P.P. PROFILES (WEST YORKSHIRE) LTD – TERMS AND CONDITIONS OF SALE

P.P. PROFILES (WEST YORKSHIRE) LTD (“the Seller”) CONDITIONS OF SALE

1. APPLICATION

1.1 These Conditions alone shall govern and be incorporated in every contract for the sale of goods made by or on behalf of the Seller with any customer (“the Buyer”). They shall apply in place of and prevail over any terms and conditions, (whether or not in conflict or inconsistent with these Conditions), contained or referred to in any documentation submitted by the buyer or in correspondence or elsewhere or implied by trade custom, practice or course of dealing unless specifically excluded or varied in writing by a director or other authorised representative of the seller and any purported provisions to the contrary are hereby excluded or extinguished.

1.2 Acceptance by the Buyer of delivery of the goods shall (without prejudice to condition 2 or any other manner in which acceptance of these Conditions may be evidence) be deemed to constitute unqualified acceptance of these Conditions.

1.3 If, subsequent to any contract of sale which is subject to these Conditions, a contract of sale is made with the same Buyer without reference to any conditions of sale or purchase, such contract however shall be deemed to be subject to these conditions.

2. QUOTATIONS AND ACCEPTANCE

2.1 A quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or revise the same at any time prior to the Sellers acceptance of the Buyers order.

2.2 The Sellers acceptance of the Buyers order (including telephone orders) shall be effective only when the Seller has accepted the Buyers order in writing.

3. PRICES

3.1 Unless otherwise stated all prices quoted are based on current material costs and operating costs (including wages) at the date of quotation. The Seller shall have the right at any time to withdraw any discount from its normal prices and/or revise prices to take into account of inflation and/or increases in costs including (without limitation) costs of any goods materials carriage labour or overheads the increase or imposition of any tax duty or other levy and any variation in exchange rates.

3.2 Unless otherwise specified VAT and any other tax or duties payable by the Buyer shall be added to the price.

3.3 In the event that the information given by the Buyer differs from that on which this contract is based and involves the alteration of that contract the Seller may increase the price quoted therein the cover any increase in cost that the alteration may incur and amend the delivery date.

3.4 If after the Seller has accepted an order the Buyer requires any alteration in the goods quoted for the costs of such alterations shall be paid by the Buyer to the Seller on demand.

3.5 Unless otherwise stated origination expenses (including the cost of acquiring or adapting machinery to the Buyers manufacturing requirements) shall be added to the price and may be charged separately prior to delivery of the goods.

4. TERMS OF PAYMENT

Subject (where appropriate) to Condition 7 – Export Sales

4.1 Payment of invoices shall unless otherwise agreed in writing be made in full without any deduction or set-off within 30 days EOM. Time of payment shall be of the essence of all contracts between the Buyer and the Seller to which these Conditions apply. The Seller reserves the right to suspend the provision of goods to the Buyer where any amounts are overdue under any contract with the Buyer until all such amounts have been paid.

4.2 In the case of special goods payment must be received before the commencement of manufacture.

4.3 Any extension of credit allowed to the Buyer may be changed or withdrawn at any time.

4.4 Interest shall be payable on overdue accounts at the rate of 2% over Bank base rate from time to time to run from the due date for payment until receipt by the Seller of the full amount whether before or after judgement such interest to accrue on a day-to-day basis.

4.5 If in the opinion of the Seller the credit-worthiness of the Buyer shall have deteriorated prior to delivery of the goods the Seller may require full or partial payment of the price prior to such delivery or the provision of security for payment by the Buyer in a form acceptable to the Seller.

4.6 Notwithstanding any purported contrary apportionment by the Buyer all payments made by the Buyer to the Seller shall be apportioned first to goods which have been re-sold by the Buyer and then to goods which remain the possession or under the control of the Buyer.

4.7 The Seller reserves the right at any time at its discretion to demand security for payment before continuing with or delivering any order.

5. DELIVERY

5.1 Delivery or despatch dates mentioned on any quotation, Order Acceptance form or elsewhere are approximate only and not of any contractual effect and the Seller shall not be under any liability to the Buyer in respect of any failure to deliver on any particular day or dates. Time for delivery shall not be of the essence of any contract to which these Conditions apply and shall not be made so by the service of any notice.

5.2 The Seller shall use all reasonable endeavours to deliver the goods by the date or dates agreed between the parties but the Buyer shall not be entitled to refuse delivery on account of any delay.

5.3 Delivery shall be at the Buyers premises unless otherwise stipulated or agreed by the Seller. The cost of delivery shall be included in the price but the seller shall make an additional charge for delivery in the United Kingdom otherwise than by its normal carrier or for express delivery. Unless agreed in writing the Buyer shall unload and inspect the goods immediately on their arrival on the Buyers premises. The buyer shall indemnify the Seller against any or all claims liabilities costs or expenses arising as a result of the Seller or its sub-contractors assisting the Buyer in the unloading, loading or other removal the goods from the point of delivery.

5.4 If the Buyer refuses or fail to take delivery of goods tendered in accordance with the contract or fails to take any action necessary on its part for delivery and/or shipment of the goods the Seller shall be entitled to terminate the contract with immediate effect, to dispose of the goods as the Seller may determine, and to recover from the Buyer any loss and additional costs incurred as a result of such refusal or failure (including with out limitation storage costs from the due date of delivery).

5.5 Unless otherwise expressly agreed the Seller may effect delivery in one or more installments. Where delivery is effected by installments each installment may be treated as a separate contract governed by these Conditions.

5.6 Section 32(2) of the Sale of Goods Act 1979 shall not apply. The Seller shall not be required to give the Buyer the notice specified in Section 32(3) of that Act.

6. RISK

6.1 Subject (where appropriate) to Condition 7 risk for the products shall pass on delivery.

6.2 Any property of the Buyer in or under the Sellers possession or control and all property supplied to the Seller on behalf of the Buyer shall be held by the Seller at the Buyers risk.

6.3 From the time of delivery until property in the goods passes to the Buyer in accordance with Condition 8 the Buyer shall insure the goods for their full value with a reputable insurance office. Upon request, the Buyer shall use reasonable endeavours to have the Sellers interest in the goods noted on the insurance policy. Until property in the goods passes to the Buyer the Buyer shall hold the proceeds of any claim of such insurance policy on trust for the Seller and shall forthwith account to the Seller with such proceeds.

6.4 If the goods are appropriated to the Buyer but kept at the Sellers premises at the Buyers request then the Seller shall have no responsibility in respect of the safety of the goods thereafter and accordingly the Buyer should insure the goods against such risks (if any) as it thinks appropriate.

7. EXPORT SALES

7.1 In any case where goods are sold CIF or FOB or on the basis of other international trade terms and meanings given to such terms in the .C.C. Incoterms (as revised from time to time) shall apply except where inconsistent with any of the provisions contained within these Conditions.

7.2 Unless otherwise agreed the price of any goods sold pursuant to an international supply contract (as defined by Section 26 of the Unfair Contract Terms Act 1977) shall be secured by an irrevocable letter of credit satisfactory to the Seller established by the Buyer in favour of the Seller immediately upon receipt of the Sellers Order Acceptance form and confirmed by an United Kingdom Bank acceptable to the Seller. The letter of credit shall be for a price payable for the goods (together with any tax or duty payable) to the Seller and shall be valid for at least 6 months or such longer period as shall have been estimated by the Seller for delivery. The Seller shall be entitled to payment on presentation to such United Kingdom Bank of the documents specified by the Seller.

8. TITLE

8.1 Notwithstanding delivery and passing on risk, the goods shall remain the property of the Seller until such time as the Buyer shall have paid to the Seller the agreed price (together with any accrued interest) and all other amounts owed by the Buyer to the Seller in respect of any other contract for the sale of goods.

8.2 Until property in the goods has passed the Buyer shall be in possession of the goods and holds them as bailee for and on behalf of the Sellers and in a fiduciary capacity and shall:
(a) not part with possession of the goods otherwise than in accordance with Condition 8.6;
(b) take proper care of the goods and take all reasonable steps to prevent any damage to or deterioration of them;
(c) keep the goods free from any charge , lien or other encumbrance and store the goods in such a way to show clearly that they belong to the Seller;
(d) notify the Seller forthwith upon the happening of any of the events set out in Condition 17.1; and
(e) give the Seller such information relating to the goods as the Seller may from time to time require.

8.3 The Seller reserves the right to reposes and re-sell the goods to which it has retained title and the Sellers consent to the Buyer’s possession of the goods and any right the Buyer may have to possession of the goods shall in any event cease.
(a) if any money owed by the Buyer to the Seller (whether in respect of the goods or otherwise) is not
paid to the Seller by the date it is due ); o
(b) upon the happening of any of the events set out in Condition 17.1 ; or
(c) if the Buyer commits a breach of any contract with the seller

8.4 The Buyer hereby grants an irrevocable right and license to the Seller and its servants and agents to enter upon all or any of the Buyer’s premises with or without vehicles during normal business hours for the purpose of inspecting and/or re-possessing goods to which it has retained title. This right and license shall continue to subsist notwithstanding the termination for any reason of any contract which is subject to these Conditions and is without prejudice to any accrued rights of the Seller under such contracts or otherwise.

8.5 The Buyer is licensed by the Seller to process goods to which the Seller has retained title in such fashion as it may wish and/or to incorporate them in or with any other products subject to the express condition that the new product or products or any other chattel whatsoever containing any part of the said goods shall become the property of the Seller and shall be separately stored and marked by the Buyer to show clearly that they belong to the Seller. The Seller shall hold the new product or products as trustee for itself and the Buyer and the Sellers interest as a beneficiary of the trust shall be equal to the total of all amounts owing by the Buyer to the Seller under any contract for the sale of goods.

8.6 Whilst the Buyer is in possession of the goods with the Sellers consent (but not otherwise) the buyer may in the ordinary course of its business sell or hire the goods or any new product or products produced with the Seller’s goods provided that;
(a) as between the Buyer and its sub buyer or customer the Buyer shall sell or hire the goods as principal and the Buyer shall not and shall not be empowered to commit the Seller to any contractual relationship with or without liability to the sub buyer or customer or any other person;
(b) as between the Seller and the Buyer, the Buyer shall sell or hire the goods in a fiduciary capacity as agent for the Seller; and
(c) notwithstanding any agreed period of credit for payment of the price of the goods the Buyer shall pay the proceeds of such sales or hiring to the Seller forthwith upon receipt. The Buyer acknowledges that as a consequence of its fiduciary relationship with the Seller it is under a common law duty to the Seller to hold the proceeds with any other monies or pay them into an overdrawn bank account, such common law duty being unaffected by the wholly independent of the terms of these Conditions. Failure by the Buyer to store the goods separately or to keep them in such a way that they remain identifiable as the property of the Seller does not prejudice the claim of the Seller to the resale proceeds.

8.7 The Buyer agrees immediately upon being so requested by the Seller to assign to the Seller all rights and claims which the Buyer may have against its sub-buyers or customers arising from such sales or hiring until payment is made in full as stated above.

8.8 Notwithstanding the provisions of this Condition 8 the Seller shall be entitled to bring an action against the Buyer for the price of the goods in the event of non payment by the Buyer by the due date even though property in the goods has not passed to the Buyer and/or shall have the right by notice to the Buyer at any time after delivery to pass property in the goods to the Buyer as from the date of such notice.

8.9 The Buyer shall not attach affix or annex the goods to land without the written consent of the Seller.

8.10 The Buyer shall make available to the Seller the Land Certificate for the purpose of effecting an entry in the Land Registration Legislation.

9. VARIATIONS IN QUANTITY

The Seller shall be deemed to have fulfilled its contractual obligations in respect of any delivery even though the quantity may be up to 10% more or less than the quantity specified in the contract and in such event the Buyer shall pay for the actual quantity delivered.

10. THIRD PARTY RIGHTS

10.1 The Buyer shall indemnify the Seller against any and all claims liabilities costs and expenses incurred by or made against the Seller as a direct or indirect result of the carrying out of any work required to be done on or to the goods in accordance with the requirements or specifications of the Buyer involving any infringement or alleged infringement of any rights of any third party

10.2 In respect of international supply contracts (as defined by Section 26 of the Unfair Contract Terms Act 1977) only, the Seller shall have no liability to the Buyer in the event of goods infringing or being alleged to infringe the rights of any third party. In respect of all other sales, if at any time any allegation of infringement of letters patent, copyright or design rights is made in respect of the goods or if the Sellers reasonable opinion and at its own expense;
(a) modify or replace the goods without detracting from overall performance thereof, so as to avoid the infringement; or
(b) procure for the Buyer the right to continue to use the goods; or
(c) re-purchase the goods at the price paid by the Buyer less depreciation at such rate as is applied by the Seller to its own equipment.

10.3 The Buyer shall notify the Seller forthwith of any claim made or action brought or threatened alleging infringement of the rights of any third party. The Seller shall have control over and shall conduct any such proceedings in such manner as it shall determine. The Buyer shall provide all such reasonable assistance as the Seller may request. The cost of any such proceedings shall be borne by the Buyer.

10.4 Where the Seller or its employees or agents design the goods pursuant to a commission from the Buyer (whether in consideration of an order or otherwise) then any copyright or design rights created in relation to the goods shall vest in the Seller and the Buyer agrees that it shall do any acts and execute any documentation required by the Seller to secure vesting of title to such copyright or design rights to the Seller.

10.5 The Seller is entitled to rely upon any test certificate issued by the provider of any material to the Seller be it a stockholder, manufacturer or otherwise and any liability which may arise in consequence of any defective material being provided to the Seller by any stockholder or manufacturer, shall be the liability of the stockholder or the manufacturer only.

11. LIABILITY

11.1 The Seller shall not be liable to the Buyer:
(a) for non-delivery unless a written claim is received by the Seller within 7 days from the date of the Seller’s invoice or advice note, whichever is the earlier;
(b) for shortages in quantity delivered in excess of those permitted by Condition 9 unless the Buyer notifies the Seller of any claim for short delivery within 7 days of receipt of any goods;
(c) for damage to or loss of the goods or any part of them in transit (where the goods are carried by the Seller’s own transport or by a carrier on behalf of the Seller) unless the Buyer shall notify the Seller of any such claim within 3 days of receipt of the goods or a scheduled date of delivery whichever shall be the earlier;
(d) for defects in the goods caused by fair wear and tear, abnormal or unsuitable conditions of storage or use or any act, neglect or default of the Buyer or any third party;
(e) for other defects in the goods unless notified to the Seller within 30 days of receipt of the goods by the Buyer or where the defect would be not apparent unreasonable inspection within 3 months of delivery.

11.2 Where liability is accepted by the Seller under Condition 11.1 the Seller’s only obligation shall be at its option to make good any shortage or non-delivery and/or as appropriate to replace or repair any goods found to be damaged or defective and/or to refund the cost of such goods to the Buyer.

11.3 The Seller shall not be liable for any loss, damage or liability of any kind suffered by any third party directly or indirectly caused by repairs or remedial work carried out without the Seller’s prior written approval and the Buyer shall indemnify the Seller against any and all claims and costs arising out of such claims to the extent that such repairs or remedial work have been performed by the Buyer or its agents.

11.4 The Seller’s aggregate liability to the Buyer whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstance exceed the cost of the defective, damaged or undelivered goods which give rise to such liability (as determined by net price invoiced to the Buyer) in respect of any occurrence or series of occurrences.

11.5 Subject to this Condition 11:
(a) all conditions warranties and representations expressed or implied by statute common law or otherwise in relation to the goods are hereby excluded;
(b) the Seller shall be under no liability to the Buyer for any loss damage or injury, direct or indirect, resulting from defects in design, materials or workmanship or otherwise however arising (and whether or not caused by the negligence of the Seller his employees or agents) other than liability for death or personal injury resulting from the Seller’s negligence;
(c) the Seller shall have no liability from any indirect or consequential losses or expenses suffered by the Buyer, howsoever caused, any including without limitation loss of anticipated profits, good will, reputation, business receipts or contracts, or losses or expenses resulting from third party claims.

11.6 The Seller’s prices are determined on the basis of the limits of liability set out in this Condition. The Buyer may by written notice to the Seller request the Seller to agree a higher limit of liability provided insurance cover can be obtained for such higher limit. The Seller shall effect insurance up to such limit and the Buyer shall pay upon demand the amount of any and all premiums. The Buyer shall disclose such information as the insurers shall require. In no case shall the Buyer be entitled to recover from the Seller more than the amount received from the insurers.

11.7 In the event that material is provided by the Buyer to the Seller, the Seller is entitled to rely upon the quality of the material provided and in the event of any defect in the material provided by the Buyer arising, no liability shall be attributable to the Seller either in negligence, or otherwise.

11.8 The Buyer shall indemnify the Seller against all claims costs and expenses in respect of any actual or alleged loss or damage arising out of the design construction manufacture supply of delivery of the goods sustained or alleged to have been sustained by the Buyer or by any third party whether a servant or agent of the Buyer or otherwise arising out of or being occasioned by the negligence branch of contract or statutory duty or otherwise of the Buyer his servants or agents after the Buyer has received the goods or any part thereof.

12. DESIGNS DRAWINGS AND CONFIDENTIALITY

12.1 Where the Seller prepares designs or drawings at the request of the Buyer the Buyer shall approve such designs and drawings in writing and until such approval has been received the Seller shall be under no liability to the Buyer and any time for delivery shall not begin to run.

12.2 Where the goods are manufactured to a design submitted by the Buyer the Seller shall be under no liability for the correct functioning of the goods.

12.3 In respect of any third party’s dealings with the goods the Buyer shall be responsible and undertake that the goods are safe and without risk to health when properly used and comply in all respects with all relevant statutes regulations and bye-laws and standards enforced at the date of delivery including without prejudice to the generality of the foregoing the Factories Act 1961 and the Health and Safety at Work Act 1974 and the Buyer shall supply in respect of the goods information about the use of them as complies with the Health and Safety at Work Act 1974 or any amendments
made thereto or changes or variation thereto at the date of this contract proper evidence of all tests
and examinations and research made in compliance with the provisions of that Act.

12.4 The Buyer’s order must be accompanied by sufficient technical information to enable the Seller to proceed with the order forthwith.

12.5 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 completely accurate and in accordance with the Buyer’s requirements and provided that the goods and materials supplied are in accordance with the Buyer’s designs standards and specifications the Seller shall not be responsible for the suitability or quality of the goods.

12.6 Unless otherwise agreed in writing any copyright or other industrial or intellectual property rights in all specifications drawings or other technical information supplied to the Buyer shall remain the property of the Seller and shall not form part of the contract. The Buyer shall not publish or communicate with a third party the content thereof nor any particulars of the goods supplied by the Seller without the previous consent in writing of the Seller.

12.7 Unless expressly agreed in writing by the Seller all drawings designs specifications and particulars of weights and dimensions submitted by the Seller are approximate only and the Seller shall have no liability in respect of any deviation from them.

13. PACKAGING

13.1 The Buyer shall meet the cost of any special packaging requested by the Buyer or any packaging rendered necessary by delivery by any means other than the Seller’s normal means of delivery. The Buyer shall unless otherwise agreed by solely responsible for the disposal of all packaging in accordance with all regulations (whether statutory or otherwise) relating to the protection of the environment.

13.2 The Seller shall be entitled to invoice the Buyer for the cost of all pallets and other returnable packaging material unless the same are returned to the Seller in good condition carriage paid within 30 days of the date of delivery.

14. LICENCES AND CONSENTS

If any licence or consent of any government or other authority shall be required for the acquisition, carriage or use of the goods by the Buyer the Buyer shall obtain the same at its own expense and if requested produce evidence of the same to the Seller on demand. Failure to obtain any licence or consent shall not entitle the Buyer to withhold or delay payment of the price. Any additional expenses or charges incurred by the Seller resulting from such failure shall be for the Buyer’s account.

15. FORCE MAJEURE

15.1 The Seller shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of goods by the Seller being prevented hindered delayed cancelled or rendered uneconomic by reason of circumstances or events beyond the Seller’s reasonable control (“force majeure circumstances”) including but not limited to act of God war riot strike lock-out trade dispute or labour disturbance accident break-down of plant or machinery fire flood storm difficulty or increased expense in obtaining workmen materials or transport or other circumstances affecting the supply of the goods or of raw materials by the sellers normal source of supply or the manufacture of the goods by the Seller’s normal means or the delivery of the goods by the Seller’s normal route or means of delivery.

15.2 In force majeure circumstances the Seller may in its sole discretion terminate any contract for the supply of goods pursuant to these Conditions or cancel delivery of goods to the Buyer or may, with the agreement of the Buyer, delivery goods at an agreed rate of delivery commencing after any suspension of deliveries.

15.3 If due to force majeure circumstances the Seller has insufficient stocks to meet all its commitments the Seller may apportion available stocks between its customers at its sole discretion.

16. SAMPLES

Any samples supplied to the Buyer are supplied solely for information and in no way import any express or implied conditions or warranties as to quality, description, fitness for purpose or satisfactory quality and the Buyer shall be deemed to have satisfied itself as to such matters prior to ordering the goods.

17. TERMINATION

17.1 If the Buyer (being an individual) enters into a voluntary arrangement or if a petition is presented for the making of a bankruptcy order against him or if he compounds with his creditors or if (being a company) an application for an order is made or a resolution is passed for the winding-up of the Buyer otherwise than for the purposes of amalgamation or reconstruction previously approved in writing by the Seller or if a meeting is called to approve the appointment of a liquidator to the Buyer or if a petition is presented to the Court for the appointment of a liquidator to the Buyer or if a receiver, manager, administrative receiver or an administrator is appointed or a petition is presented to the court for an appointment of an administrator to the Buyer or over any part of the Buyer’s undertaking or if circumstances arise which might entitle a court or a creditor of the Buyer to appoint receiver, manager, administrative receiver or administrator which might entitle the court to make a winding-up order or if the Buyer takes or suffers any similar or analogous action in consequence of debt or commits a breach of any contract between the Seller and the Buyer the Seller may without prejudice to any of its other rights stop any goods in transit and/or suspend further deliveries to the Buyer and/or exercise its rights under Condition 8 and/or notice in writing terminate any contract with the Buyer.

17.2 Upon termination of any contracts pursuant to Condition 17.1 any indebtedness of the Buyer to the Seller shall become immediately due and payable and the Seller shall be relieved of any further obligation to supply any goods to the Buyer pursuant to such contracts.

18. ASSIGNMENT

None of the rights or obligations of the Buyer under these Conditions may be assigned or transferred in whole or in part without the prior written consent of the supplier.

19. HEALTH AND SAFETY AT WORK ETC

The Buyer agrees to pay due regard to any information supplied by the Seller and relating to the use for which the goods are designed to have been tested or concerning conditions necessary to ensure that they will be safe and without risk to health at all times when they are being set, used, cleaned or maintained by any person at work, and the Buyer undertakes to take such steps as may be specified by the above information to ensure that as far as reasonably practicable the goods will be safe and without risks to health at all times as are mentioned above.

20. LIEN

The Seller shall be entitled to a general lien on all goods and property owned buy the Buyer in the Sellers possession (although the Buyer may have payed for the same in full) in satisfaction of the whole or part as the case may be of the unpaid price of any goods sold and delivered to the Buyer under any contract. The Seller shall be entitled to offset any sum or sums owing to it from the Buyer against any sums owed by the Buyer to the Seller.

21. HEADINGS

The headings of these Conditions do not form part of the Conditions and shall not effect their interpretation.

22. SEVERABILITY

If any of these Conditions is held to be invalid, illegal or unenforceable in any respect whether whole or part such invalidity , illegality or unenforceability shall not prejudice the effectiveness of the rest of these Conditions or the remainder of any part of a Condition affected.

23. WAIVER

Failure by the Seller to exercise or enforce any rights under any contract subject to these Conditions shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of such right at any time thereafter.

24. NOTICES

Any notice hereunder shall be in writing and be deemed to be duly given if delivered personally or by pre-paid first class post (airmail if to an address outside the United Kingdom) telex or telefax to the party concerned at its last known address. Notices delivered personally shall be deemed to have been given when delivered, notice sent by first class post shall be deemed to have been given seven days after despatch (fourteen days if given by airmail) and notices sent by telex or telefax shall be deemed to have been given on the date of despatch.

25. GOVERNING LAW

Any contract to which these Condition apply shall be governed by and construed in accordance with the Laws of England and the parties hereby submit to the exclusive jurisdiction of English Courts.