1. DEFINITIONS

a) “Seller” shall be CAWKWELL ENGINEERING LIMITED

b) “Buyer” shall be such person, firm or company as is so designated in any quotations, correspondence or Contracts relating to the goods in question.

c) “Contract” shall be the Contract for the purchase and sale of the Goods incorporating these conditions.

d) “Goods” shall be the subject matter of the Contract.

2. APPLICATION OF TERMS OF ACCEPTANCE

a) Subject to any variation under paragraph d) the Contact shall be on these conditions to the exclusion of all other terms and conditions (including and conditions which the Buyer purports to apply under purchase order, confirmation of order, specification or other documents.)

b) No terms and conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other documents shall form part of the Contact simply as a result of such document being referred to in the Contract.

c) Buyer acknowledges that it has not relied on any statement, promise or representation made by or on behalf of Seller which is not set out in the Contract.  Nothing in this condition shall exclude or limit Seller’s liability for fraudulent misrepresentation,

d) All quotations given and all order are accepted only upon the conditions of sale as set out herein unless expressly agreed by the Seller in writing and signed by an authorised representative of the Seller.

e) No quotation given shall constitute an offer for sale capable of acceptance of a quotation received from any Buyer shall be deemed to be an offer by the Buyer to buy goods subject to these conditions and shall require the Seller’s written acceptance before any Contract shall be deemed to have arisen.

f) Each accepted order shall constitute an entire and separate Contract to which these terms and conditions shall apply.

g) Where goods are to be supplied from stock, such supply is subject to availability of stocks at the date of delivery.

h) Any quotation is given on the basis that no Contract shall come into existence until Seller despatches an acknowledgement (verbal or written) of order to Buyer.   Any quotation is valid for 14 days only from its date, provided that Seller has not previously withdrawn it.

3. PRICE OF GOODS

a) Goods will be invoices at the prices stated in the Contract.

b) Where a fixed price has been agreed, Seller may increase the price, without notice, to the extent that the cost to Seller of producing or procuring the goods has increased.

c) There shall be added to the price any applicable V.A.T. and other tax or duty relating to manufacture, transportation, insurance, export or import, sale or delivery of the goods.

d) All goods are sold “Ex Works” unless otherwise stated.  Where the Seller agrees to deliver the goods other than at the Sellers premises, the Buyer shall pay the Sellers charges for packaging, loading, unloading, transport and insurance.

e) Where the goods are sold “Ex Works” or under other commercial terms, the definitions and rules in INCOTERMS 2000 shall apply. Except as expressly provided in the Contract.

f) Any alterations in design, specification or quantity of or timing for delivery of the goods ordered, if agreed to by the Seller at the request of the Buyer, shall entitle the Seller to adjust the Contract price.

g) The Seller may at any time prior to delivery, increase the price of the goods to reflect any increase to the Seller which is due to any factor beyond the control of the Seller, such as, without limitation, foreign exchange fluctuations, currency alteration or regulation or significant increase of labour, materials or other costs.

4. PAYMENTS

a) Unless otherwise expressly stipulated in these conditions or otherwise accounts are due for payment no later than 30 days from the end of the month following the month of invoice.

b) All payments shall be made by Buyer to Seller in full without any deduction or set off whatsoever.

c) If any payment is overdue Seller reserves the right to suspend any further deliveries and to charge interest on the amount due after as well as before judgement on a daily basis at the annual rate 2% above the Base Rate of Bank of England from time to time, applicable until the amount due (including interest) is paid.

d) Seller reserves the right at any time to demand full or partial payment before proceeding or proceeding further with an order.

e) The Seller reserves the right where genuine doubts arise as to a Buyers financial position to suspend delivery or performance of any order or any part or instalment without liability until payment has been provided.

f) Time for payment shall be of the essence.

g) All payments payable to the Seller under the Contract shall become due immediately on its termination despite any other provision.

5. DELIVERY

a) Unless otherwise agreed in writing any delivery date or period specified by Seller is an estimate only and Seller shall not be liable for any loss or damage sustained by Buyer as a result of failure to deliver on such date or within such period.  Where goods are to be sourced other than from stock, Seller cannot guarantee delivery dates but Buyer shall be entitled at any time to make a written request for delivery within a reasonable period.  If delivery cannot be effected by Seller within such period, Buyer shall be entitled to cancel the Contract.  In the event of cancellation Seller’s liability shall be limited to a refunding of any payments made by the Buyer.

b) Buyer shall supply Seller with all details necessary to allow Seller to make delivery.

c) Where drawings, specifications, instructions, materials and the like are to be supplied, Buyer shall supply the same in sufficient time to enable Seller to deliver the goods on any date or within such period specified or agreed.  If Buyer fails to provide required details, specifications etc or shall otherwise cause or request a delay in delivery of goods, Buyer shall pay, as part of the price, all storage, transportation and other relevant costs incurred as a result thereof, Seller shall not be liable for any delay in delivery or performance resulting from or arising in connection with any failure by the /buyer to provide drawings, specification, instructions, material and the like.

d) Seller reserves the right to make delivery by instalments and there Conditions shall apply to each instalment delivery.

6. CANCELLATION AND DEFERRAL

a) No order which has been accepted by the Seller may be cancelled by the Buyer except with the prior written consent of the Seller and subject to sub-paragraph b) of this condition.

b) If the Buyer cancels delivery of any order as part of the order, the Buyer shall, forthwith upon receipt of written notification from the Seller of amounts due, indemnity the Seller in full against all loss suffered and all costs and expenses incurred by the Seller in connection with such order or part order, including without limitation, any costs, charges, expenses or damages incurred or loss suffered by Seller in connection with or as a result of the termination of the Buyer’s order.

7. RISK/TITLE OF GOODS

a) Unless otherwise agreed in writing ownership of the goods shall not pass to the Buyer until payment for the goods and all other goods agreed to be sold by the Seller to the Buyer, payment for which is due and has been received by the Company in full (in cash or cleared funds.)  All risk in the goods shall pass to the Buyer if the goods are to be delivered at the Seller’s premises, at the time the Seller notifies the Buyer that the goods are ready for collection, and, if the goods are to be otherwise delivered, at the time of despatch from the Seller’s premises.

b) Until ownership of the goods passes to the Buyer, the Buyer shall hold the goods as bailee, shall store the goods separately so that they are identifiable as the property of the Seller and shall fully insure and protect but if the Buyer does so pledge or charge such goods, all moneys owing to the Seller by the Buyer shall become immediately due and payable.  Until ownership of the goods passes, the Seller is irrevocably authorised, without notice, to enter the premises where goods that are of the Seller are located to remove such goods, at the cost of the Buyer.

8. WARRANTY

a) Seller warrants that the goods shall be manufactured in accordance with the specification for such goods.  If any goods do not conform to that warranty Seller will at its option (i) repair or replace the goods found not to conform to the warranty; (ii) take such steps as Seller deems necessary to bring the goods into a state where they conform to the warranty; or (iii) take back the goods found not to conform to the warranty and refund the price of such goods at the pro rata Contract rate: PROVIDED THAT the total liability of the Seller 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 in no event exceed the purchase price of the goods and performance of any of the above options shall constitute an entire discharge of Seller’s liability under this warranty.

b) The foregoing warranty is conditional upon:-

I. Buyer giving written notice to Seller of the alleged defect within seven days of the time when Buyer discovers or ought to have discovered the defect’

II. Buyer affording Seller a reasonable opportunity to inspect the goods and, if so requested by Seller, returning the allegedly defective goods to Seller’s works carriage prepaid (subject to refund in the event that the claim is found to be justified) for the inspections to take place there;

III. No repairs or alterations have been carried out to the goods without the prior written approval of Seller;

IV. The goods have been installed, stored used and maintained property and carefully and in accordance with any instructions issued by seller; and

V. The goods being suited to the function for which they were used.

c) The warranty contained in paragraph (a) above does not apply to goods or any part thereof not manufactured by Seller.  In case of such goods or parts thereof, Seller will use responsible endeavour to pass on to Buyer the benefit of any guarantee, condition, warranty or servicing arrangement received by Seller from the supplier of such goods or parts but Seller shall be under no liability whatsoever for any defect in such goods or parts.

d) Save as provided above and to the fullest extent provided by law, all conditions and warranties, undertakings and representations express or implied as to the quality, fitness for purpose, merchantability, durability or otherwise are hereby expressly excluded.

e) All recommendations and advice given by or on behalf of Seller to Buyer as to the methods of storing applying or using the goods, the purposes to which the goods may be applied and the suitability of the goods in any manufacturing process or in conjunction with any other materials or for any other purpose are given without liability on the part of Seller, its servants or agents.

f) Seller shall not be liable to Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case direct, indirect or consequential or any claims for consequential compensation whatsoever (however caused) which arise out of or in connection with the Contract.

g) Nothing in these conditions excludes or limits the liability of the Seller:-

I. For death or personal injury caused by the Seller’s negligence;

II. Under section 2(3) Consumer Protection Act; or

III. For fraud or fraudulent misrepresentation.

9. DRAWINGS, INFORMATION AND INTELLECTUAL PROPERTY

a) The Seller is entitled to assume that all drawings, descriptions, specifications and other information supplied by the Buyer to the Seller, whether written or verbal, is in all respects complete, accurate and entirely suitable for the Seller’s requirements.

b) Unless otherwise expressly agreed, the seller shall have no responsibility for the performance, suitability or durability of any goods or any materials or workmanship comprised therein to the extent that the same is manufactured in accordance with the Buyer’s designs, drawings, standards or specifications.

c) Any unpatented information concerning Buyer’s products, methods, or manufacturing processes which the Buyer may not disclose to the Seller incident to the sale of the goods covered by an order acknowledgement shall be deemed to have been disclosed as part of the consideration hereunder (unless otherwise specifically agreed in writing.) and the Buyer agrees not assert any claim (other than a claim for patent infringement) against the Seller by reason of the Seller’s use or alleged use thereof.

d) The sale of goods covered by this order shall not expressly or impliedly grant to the Buyer any right or licence under any patent, or patent application, or other intellectual property right owned or controlled by the Seller or its affiliates, but the foregoing shall not limit in any way the Seller’s right to use or sell such goods.

e) Any drawings, specifications, designs, confidential records and information, and computer software or other technical information supplied to a Buyer by the Seller in connection with the Contract are provided on the express understanding that the Buyer will not give, loan, exhibit, or sell such drawings, specifications or technical information to any third party and that the Buyer will not use them in any way except in connection with the goods provided with the goods provided hereunder.  The ownership of all intellectual property rights relating to the goods and in all documents provided by the Seller shall remain vested in the Seller.

f) The Buyer shall indemnity the Seller against all loss, actions, costs (including the cost of defending and legal proceedings.) claims, proceedings, expenses and damages in respect of any infringements or alleged infringements of any patent, registered design, copyright, trademark or other industrial or intellectual property rights results from compliance by the Seller with the Buyer’s instructions, whether expressed or implied.

10. LOSS OR DAMAGE IN TRANSIT

11. INSOLVENCY

If the Buyer shall become insolvent or is deemed unable to pay its debts or make a voluntary arrangement or compounds with its creditors or commences or has proceedings commenced for an administration order, liquidation, or the appointment of a receiver or administrator over all or any part of its assets or the Seller reasonably believes that any such event is about to occur.

a) The Seller is irrevocably authorized, without notice, to enter the premises where the goods that are of the seller are located and to remove such goods, at cost to the buyer.

b) The Seller shall be entitled to cancel or suspend the Contract or any order in whole or in part by notice in writing, without prejudice to accrued rights and the price which have been delivered shall become immediately due and payable.

12. FORCE MAJEURE

The Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the goods by the Buyer (without liability to the Buyer) 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 120 days, the Buyer shall be entitled to give notice in writing to the Seller to termination the Contract.

13. GENERAL

a) No variation to these conditions shall be binding unless agreed in writing and signed on behalf of the Seller.

b) No waiver by the Seller of any breach of Contract by the Buyer shall be void unless it is in writing signed by the Seller and any waiver shall not be deemed to be a waiver of any subsequent breach of the same provision, or any other provision.

c) Any notice shall be made in writing, by letter or facsimile, addressed to the principal place of business of the other party, or such other address either party may notify to the other.

14. APPLICABLE LAW

The Contract shall in all respects be governed by and construed in accordance with English law and the Buyer hereby submits to the non-exclusive justification of the English Courts.