Terms and Conditions of Sale

1. Basis of Sale

1.1 These Conditions are the only terms and conditions upon which [Pressac Communications Limited] of Glaisdale Drive West, Bilborough, Nottingham NG8 4GY (“the Company”) is prepared to deal with its customer (“the Buyer”) and they shall govern the contract between the Company and the Buyer for the sale and purchase of goods (“the Contract”) to the entire exclusion of any other express or implied conditions. These Conditions may only be modified by a variation in writing signed on behalf of the Company by a Director and no other action on the part of the Company (whether delivery of the goods or otherwise) shall be construed as an acceptance of any other conditions. These Conditions take precedence over any terms and conditions appearing on the Buyer’s order form, confirmation of order or other similar documents emanating from the Buyer.

1.2 In these Conditions, unless the context otherwise requires, “goods” means the goods which the Company is to supply to the Buyer under the Contract.

1.3 Subject to Condition 3.6, these Conditions (as modified in accordance with Condition 1.1, together with any matters referred to on the face of the Company’s quotation and/or acceptance of order) embody the entire understanding of the parties and supersede any prior promises, representations, undertakings or implications.

1.4 The Buyer may not cancel, defer or alter a Contract unless the Buyer notifies the Company in writing of its wish to cancel, defer or alter a Contract such written notice to be received by the Company no later than 30 days from the date on which the Contract was concluded under Condition 1.5 unless otherwise agreed in writing by the Company. If the Buyer cancels a Contract the Buyer shall indemnify the Company in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages charges and expenses incurred by the Company as a result of cancellation.

1.5 The Contract shall be concluded when the Company despatches the goods to the Buyer. Any quotation in whatever form given to the Buyer is given subject to these Conditions and does not constitute an offer to sell. Acceptance of delivery of the goods will be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.

2. Goods

2.1 The quality and description of the goods shall be either:

2.1.1 set out in the Company’s quotation; or

2.1.2 where there is a specification for the goods provided by the Buyer to the Company and agreed in writing between the Company and the Buyer, in that specification (the “Buyer Specification”).

2.2 All samples, drawings, descriptive matter, specifications, and advertising issued by the Company (or the manufacturer of the goods) 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 represented by or described in them. They will not form part of the Contract and this is not a sale by sample.

2.3 The Company reserves the right to make any changes to the design, specification, materials, finishes or methods of manufacture from time to time and, where proprietary or special parts are ordered by the Buyer, may substitute other reasonably similar parts for any such proprietary or special part which the Company considered to be unprocurable in sufficient time or procurable with difficulty or excess cost.

2.4 Where goods are being supplied to a Buyer Specification the Buyer shall keep the Company informed in writing of any changes in scientific and technical knowledge which could affect the safety of goods supplied.

2.5 Where the Company is complying with instructions given by the Buyer in respect of details of the manufacture of goods, the Buyer agrees to indemnify the Company against all costs, claims, demands, damages and liabilities incurred by the Company as a result of actions brought under the Consumer Protection Act 1987 which are attributable to such compliance.

2.6 The Buyer shall be responsible for:-

2.6.1 ensuring the completeness and accuracy of the order and any applicable Buyer Specification; and

2.6.1 ensuring the completeness and accuracy of the order and any applicable Buyer Specification; and

3. Quality

3.1 The Company warrants that goods shall either :-

3.1.1 comply with the description of the goods as set out in writing in any Buyer Specification; or

3.1.2 where no Buyer Specification exists, be free from defects in material and workmanship attributable to the Company;

for a period of 12 months from the date of delivery or the date of invoicing of goods whichever occurs first.

3.2 If any goods do not conform to the warranty in Condition 3.1, the Company will at its option :-

3.2.1 replace goods found not to conform to the warranty; or

3.2.2 take such steps as the Company deems necessary to bring goods into a state where they are free from such defects; or

3.2.3 take back goods found not to conform to the warranty and refund the appropriate part of the purchase price;

provided that the liability of the Company shall in no event exceed the purchase price of the goods and performance of any one of the above options shall constitute an entire discharge of the Company’s liability under the warranty in Condition 3.1, subject always to Condition 3.6.

3.3 Any goods which have been replaced will belong to the Company. Any repaired or replacement goods will be liable to repair or replacement under the terms specified in Condition 3.2 (but subject to Condition 3.4) for the unexpired portion of the 12 month period from the original date of delivery of the goods which have been replaced.

3.4 The foregoing warranty is conditional upon :-

3.4.1 the Buyer giving written notice to the Company of the alleged defect in the goods such notice to be received by the Company within seven days of the time when the Buyer discovers or ought to have discovered the defect and in any event within twelve months of delivery of the goods; and

3.4.2 the Buyer affording the Company a reasonable opportunity to inspect the goods and, if so requested by the Company, returning the allegedly defective goods to the Company’s works, carriage pre-paid, for inspection to take place there, any returns of allegedly defective goods to be made pursuant to the Company’s Return Material Authorisation Procedure. For the avoidance of doubt in the event of a conflict between these Conditions and the Company’s Return Material Authorisation Procedure these Conditions shall prevail; and

3.4.3 goods not having been altered or modified in any way whatsoever or not having been subjected to misuse, abuse or unauthorised repair; and

3.4.4 goods being properly installed and connected (unless the Company carried out such installation and connection); and

3.4.5 the Buyer complying with its obligations under this or any other contract made with the Company; and

3.4.6 goods having been under normal use, operation, maintenance and service; and

3.4.7 goods having been handled, operated, used and maintained in accordance with the Company’s instructions (if any); and

3.4.8 goods having been properly stored and handled (which shall include not being exposed to weather when this is not appropriate for the goods in question); and

3.4.9 goods not being normally consumed in operation nor having a normal life inherently shorter than the warranty period stated above or goods not being components which are normally consumed in operation nor which have a normal life inherently shorter than the warranty period stated above.

3.5 In the event of any breach of the Company’s express obligations under Conditions 3.1 to 3.4 above the remedies of the Buyer will be limited to damages.

3.6 The Company does not exclude its liability (if any) to the Buyer:

3.6.1 for breach of the Company’s obligations arising under Section 12 Sale of Goods Act 1979 or Section 2 Sale and Supply of Goods and Services Act 1982;

3.6.2 for personal injury or death resulting from the Company’s negligence;

3.6.3 under Section 2 (3) Consumer Protection Act 1987;

3.6.4 for any matter which it would be illegal for the Company to exclude or to attempt to exclude its liability; or

3.6.5 for fraud.

3.7 Except as provided in Condition 3.1 to 3.4, and subject always to Condition 3.6, the Company will be under no liability to the Buyer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or 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 like loss) howsoever caused arising out of or in connection with:

3.7.1 any of the goods, or the manufacture or sale or supply, or failure or delay in supply of the goods by the Company or on the part of the Company’s employees, agents or sub-contractors;

3.7.2 any breach by the Company of any of the express or implied terms of the Contract;

3.7.3 any use made or resale by the Buyer of any of the goods, or of any product incorporating any of the goods;

3.7.4 any statement made or not made, or advice given or not given, by or on behalf of the Company.

3.8 Except as set out in Conditions 3.1 to 3.4, and subject always to Condition 3.6, the Company hereby excludes to the fullest extent permissible in law all conditions, warranties and stipulations, express (other than those set out in the Contract or these Conditions) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Buyer.

3.9 Subject always to Condition 3.6, in the event that notwithstanding the foregoing provisions of this Condition 3 the Company is found liable for any loss or damage suffered by the Buyer, that liability shall in no event exceed the purchase price of the goods.

3.10 The Buyer acknowledges that the foregoing provisions of this Condition 3 are reasonable and reflected in the purchase price of the goods which would be higher without those provisions and the Buyer will accept such risk and/or insure accordingly.

4. Price and Payment

4.1 Unless otherwise agreed in writing, the price charged for goods shall be calculated in accordance with the Company’s price list in issue at the date of dispatch and shall be subject to value added tax and any other taxes, duties or levies from time to time imposed.

4.2 For the avoidance of doubt the Company reserves the right in its sole discretion to vary prices given in any quotation issued prior to the Buyer placing an order on that quotation.

4.3 Without prejudice to Condition 4.1 and Condition 4.2 the Company shall be entitled to increase the price charged for goods to cover standard lead times and extra expenses incurred as a result of the Buyers instructions or lack of instructions (which shall include instructions that the order shall be expedited to less than the Company’s standard lead times).

4.4 Payment will be made to the Company by the Buyer net monthly unless otherwise agreed in writing.

4.5 If any payment that is to be made by the Buyer to the Company is overdue, interest will be chargeable thereon (both before as well as after judgement) on a day to day basis at the same annual rate as is prescribed from time to time pursuant to Section 6 Late Payment of Commercial Debts (Interest) Act 1998, until the sum due is paid.

4.6 Without prejudice to the Company’s rights under Condition 4.5, where any sum owed by the Buyer to the Company under the Contract or any other contract is overdue the Company may cancel or suspend any deliveries of goods due to be made to the Buyer until arrangements as to payment or credit have been established which are satisfactory to the Company.

4.7 Payment of the price shall be made by the Buyer in pounds sterling or any other currency agreed with the Company by transfer to such United Kingdom bank account as the Company may from time to time notify to the Buyer.

5. Taxes

The Buyer shall be liable for and shall pay all taxes and charges imposed by any taxing authority relating to the purchase, ownership, possession, use, operation or relocation of goods purchased from the Company except any taxes based on the Company’s net income. All such applicable taxes shall be invoiced to and payable by the Buyer in addition to the price of goods, unless the Buyer provides the Company with a Tax Exemption Certificate or equivalent acceptable to applicable taxing authorities.

6. Right of Set-Off

6.1 The Company reserves the right to set-off any sums owed by the Company to the Buyer against any sums due from the Buyer to the Company.

6.2 The Buyer will have no right of set-off statutory or otherwise.

7. Lien

The Company will (without prejudice to any other remedy available to it) have in respect of all unpaid debts due from the Buyer a general lien on all property of the Buyer in the possession of the Company for whatever purposes and whether worked upon or not and be entitled on the expiration of not less than 14 days notice in writing to the Buyer to dispose of such property and to apply the proceeds towards the satisfaction of such debts.

8. Delivery

8.1 Unless otherwise expressly agreed in writing, delivery of each consignment of goods shall be made to the place, and in the manner, designated in writing by the Buyer when placing the order, provided that the Company shall be entitled to withhold delivery of the goods until the Buyer has paid all sums due to the Company hereunder.

8.2 Unless otherwise agreed, the price quoted for goods by the Company shall be exclusive of the costs of delivering the same for which the Company shall invoice the Buyer separately. Such charges shall include the costs of freight and insurance and the Company’s handling charge.

8.3 The Company will use reasonable endeavours to deliver each of the Buyer’s orders for the goods by the time specified by the Company in its quotation and if no times are specified then within a reasonable time but the time of delivery will not be of the essence. If, despite those endeavours, the Company is unable for any reason to fulfil any delivery on the specified date the Company will be deemed not to be in breach of the Contract nor (for the avoidance of doubt) will the Company have any liability to the Buyer for 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 like loss) howsoever caused (including as a result of negligence) by any delay or failure in delivery. Any delay in delivery will not entitle the Buyer to cancel the order or the contract.

9. Notification of Loss, Damage or Non-Delivery of Goods

The Company will repair or replace, free of charge, goods damaged or lost in transit or not delivered where delivery has been made by the Company’s carrier, provided the Buyer shall advise any carrier and the Company in writing (otherwise than by a qualified signature on the carrier’s delivery note) of such damage or loss or non-delivery:-

9.1 in the case of partial loss or damage, or non-delivery of any separate part of a consignment, within 3 days of the date of delivery of the consignment or part consignment; or

9.2 in the case of non-delivery, or total loss or damage, of the whole consignment, within 14 days of the scheduled delivery date.

In addition, in the event of goods being damaged on receipt the Buyer shall also endorse the carrier’s delivery note accordingly.

10. Discrepancies in Delivery

Claims for discrepancies between goods described as having been packed and those received in the package will only be considered if the packing slip is returned to the Company within 10 days of receipt of goods

11. Force Majeure

The Company shall have the right to cancel or delay delivery or to reduce the volume of goods delivered if it is prevented from or hindered in or delayed in manufacturing or delivering (whether by normal routes or other means) goods through any circumstances beyond its reasonable control including (but not limited to) a failure by the Company’s supplier to supply or deliver goods to the Company, strikes, lock-outs or other industrial action, accident, war, fire, reduction in or non-availability of power and manufacturing plant, tools or machinery or shortage or non-availability of raw materials from normal sources or routes of supply.

12. Risk and Property

12.1 The risk in goods shall pass to the Buyer upon delivery of goods to the Buyer or any carrier acting on the Buyer’s behalf.

12.2 The property in goods shall not pass to the Buyer until the full price of goods and goods which are the subject of any other contract between the Buyer and the Company is paid.

12.3 Until such time as the full price for goods has been paid:-

12.3.1 they shall be held by the Buyer in a fiduciary capacity and stored by the Buyer at its premises in such a manner that they are clearly identifiable as goods of the Company and shall be kept separate from any other goods whether or not supplied by the Company;

12.3.2 they shall be handed over to the Company on demand and the Company shall be entitled to retake possession of them without prejudice to any of its other rights against the Buyer and the Company is hereby granted a licence to enter into the Buyer’s premises for the purpose of recovering goods; and

12.3.3 the Buyer must not destroy, deface or obscure any identifying mark or packaging on or relating to the goods and will maintain the goods in satisfactory condition insured for their full price against all reasonable risks.

12.4 If the Buyer fails to pay for goods in accordance with these Conditions the Company shall have the right to bring an action against the Buyer for the price of goods at any time notwithstanding that property in goods has not passed to the Buyer.

13. Drawings and Descriptions

All drawings, photographs, illustrations, specifications, performance data, dimensions, weights and the like, whether contained in the Contract or made by way of representation, have been provided by the Company in the belief that they are as accurate as reasonably possible, but they do not constitute a description of goods, shall not be taken to be representations by the Company, and are not warranted to be accurate.

14. Intellectual Property Rights

14.1 In these Conditions, “Intellectual Property Rights” shall mean all intellectual and industrial property rights including patents, know how, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, rights to prevent passing off for unfair competition, copyright, database rights, topography rights and any other rights in any inventory, discovery or process in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions thereof.

14.2 In these Conditions, unless the context otherwise requires, “Group Company” means any company which is, in relation to the Company, its holding company or its subsidiary or a subsidiary of its holding company. “Holding Company” and “Subsidiary” will have the meanings attributed to them in section 1159 of the Companies Act 2006.

14.3 The Buyer acknowledges that all Intellectual Property Rights used by or subsisting in the goods are and shall remain the sole property of the Company or any Group Company (as the case may be) save where such goods have been produced by the Company in accordance with a Buyer Specification, in which case the Buyer shall own all Intellectual Property Rights within the Buyer Specification.

14.4 The Company, or any Group Company (as the case may be), shall retain the Intellectual Property Rights in all documents supplied to the Buyer in connection with the Contract and it shall be a condition of supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of the Company.

14.5 No right or licence is granted to the Buyer in respect of the Intellectual Property Rights of the Company or any Group Company (as the case may be), except the right to use or re-sell the goods in the Buyer’s ordinary course of business.

14.6 The Buyer will not without the Company’s prior consent allow any trade marks of the Company or any Group Company or other words or marks applied to the goods to be obliterated, obscured or omitted nor add any additional marks or words.

14.7 The Company will not be liable to the Buyer where goods produced by the Company to a Buyer Specification infringe the Intellectual Property Rights of a third party and the Buyer shall indemnify the Company against all actions, costs, claims, demands, damages and liabilities for or in respect of any proceedings brought against the Company concerning any such alleged infringement. The Buyer shall immediately notify the Company upon receiving details of any allegation of any infringement.

15. Product Literature

Illustrations, leaflets, advertisements and drawings or any other material issued by or on behalf of the Company are not binding as to detail and the Buyer agrees and acknowledges that in entering into the Contract the Buyer has not relied on any statement of opinion or representation that may have been made by the Company in any of the materials specified in this Condition 15. Such matters shall not form part of what would be admissible as evidence in any proceedings by or against the Company.

16. Confidentiality

16.1 All technical and commercial information, documentation and know-how of any kind supplied by the Company to the Buyer (“Information”) shall be treated by the Buyer as confidential and not disclosed to any third party without the Company’s prior written consent. This obligation does not apply to Information which:-

16.1.1 is or becomes publicly available other than as a result of an act of the Buyer, its employees or contractors; or

16.1.2 is developed independently by the Buyer without reference to information produced to it by the Company.

16.2 The Buyer shall take all steps necessary to ensure that its employees and contractors comply with these obligations of confidentiality.

17. Termination

17.1 The Company may by notice in writing served on the Buyer terminate the Contract forthwith if the Buyer:

17.1.1 is in material breach of any of the terms of the Contract and where the breach is capable of remedy, the Buyer fails to remedy such breach within 30 days of service of a written notice from the Company specifying the breach and requiring it to be remedied;

17.1.2 should become bankrupt or insolvent (which terms include without limitation becoming subject to a voluntary arrangement, having a receiver manager administrator or administrative receiver appointed over its assets or undertaking, being wound up or having petitions presented for its winding up, or having a bankruptcy order made against it) or enters into any arrangement with its creditors or take or suffer any similar actions in consequence of a debt;

17.1.3 ceases to trade or appears in the reasonable opinion of the Company likely or is threatening to cease to trade;

17.1.4 suffers the equivalent of any of the foregoing under the jurisdiction to which the Buyer is subject.

17.2 The termination of the Contract howsoever arising is without prejudice to the rights, duties and liabilities of either the Buyer or the Company accrued prior to termination and the conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.

17.3 The Company will be entitled to suspend any deliveries otherwise due to occur following service of a notice under Condition 17.1 until either the breach is remedied or the Contract terminates whichever occurs first.

17.4 On termination of the Contract the Company will be entitled to recover the possession of any goods for which payment in full has not been received.

18. Export terms

18.1 In these Conditions “Incoterms” means 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. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.

18.2 Where the goods are supplied for export from the United Kingdom, the provisions of this Condition 18 shall (subject to any special terms agreed in writing between the Buyer and the Company) apply notwithstanding any other provision of these Conditions.

18.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the goods into the country of destination and for the payment of any duties on them.

18.4 Unless otherwise agreed in writing between the Buyer and the Company, the goods shall be delivered ex-works and the Company shall be under no obligation to give notice under Section 32(3) Sale of Goods Act 1979.

18.5 The Buyer shall be responsible for arranging for testing and inspection of the goods at the Company’s premises before shipment. The Company 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.

18.6 Payment of all amounts due to the Company shall be made either by irrevocable letter of credit opened by the Buyer in favour of the Company and confirmed by a bank acceptable to the Company or by other payment arrangements agreed with the Company.

19. General

19.1 These Conditions shall be governed by English law and the Company and the Buyer subject themselves to the non-exclusive jurisdiction of the English Courts.

19.2 If any of the above Conditions shall be found at any time hereafter to be invalid such invalidity shall in no way prejudice or affect the remainder of the Conditions which shall continue in full force and effect.

19.3 The failure to exercise or delay in exercising a right or remedy under these Conditions shall not constitute a waiver of the right or remedy or a waiver of any further right or remedy and no single or partial exercise of any right or remedy under these Conditions shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.

19.4 Any notice to be given under these Conditions shall be delivered personally or sent by first class pre-paid post addressed to the recipient at its registered office (or such other address as may have been notified as the address appropriate for the receipt of notices). The notice will be deemed to have been duly served if delivered by hand at the time of delivery or if delivered by first class post 72 hours after being posted.

19.5 The Company may assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract.

19.6 The Contract is personal to the Buyer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without the Company’s prior written consent.

19.7 The Company and the Buyer do not intend that any of these Conditions or any terms of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any other person.

Note : The Company’s prices are calculated on the basis that the above Conditions will apply. Buyers requiring prices to be quoted on a different basis should inform the Company.