Supplier’s bailee but the Customer may resell or use the Goods in the ordinary course of its business.

6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 13.1(b) to clause 13.1(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.

7 Supply of Services

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

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

7.3 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.

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

8 Customer’s obligations

8.1 The Customer shall:

(a) ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate;

(b) co-operate with the Supplier in all matters relating to the Services;

(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;

(d) provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

(e) prepare the Customer’s premises for the supply of the Services;

(f) 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;

(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 7 Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and

(h) without prejudice to the generality of clause 8.1(a) to clause 8.1(g), the Customer shall (unless otherwise specifically provided in the Supplier’s quotation) be responsible for:

(i) unloading of Goods and their dry, secure storage on site and the movement of Goods to the installation position;

(ii) provision of all necessary scaffolding, ladders, hoisting equipment, cranage or specialist lifting equipment;

(iii) provision of suitable low voltage electric power for hand tools, adjacent to the installation position;

(iv) provision of welfare facilities required by any statute or regulation;

(v) provision of all necessary flood lighting or task lighting;

(vi) provision of all necessary equipment foundations, mains power supplies, control cables, inductive road loops and drainage;

(vii) provision of detailed and accurate site services drawings for the installation area showing all gas, water, sewerage, communications and electricity services and media and their positions relative to the works to be undertaken.

8.2 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 performance of the Services 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 8.2; 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.

9 Charges and payment

9.1 The price for Goods shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of delivery. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall (unless otherwise agreed in writing between the Customer and the Supplier) be paid by the Customer when it pays for the Goods.

9.2 Unless otherwise agreed in writing by the Supplier, the charges for Services shall be on a time and materials basis:

(a) the charges shall be calculated in accordance with the Supplier’s standard daily fee rates;

(b) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited 8 to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.

9.3 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:

(a) any factor beyond the control of the Supplier (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 Goods Specification; or

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

9.4 Invoicing:

(a) subject to clause 9.4(b) to clause 9.4(d), the Supplier shall invoice the Customer on or at any time after completion of delivery of the Goods (or their deemed delivery pursuant to clause 4.6(a));

(b) the Supplier may investigate the Customer’s credit status and reserves the right to invoice the Customer on a proforma invoice basis;

(c) the Supplier reserves the right to raise a single invoice for the full order value on the installation date or on the works completion date;

(d) in respect of Orders from outside Great Britain (overseas orders), the Supplier may invoice the Customer for 50% of the order value of the Goods on the Commencement Date (as defined in clause 2.2) and the balance prior to delivery. Installation works in respect of overseas orders may be invoiced in advance of the site visit of the Supplier’s engineers.

9.5 Subject to clause 9.4(b) and clause 15.6, the Customer shall (unless otherwise agreed in writing by the Supplier) pay each invoice submitted by the Supplier:

(a) within 30 days of the date of the invoice; 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 of the Contract.

9.6 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.

9.7 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:

(a) to charge interest on the overdue amount at the rate of 2% per cent per month accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment;

(b) to suspend performance of the Supplier’s obligations to the Customer pursuant to clause 13.3(a) until the overdue amount (together with any accrued interest) has been paid to the Supplier; and

(c) to withdraw any credit facility previously afforded to the Customer by the Supplier.

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, 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.

9.9 The Supplier has the right to vary payment terms at any time.

10 Intellectual property rights

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

10.2 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 written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.

10.3 All Supplier Materials are the exclusive property of the Supplier and may not, without the written agreement of the Supplier, be copied or altered.

11 Confidentiality

The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents or subcontractors, and any other confidential information concerning the Supplier’s business or its products or its services which the Customer may obtain. The Customer shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Customer’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 Customer. This clause 11 shall survive termination of the Contract.

12 Limitation of liability

12.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

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

(b) fraud or fraudulent misrepresentation; 10

(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.

12.2 Subject to clause 12.1:

(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or any duty at common law, or otherwise, for any loss of profit, or any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of 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 any duty at common law, or otherwise, shall in no circumstances exceed the Contract Price.

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

12.4 This clause 12 shall survive termination of the Contract.

13 Termination

13.1 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 under this Contract and (if such breach is remediable) fails to remedy that breach within 28 days after receipt of notice in writing of the breach;

(b) 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;

(c) the other party 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 a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(d) 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 amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;

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

(f) a creditor or encumbrancer 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;

(g) 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);

(h) a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes entitled to appoint a 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 13.1(b) to clause 13.1(j) (inclusive);

(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all 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.

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

(a) by giving the Customer 3 months’ written notice;

(b) with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.

13.3 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 13.1(b) to clause 13.1(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

14 Consequences of termination

14.1 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 12 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 Supplier 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 take possession of them. Until they have been returned, the Customer shall be 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.

15 Export terms

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

15.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 15 shall (subject to any special terms agreed in writing between the Customer and the Supplier) apply notwithstanding any other provision of these Terms.

15.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination (including the obtaining of all necessary export and import licences in respect of the Goods) and for the payment of any duties, taxes, charges and assessments on them.

15.4 Unless otherwise agreed in writing between the Customer and the Supplier, the Goods shall be delivered on an ex works basis. However, if, in any particular case, it is agreed in writing between the Customer and the Supplier that the Goods shall be delivered fob the air or sea port of shipment then the Supplier shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

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

15.6 Unless otherwise required by the Supplier, payment of all amounts due to the Supplier shall be made by an irrevocable letter of credit, in a form acceptable to the Supplier, to be opened by the Customer in favour of the Supplier and confirmed by a bank in the United Kingdom acceptable to the Supplier within 14 days after the Contract is concluded.

16 Returns policy

16.1 If the Customer has placed an incorrect Order for standard electric releases, solenoid bolts or gate locks manufactured by the Supplier or such other Goods as the Supplier may agree in writing (Returnable Goods) that are not defective but that the Customer wishes to return then, subject to clause 16.2 to clause 16.4, the Supplier will issue to the Customer a credit for use by the Customer to purchase other goods or services from the Supplier.

16.2 Any credit issued by the Supplier:

(a) shall be net of any costs of carriage included in the price for the Returnable Goods;

(b) if the Returnable Goods are not returned to Supplier within 7 days after completion of their delivery (or their deemed delivery pursuant to clause 4.6(a)) or were paid for by credit card, shall be subject to a 20% re-stocking charge;

16.3 No credit shall be issued by the Supplier unless the Returnable Goods are returned to the Supplier:

(a) unused in their original packaging and complete with all original instructions, leads and ancillary equipment;

(b) with their original invoice number and without damage to the Returnable Goods or the packaging;

16.4 The following are not Returnable Goods and, subject to the other terms of these Conditions, will not be accepted for return and credit:

(a) automation equipment including, by way of example only, barriers, turnstiles and gate drives;

(b) modified or bespoke equipment;

(c) Good purchased as a special order or spares or Goods other than those referred to in clause 16.1.

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

(b) 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.

(c) If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than 26 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.

17.2 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.

17.3 Notices:

(a) Any notice or other communication 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 first-class post, recorded delivery or by 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.

(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such address or, if sent by prepaid first-class 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.

(c) 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 e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.

17.4 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 provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.

17.5 Severance:

(a) If a court or any other 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 deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

(b) 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.

17.6 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.

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

17.8 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.

17.9 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 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 and Wales.