Terms and Conditions

Elektron Technology UK Limited –
Standard terms and conditions of sale

The Purchaser’s Attention is particularly drawn to the provisions of condition 11.

1. DEFINITIONS

In these Conditions:-

(a) “a Contract” means any contract between the Company and the Purchaser for the sale and purchase of the Goods, incorporating these Conditions;

(b) “the Company” means Elektron Technology UK Ltd, incorporated in England and Wales with company number 04949934 and registered office at c/o Elektron Technology plc, Broers Building, JJ Thomson Avenue, Cambridge CB3 0FA;

(d) “Goods” means the goods listed in any quotation addressed to the Purchaser and/or the goods supplied by the Company to the Purchaser pursuant to the Contract (including any part or parts of them); and

(e) references to „the Conditions“ shall mean references to these terms and conditions as from time to time amended or varied in accordance with condition 2 below.

2. APPLICATION OF TERMS

(a) Subject to any variation under this condition 2(a), the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms and conditions endorsed upon, delivered with or referred to in any purchase order or other document sent by the Purchaser to the Company) and no variation or alteration of these Conditions or representations about the Goods shall have any effect unless expressly agreed in writing between the Company and the Purchaser and signed by a director of the Company. The Purchaser acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.

(b) Each order or acceptance of a quotation for Goods by the Purchaser from the Company shall be deemed to be an offer by the Purchaser to buy Goods subject to these Conditions. No order placed by the Purchaser shall be deemed to be accepted by the Company until a written acceptance of order is issued by the Company or (if earlier) the Company delivers the Goods to the Purchaser.

(c) Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acceptance of order to the Purchaser. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.

(d) The Purchaser may not cancel any Contracts, postpone any deliveries or return any Goods without the prior written consent of the Company.

3. PRICES

(a) Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s price list relevant to the type of transaction as at the date of delivery or deemed delivery. The company reserves the right to amend the price quoted for the Goods before delivery of them.

(b) Unless otherwise agreed in writing, the prices for the Goods are exclusive of all taxes (including V.A.T.) paid or payable by the Company which shall be added to the price and shall be paid by the Purchaser when it is due to pay for the Goods.

(i) to pass on to the Purchaser any costs or charges in relation to transportation, packaging and insurance incurred by the Company in delivering the Goods to the Purchaser; and

(ii) to charge a handling charge on all small orders, all of which shall be paid by the Purchaser when it is due to pay for the Goods.

4. DELIVERY

(a) Unless agreed otherwise in writing by the Company, delivery of the Goods shall take place at the Company’s place of business. The Purchaser shall take delivery of the Goods within 48 hours of the Company giving it notice that the Goods are ready for delivery.

(b) Delivery dates given by the Company are approximate only and delay in delivery shall not give the Purchaser the right to cancel any order unless the Company has accepted in writing a firm delivery date with time being expressed to be of the essence of the Contract.

(c) Subject to the other provisions of these Conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Purchaser to terminate or rescind the Contract unless such delay exceeds 180 days.

(d) If for any reason the Purchaser fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Purchaser has not provided appropriate instructions, documents, licences or authorisations:

(i) risk in the Goods shall pass to the Purchaser (including for loss or damage caused by the Company’s negligence);

(ii) the Goods shall be deemed to have been delivered; and

(iii) the Company may store the Goods until delivery has been effected, whereupon the Purchaser shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

(e) If delivery is being effected under condition 4(a), the Purchaser shall provide at the point of delivery and at its expense adequate and appropriate equipment and manual labour for loading the Goods.

(f) If the Company delivers to the Purchaser a quantity of Goods of up to 10% more or less than the quantity accepted by the Company under a Contract, the Purchaser shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.

(g) The Company reserves the right to deliver Goods by instalments in any sequence and to invoice each instalment separately. Where the Goods are delivered by instalments, each instalment shall be deemed to be purchased under a separate Contract. No cancellation or termination of any one Contract relating to an instalment shall entitle the Purchaser to repudiate or cancel any other Contract or instalment.

(h) Unless a specific method and manner of transportation of Goods in relation to any particular order is agreed in writing between the Company and the Purchaser, Goods shall be transported by such method as the Company shall select.

(i) Where it is agreed that Goods shall be delivered to the Purchaser at its place of business (or such other address agreed in writing between the parties), delivery to a carrier shall constitute delivery to the Purchaser and risk shall pass at the point of delivery to the carrier. The Purchaser shall be responsible for arranging its own insurance to cover such risk.

5. NON-DELIVERY

(a) The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Purchaser on delivery unless the Purchaser can provide conclusive evidence proving the contrary.

(b) The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Purchaser gives written notice to the Company of the non-delivery within 24 hours of the date when the Goods would in the ordinary course of events have been received.

(c) Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.

6. DESCRIPTION

(a) The quantity and description of the Goods shall be as set out in the Company’s quotation or acceptance of order.

(b) All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.

7. RISK/TITLE

(a) The Goods are at the risk of the Purchaser from the time of delivery.

(b) Property and ownership in the Goods, notwithstanding delivery of the Goods to the Purchaser, shall not pass from the Company until:-

(i) the Company has been paid in full (in cash or cleared funds) for the Goods; and

(ii) no other sums are then outstanding from the Purchaser to the Company on any account whatever, whether or not such sums have become due for payment.

(i) the Purchaser shall hold the goods on a fiduciary basis as bailee for the Company;

(ii) the Purchaser shall store and label the Goods separately from the other goods in its possession, at no cost to the Company, so that the Goods are readily identifiable as the Company’s goods;

(iii) the Purchaser shall maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Purchaser shall produce the policy of insurance to the Company.

(d) The Purchaser may resell the Goods before ownership has passed to it solely on the following conditions:

(i) any sale shall be effected in the ordinary course of the Purchaser’s business at full market value; and

(ii) any such sale shall be a sale of the Company’s property on the Purchaser’s own behalf and the Purchaser shall deal as principal when making such a sale.

(e) The Purchaser’s right to possession of the Goods shall terminate immediately if any of the events in condition 13(a)(i) to (vi) occur.

(f) The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.

(g) The Purchaser 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 inspect them, or, where the Purchaser’s right to possession has terminated, to recover them.

(h) Where the Company is unable to determine whether any Goods are the goods in respect of which the Purchaser’s right to possession has terminated, the Purchaser shall be deemed to have sold all goods of the kind sold by the Company to the Purchaser in the order in which they were invoiced to the Purchaser.

(i) If the Purchaser has not received a payment on the disposal of any of the Goods, it shall upon written request by the Company assign to the Company all or any of its rights against its customer in respect of that disposal.

(j) On termination of the Contract, however caused the Company’s (but not the Purchaser’s) rights contained in this condition 7 shall remain in effect.

8. PAYMENT

(a) Unless otherwise stipulated by the Company in writing, payment for the Goods shall be made in cleared funds, without set-off, counter-claim or deduction by not later than the twentieth day of the month following the date of invoice in pounds sterling or such other currency as the Company shall stipulate.

(b) Time shall be of the essence for the purposes of payment of all sums due to the Company hereunder.

(c) All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provisions.

(d) If the Purchaser fails to pay the Company any sum due pursuant to the Contract, the Purchaser shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 5% above the base rate from time to time of HSBC Bank Plc, whether before or after any judgment. Notwithstanding the foregoing, the Company may in the alternative claim interest under the Last Payment of Commercial Debts (Interest) Act 1998.

9. QUALITY

(a) The Company warrants that (subject to the other provisions of these conditions) on delivery the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.

(b) The Purchaser:-

(i) remains responsible for satisfying itself that the Goods ordered are appropriate to the end product into which the Goods are to be incorporated or for the use intended for the Goods and for ensuring that the terms of its order and any accompanying specification are complete and accurate; and

(ii) hereby undertakes to comply with such instructions as may be issued by the Company from time to time concerning any safety precautions or other measures required to be taken in order to ensure that the Goods do not cause damage or injury to any person (including the Purchaser) or his property, and in the event that such Goods are resold by the Purchaser, the Purchaser shall bring such instructions to the attention of the buyer thereof. The Purchaser shall indemnify the Company against any liability arising out of or in connection with the Purchaser’s failure to comply with its obligation in this condition 9(b)(ii), such indemnity to survive termination of the Contract.

(c) No oral statement or written representation made by any employee or agent of the Company at any time prior to any quotation or Contract shall be a term of such a quotation and/ or such Contract or deemed to be an inducement or collateral contract pursuant to which the Purchaser relied on such a quotation or entered into such contract.

(d) The Company shall not be liable for a breach of the warranty in condition 9(a) unless:

(i) the Purchaser gives written notice of the defect to the Company, and, if the defect apparent on normal visual inspection, within 3 working days of delivery, and in the case of a latent defect, within a reasonable time of the defect having become apparent; and

(ii) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Purchaser (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there.

(e) If the Purchaser fails to give notice of a rejection in accordance with condition 9(d)(i), it shall be deemed to have accepted such Goods.

(f) The Company shall not be liable for a breach of the warranty in condition 10(a) if:

(i) the Purchaser makes any further use of such Goods after giving such notice; or

(ii) the defect arises because the Purchaser failed to follow the Company’s oral or written instructions as to the storage, installation, use or maintenance of the Goods or (if there are none) good trade practice; or

(iii) the Purchaser alters or repairs such Goods without the written consent of the Company.

(g) Subject to condition 9(d) and condition 9(f), if any of the Goods do not conform with the warranty in condition 9(a) the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Purchaser shall, at the Purchaser’s expense, return the Goods or the part of such Goods which is defective to the Company.

(h) If the Company complies with condition 9(g) it shall have no further liability for a breach of the warranty in condition 9(a) in respect of such Goods.

10. INTELLECTUAL PROPERTY/COMPLIANCE WITH LAWS

(a) No warranty is given that the Goods (or any part of them) or the use of such Goods in any particular way or any printed information on technical data in respect of the Goods do not infringe any third party intellectual property rights in any part of the world.

(b) The Purchaser warrants that the designs and specifications (if any) supplied by it to the Company are complete and accurate and that such designs and specifications will not infringe any patent, registered design or other industrial or intellectual property right in the manufacture and sale of the Goods. The Purchaser shall indemnify the company against any liability arising out of or in connection with the breach of the warranty in this condition 10(b), such indemnity to survive termination of the Contract.

(c) The Purchaser shall be responsible for ensuring that its use of the Goods complies with all relevant statutes, statutory instruments and regulations having the force of law and shall indemnify the Company against any liability arising out of or in connection with the breach of its obligation in this regard, such indemnity to survive termination of the Contract.

(d) The Purchaser acknowledges the drawings and other documentation and information furnished to it by the Company have been or will be disclosed in confidence and the Purchaser will not without the prior written consent of the Company furnish or cause to be furnished copies of such drawings or documents or details of the information contained in such drawings or documents to any third party.

(e) The copyright and other intellectual property and industrial property in drawings and documents and other information (together „Intellectual Property“) furnished to the Purchaser by the Company is and shall remain the property of the Company or its supplier and the Purchaser shall not without the prior written consent of the Company (and where appropriate that of the copyright owner) alter such drawings or information in any way or make further copies of such drawings or information or use such drawings and/or information for any purpose other than that for which they are provided.

(f) In the event of any claim being made or action being brought against the Purchaser in respect of any infringement of any third party’s rights or alleged rights in respect of Goods sold under the Contract, the Purchaser shall not settle any such claim and shall forthwith inform the Company in writing. The Company reserves the right to request conduct of such claim and obtain the Purchaser’s assistance in this regard.

11. LIMITATION OF LIABILITY

(a) Subject to condition 4(c), condition 5 and condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Purchaser in respect of:

(i) any breach of these Conditions;

(ii) any use made or resale by the Purchaser of any of the Goods, or of any product incorporating any of the Goods; and

(iii) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

(b) All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

(c) Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence; or under section 2(3), Consumer Protection Act 1987, or for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability, or for fraud or fraudulent misrepresentation.

(d) Subject to condition 11(b) and condition 11(c):

(i) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price or the pro rated Contract price if delivery has been by instalments under condition 4(g); and

(ii) the Company shall not be liable to the Purchaser for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

12. FORCE MAJEURE

The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Purchaser (without liability to the Purchaser) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 180 days, the Purchaser shall be entitled to give notice in writing to the Company to terminate the Contract.

13. TERMINATION

(a) The Purchaser’s right to the manufacture of and/or possession of the Goods shall terminate immediately, and the Company shall, without prejudice to any other right of the Company, be entitled to immediately close any account(s) and suspend all future deliveries of Goods to the Purchaser and/or terminate any Contract (or part of any Contract) or all Contract(s) if:

(i) the Purchaser is a body corporate and the following events occur: a voluntary arrangement is approved, or an administration order is made, or a receiver or administrative receiver is appointed over any of the Purchaser’s assets or undertaking or a resolution or petition to wind up the Purchaser is presented (other than for the purposes of amalgamation or reconstruction) or if any circumstances arise which entitle the court or a creditor to appoint a receiver, administrative receiver or administrator, or to present a winding-up petition or make a winding-up order; or

(ii) the Purchaser, being an individual, has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors; or

(iii) the Purchaser (being an individual or body corporate) ceases to trade or suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Purchaser, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or the Purchaser

(iv) encumbers or in any way charges any of the Goods; or

(v) fails to pay the Company any monies due to it on their due date; or

(vi) any similar process to any of those in this condition 13 is initiated under the laws of any other jurisdiction; or

(vii) fails to take delivery of the Goods.

(b) On termination of the Contract, howsoever caused, the Company’s (but not the Purchaser’s) rights contained in the Contract and these conditions shall remain in effect.

(i) the Purchaser shall cease to use or have the benefit of any of the Company’s Intellectual Property and shall forthwith return to the Company any documents in its possession or control which contain or record any part of that Intellectual Property;

(ii) the Purchaser shall, if requested to do so by the Company, purchase from the Company all unused stocks of raw-materials in respect of the Goods at a price equal to their cost to the Company plus the Company’s reasonable administration fee for acquiring and storing the same and delivering the same to the Purchaser;

(iii) all payments payable to the Company whether due under the Contract or otherwise, shall become immediately due and payable.

14. NOTICES

(a) Any notice required or desired to be served pursuant to these Conditions shall be delivered by hand or sent by first-class post or facsimile

(i) in the case of notices to the Company, addressed to the Company Secretary at Elektron Technology plc, Broers Building, JJ Thomson Avenue, Cambridge CB3 0FA (01223 371 007)

(ii) in the case of notices to the Purchaser at the address and facsimile number stated on any purchase order or headed paper of the Purchaser or if the Purchaser is a company, at its registered office; or

(iii) in the case of notices to either party at such other address and/or facsimile number as it shall notify to the other in writing.

(b) Any notice sent by post aforesaid within and to destinations in the United Kingdom shall be deemed to have been received two days after the date of its dispatch, and any notice sent by facsimile shall be deemed received at 9 a.m. on the next working day (Saturdays, Sundays and public holidays excluded) after the dispatch of the same.

15. GENERAL

(a) Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.

(b) If any provision of the Contract or any condition or part of a condition herein is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract or condition and the remainder of such provision or condition shall continue in full force and effect.

(c) Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract and any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Purchaser shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

(d) The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

(e) This Contract and any dispute arising out of or 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.

(f) The parties to the Contract irrevocably agree, for the sole benefit of the Company that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual claims). Nothing in this condition shall limit the right of the Company to take proceedings against the Purchaser in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.

Elektron Technology UK Limited – Standard terms and conditions of sale