The Supplier and the Customer agree as follows:

1. Definitions and Interpretation

In this Agreement capitalized words are defined in this clause or in the clause in which they first appear:

Agreement” means these standard terms and conditions including any schedules and/or annexures;

Contract” means each contract for the supply of a particular Product(s), which is established through the Order and Supplier's acceptance of the Order. Supplier’s acceptance of the Order shall be communicated in writing and the Contract shall include without limitation the relevant invoice of Supplier and the payment and/or special terms contained on the back of or accompanied with the invoice;

Order” means the Customer's written request to purchase Products which, in each case, automatically incorporates the terms and conditions contained in this Agreement and such terms expressly override any terms of the Customer’s order form;

Prescribed Rate” means the lesser of (i) interest at a rate equal to the one month London Interbank Offered Rate (LIBOR) plus four per cent from the date of such notice until the date of actual payment or (ii) such maximum percentage allowable in accordance with any applicable law.

Product” means any goods or product to be supplied by Supplier to the Customer under this Agreement and as detailed in a Contract;

Purchase Price” means the purchase price of the Product(s) as set out in the Contract, payable in cleared funds by the Customer into the bank account designated by Supplier in the Contract;

Warranty” in respect of a particular Product(s) means the relevant warranty in accordance with clause 4.2 hereof;

In this Agreement where the context permits: masculine includes feminine and vice versa; singular includes plural and vice versa; references to a party include that party’s successors and assigns; reference to a statute or regulation includes all amendments and re-enactments; and headings are for convenience only and do not affect interpretation of this Agreement.

2. Scope of this Agreement

2.1 This Agreement governs and is to be read in conjunction with the applicable Contract detailing the Product to be supplied by Supplier to the Customer.

2.2 To the extent there is any conflict between the terms of a Contract and the terms of this Agreement then the terms of this Agreement shall prevail followed by the terms of the Contract. For the avoidance of doubt, the Customer shall not be able to specify any terms applicable to a Contract unless and until the same are documented through a signed addendum to this Agreement and no Customer terms specified in its own order form shall apply to or override anything set out in this Agreement or the relevant Contract.

3. Prices

3.1 Unless mutually agreed in writing by the parties, the Purchase Price and terms of payment of the Product shall be that set forth in the Contract. All prices shall be in US Dollars unless otherwise specified in the Contract. Foreign currency exchange fluctuations and bank charges shall not be Supplier’s responsibility and the Customer is required to pay all amounts stated in the Contract in full and without any deduction set-off or adjustment.

3.2 Upon failure of the Customer to pay any installment or part of the Purchase Price on any of the due dates (as specified in a Contract) in cleared funds into the bank account designated by Supplier, the Customer shall pay to Supplier interest on any outstanding sum calculated at the Prescribed Rate. Each subsequent payment made by the Customer shall be allocated first to discharge any interest for delay in payment and thereafter will be applied to the payment of the Purchase Price.

3.3 The Purchase Price is exclusive of any governmental or municipality taxes, duties, fees and levies. The Customer shall be solely responsible for payment of all taxes, duties, fees or levies of any kind whatsoever levied and the Customer shall indemnify fully, hold harmless and defend Supplier from and against any losses, liabilities or sanctions which Supplier may suffer or incur in relation to any such taxes, fees or levies.

4. Warranties

4.1 The each parties warrants that it:

a) has the right and authority to enter into this Agreement and the Contract; and

b) it shall carry out its obligations under this Agreement and any Contract with reasonable skill and care.

4.2 SUPPLIER MAKES NO WARRANTIES, EITHER EXPRESSED OR IMPLIED IN LAW. SUPPLIER SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE.

4.3 Supplier has the right, in its sole discretion upon written notice to revise, update, amend or otherwise modify the Warranty and any terms or conditions under the Warranty and such amended, updated or modified Warranty shall apply to all Contracts entered into thereafter, but shall not apply to Contracts entered into prior to the amendment, modification or update of the Warranty.

5. Risk and Delivery

5.1 Supplier shall use all reasonable endeavours to deliver the Product on the date specified in the Contract.

5.2 Delivery of the Product shall take place at the site specified in the Contract, however Supplier at its sole discretion may at the Customer’s request and cost, arrange for suitable transport to such other premises requested by the Customer and any increased costs of transport shall be borne by the Customer.

5.3 Risk in and responsibility for the Product shall pass to the Customer in in accordance with the Incoterm identified under the Contract.

6. Liability

6.1 It is expressly agreed that the entire liability of Supplier for any loss, costs, damages or expenses arising out of the Product, including from use or ownership of the Product, (regardless of whether the cause of action is in contract, tort, warranty, statute or otherwise) shall be limited to the supply of a replacement Product in accordance with clause 6.5 hereof. To the maximum extent permitted at law, Supplier accepts no liability for any loss or damage incurred by the Customer or anyone claiming through the Customer as a result of any loss of profit or any consequential, indirect or special damages including without limitation, loss of opportunity, damages for personal injury or damages related to lost revenue, increased costs or downtime costs.

6.2 Supplier is not liable for any delay or failure to perform or comply with any obligation under this Agreement and/or Contract to the extent such delay or failure is attributable to any act or omission by the Customer or its employees, agents or contractors (including without limitation any breach by the Customer of any obligation set out in this Agreement and/or Contract) or is otherwise due to an event set out in clause 13 hereof.

6.3 Supplier is not responsible for damage to property or for injury to any person arising from the installation, maintenance, management, repair and/or removal of the Product and the Customer hereby defends, indemnifies and holds harmless Supplier from and against any liabilities including attorney’s fees arising out of such damage or injury.

6.4 The Customer acknowledges and agrees that Supplier shall not be liable for any use that the Customer makes with respect to the Product and consequently Supplier shall not be liable with respect to any loss or damage suffered or incurred by the Customer due to claims from third parties resulting from use of the Product, and to the maximum extent permissible by law the sole liability of Supplier and the sole remedy of the Customer is as set out in clause 6.5.

6.5 The sole remedy of the Customer under this Agreement and/or any Contract for any defective Product supplied and/or any loss or damage resulting thereof shall be replacement of the defective Product in accordance with and on the terms and conditions set out in clause 4.2 and 4.3. All Warranty claims must be received by Supplier within 15 days of the date the Customer became aware of the circumstances giving rise to the defect or the date the Customer ought reasonably to have become so aware thereof, or Supplier shall have no liability whatsoever for such claim. 

1. Termination

1.1 Supplier may terminate this Agreement and/or any Contract immediately upon written notice to the Customer if:

a) the Customer breaches a material obligation under this Agreement and where such breach is capable of being remedied, does not remedy it within 30 days after written notice of breach is given to it; or

b) the Customer is dissolved or liquidated or involved in a statutory merger or de-merger or an order is made declaring the Customer bankrupt or insolvent, or granting a moratorium over repayment of the Customer’s debts;

1.2 Supplier may at any time immediately terminate a Contract upon written notice to the Customer in the event the Customer fails to make any payment by the due date under the Contract;

1.3 This Agreement does not bind the Customer to order any minimum quantities of the Product, however, the Customer may not withdraw or terminate any Order once it has been accepted by Supplier.

2. Consequences of Termination

8.1 In the event of partial delivery of the Product, termination shall not restrict nor remove the liability of the Customer to pay Supplier for such partial delivery of the Product provided up to and including the date of termination.

8.2 Notwithstanding the provisions of clause 8.1, in the event this Agreement and/or Contract isterminated early for any reason whatsoever, Supplier shall be entitled to forfeit any deposit payment paid by the Customer under a Contract.

3. Announcements

3.1 The Customer agrees and consents that Supplier may list the Customer as one of its clients in advertisements and on its website(s).

4. Assignment and Subcontracting

4.1 Supplier may subcontract its obligations under this Agreement and/or any Contract. The Customer may not assign or transfer a right or obligation under this Agreement or Contract without first obtaining written consent of Supplier. Where the Customer requests Supplier to work with a third party, whether or not as its subcontractor, Supplier accepts no liability for any loss or damage arising out of or in connection with goods or services provided by such third party.

5. Dispute Resolution

5.1 The parties will use all reasonable efforts to negotiate in good faith and settle any dispute that may arise out of or in relation to this Agreement and/or a Contract, or any breach of it.

5.2 If any such dispute cannot be settled amicably through negotiations at the level at which meetings are usually held, then any dispute arising out of the formation, performance, interpretation, nullification, termination or invalidation of this Agreement and/or Contract in any manner whatsoever shall be referred to and settled by arbitration in accordance with the provisions set forth under the LCIA Arbitration Rules (“Rules”) by 3 arbitrators appointed in compliance with the said Rules, further:

(a) the arbitration shall take place in London or such other venue as mutually agreed by the Parties in writing;

(b) the arbitration proceedings and award shall be conducted and documented in the English language;

(c) the arbitral award shall address the costs and expenses of arbitration and all matters related thereto, including, the allocation of such costs and expenses between the Parties;

(d) the award of the arbitrators shall be final and binding upon the Parties;

(e)where necessary, the Parties will submit to the non-exclusive jurisdiction of the relevant court for the purposes of ratifying any award made pursuant to arbitration proceedings conducted in accordance with this clause and/or may enforce through the New York Convention in any jurisdiction who is a signatory to that convention;

(f)the Parties will not challenge any arbitral award made pursuant to arbitration proceedings conducted in accordance with this clause; and

(g)the Parties will not object to or challenge any application to enforce any arbitral award made pursuant to arbitration proceedings conducted in accordance with this clause in any court and it will submit to the jurisdiction of that court for the purposes of those enforcement proceedings.

6. Confidentiality

6.1 The parties agree to treat as confidential any information which comes into their possession as a result of this Agreement and/or a Contract (whether directly or indirectly and regardless of its form) where such information relates to the business, sales, financial, marketing, other operations, products, software, services or customers of the other party (“Confidential Information”).

6.2 Either party may disclose the Confidential Information to a third party if and to the extent that it is required to do so by law, provided the receiving party gives notice of such requirement to the party who has disclosed the Confidential Information immediately after such requirement has arisen and prior to disclosing the Confidential Information to such third party.

6.3 The disclosing party retains title to, ownership of and all rights and control over the Confidential Information and, except as provided in this Agreement, no right or license to the Confidential Information is granted.

6.4 The parties agree to promptly return or destroy all Confidential Information belonging to the other party upon written request.

7. Force Majeure

7.1 Neither party shall be liable for any loss or damage suffered or incurred by the other party arising from the first party's delay in performing or failure to perform its obligations under this Agreement and/or Contract to the extent that such delay or failure results from any cause or circumstance whatsoever beyond the affected party's reasonable control, provided that the affected party notifies the other party as soon as reasonably practicable after becoming aware of a force majeure event and the manner and extent to which its obligations are likely to be prevented or delayed. Notwithstanding the foregoing, the occurrence of any force majeure event shall not effect or discharge or delay any payment obligations under any Contract.

7.2 If any force majeure event occurs, the date(s) for performance of the obligation(s) affected shall be postponed for as long as the force majeure event lasts provided that if any force majeure event continues for a period of or exceeding twelve (12) months, the affected party shall have the right to terminate this Agreement or Contract immediately on written notice to the non-affected party. Each party shall use its reasonable endeavours to minimise the effects of any force majeure event.

8. General

8.1 This Agreement is governed by and interpreted under the laws of England & Wales (without reference to its rules as to conflicts of law).

8.2 These standard terms and conditions cannot be amended except by way of specific addendum signed by corporate representatives of both parties.

8.3 Provisions of this Agreement from which it is contemplated by their nature or context are to survive termination, shall remain in full force and effect notwithstanding such termination.

8.4 If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, insofar as it is severable, it will be deemed omitted from this Agreement and will not affect the legality, validity and enforceability of the remaining terms.

8.5 The failure of either party to enforce or exercise any right pursuant to this Agreement does not constitute a waiver of such right and will not affect that party’s right later to enforce or exercise it.

8.6 The entire contractual relationship between the parties is formed by this Agreement, the Contract and all documents defined herein, which are signed by authorised representatives of both parties.

8.7 No person who is not a party to this Agreement, shall acquire any rights under it or be entitled to benefit from any of its terms even if that person has relied on any such term or has indicated to any party to this Agreement its assent to any such term.

8.8 A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.