Terms and Conditions of Sale

TERMS AND CONDITIONS

These Chromalytic Terms and Conditions of Sale (“Terms”) along with the Service Exhibit 11M (“Exhibit”) and the terms indicated on the quotation govern the Sale of Products and Services.

1. Interpretation

In these Terms and Conditions (Terms) the following words and phrases shall have the following meanings:

1.1. “the Buyer” means the person, firm or company who purchases the Services from the Company;

1.2. “the Company” means Chromalytic Limited;

1.3. “Contract” means the contract between the Company and the Buyer which shall be deemed to incorporate these Terms;

1.4. “Services” means any standard support to any products to be supplied by the Company to the Buyer;

1.5. “Goods” means goods supplied as part of or in consequence of the Service to be supplied by the Company to the Buyer;

1.6. “Place of Delivery” means the place to which the Services are to be delivered;

1.7. “Product” means Chromalytic-supplied or third party hardware or consumable that is supported by the company;

1.8. In these Terms, reference to any statute or statutory provision shall be construed as a reference to such statute or statutory

provision as amended, modified, re-enacted or replaced from time-to-time.

2. The Contract

2.1. The Contract shall be on these Terms to the exclusion of all other terms and conditions, including any such terms and conditions that are purported to be included or applied by the Buyer.

2.2. No terms and conditions contained in the confirmation of order, purchase order or other document of the Buyer will form part of the Contract.

3. Delivery

3.1. Unless otherwise agreed in writing, the Place of Delivery shall be the Company’s premises and the Buyer shall take delivery within 7 days of the Company notifying the Buyer that the Services are ready for delivery.

3.2. Any dates specified by the Company for delivery of the Services are intended to be an estimate only. If no date is specified for delivery of the Services, delivery shall be within a reasonable time.

3.3. Time is deemed not to be of the essence unless agreed to in writing by the Company.

3.4. Subject to the other provisions of these Terms, the Company shall not be liable for any loss, whether direct or consequential, economic or loss of profits or otherwise, arising directly or indirectly out of any delay in the delivery of the Services nor will any delay entitle the Buyer to terminate or rescind the Contract unless the delay exceeds 60 days.
4. The Services

4.1. The Company undertakes to provide the services subject to payment at the standard labour and travel rates of the Company in force at that time, unless agreed to be charged at other rates by the Company in writing including but not limited to written quotations.

4.2. Except where included in contractual entitlement all parts fitted or supplied will be charged at the Company’s full list prices.

4.2. Should the Buyer request and the Company agrees to provide services additional to those specified in the Buyer’s original order, the fees for those additional services shall be mutually agreed between the parties, but otherwise for all purposes of this Agreement the additional services shall be deemed to be included within the definition of Services.

4.3. Where the Buyer purchases Goods from the Company the Buyer shall be liable for labour and travel to fit said Goods, except where such labour and travel form part of contractual entitlement from a valid current Service Contract.

4.4. The Buyer shall ensure that the equipment to be serviced, installed, qualified or repaired shall be available to the engineer on the agreed date of the service visit, and shall be located in an environment that is safe and reasonable for the service representative to undertake the service. The Buyer agrees that where these conditions are not met, then the services will not be delivered, and the Buyer will be charged in full for the service visit.

4.5. The Buyer agrees that site-specific inductions or other local training, delays due to security or site entry and completion of customer documentation such as (but not restricted to) quality or safety requests are not included in the Services, and shall be payable as an additional charge.

4.6. The Services shall be carried out by the Company with all reasonable skill and care, and in full compliance of relevant established current professional standards.

4.7. The Buyer shall indemnify the Company from all claims, actions or demands made by third parties against the Company, and all liabilities of the Company to third parties (collectively “Third Party Liabilities”) and from all damage, losses, costs, expenses and payments whatsoever suffered or incurred by the Company either directly or in relation to Third Party Liabilities in respect of (a) personal injury to or the death of any person and any loss or destruction of or damage to property (not attributable to any default or neglect of the Company or of any person for whom the Company is responsible) which shall have occurred in connection with the provision of the Services under this Agreement, (b) any defect in the Services (not attributable to any default in clause 4.9), and (c) any breach by the Buyer of any terms of this Agreement provided that the liability of the Buyer to the Company under this Agreement, including without limitation, this clause 4.9, shall be limited to a maximum amount of £2,000,000 in respect of any one incident or series of related incidents and a maximum amount of £2,000,000 in respect of all and any incidents (whether or not related) arising during the term of this Agreement.

4.8. The Company shall take out and maintain during the term of this Agreement an insurance policy, with a reputable insurance company upon terms which are sufficient to cover its liabilities under this Agreement, including without limitation, its liabilities under clause 4.9. The Company shall upon reasonable request produce to the Buyer a copy of the said insurance policy, and a receipt for the payment of the current premium.

4.9. The Buyer shall take out and maintain during the term of this Agreement an insurance policy, with a reputable insurance company upon terms which are sufficient to cover his liabilities under this Agreement, including without limitation, its liabilities under clause 4.7. The Buyer shall upon reasonable request produce to the Company a copy of the said insurance policy, and a receipt for the payment of the current premium. For the avoidance of doubt the Buyer shall be liable under all of the provisions of this Agreement, including without limitation, clause 4.9, whether or not they comply with the provisions of this clause 4.9.

4.10. The Company may use remanufactured or recovered Goods that are equivalent to new in performance where new parts are no longer available subject to agreement by the Buyer.

4.11. The Company shall promptly provide to the Buyer written reports on the discharge of its obligations under this Agreement as and when these may be reasonably requested.

4.12. All communications and all information supplied to or obtained by the Buyer in the course of or as a result of the discharge of their obligations under this Agreement and all information relating to any invention, improvement, report, recommendation or advice given to the Buyer by the Company in pursuance of its obligations shall be treated by the Buyer as confidential and shall not be disclosed by him to any third party or published without prior written consent of the Company, such consent not to be unreasonably withheld.

4.13. The Company undertakes that, in the event of his being unable personally to perform the Services in accordance with its obligations under this Agreement, it will provide a qualified alternative service provider (the “substitute”) to perform the Services in its place provided that the provision of the Substitute shall be under a subcontract between the Company and the Substitute and that the rights and obligations of the Company under this Agreement in relation to the Buyer shall not be affected, nor shall the Buyer be under an obligation to pay any fees to the Substitute for the provision by him of the Services.

5. Intellectual Property Rights.

5.1. All intellectual property and industrial property rights throughout the world in patentable and non-patentable inventions, discoveries and improvements, processes and know-how, copyright works and the like discovered or created by the Company in the course of or as a result of the discharge of its obligations under this Agreement shall vest in and be the absolute property of the Company. Upon the request of the Company the Buyer shall, at the Company’s expense, execute all documents and do all acts and things required to vest or perfect the vesting of such property rights legally and exclusively in the Company or any nominee or assignee of the Company.

6. Expenses.

6.1. The Buyer will reimburse the Company for all reasonable expenses incurred in the discharge of the Company’s obligations under this Agreement, provided that all such expenses will be subject to the prior written approval of the Buyer. Expenses are to be accounted for and reimbursement will be made against vouchers approved by the Buyer and in accordance with relevant standard Company procedure as from time to time established.

7. Miscellaneous.

7.1. For the avoidance of doubt both parties confirm that the Company enters into this Agreement as an independent contractor and that the company is not nor shall for any purpose be regarded as an employee of the Buyer.

7.2. Except as otherwise provided in this Agreement, all notices, instructions or other communications shall be in writing and may be made by facsimile message, by letter or other form of communication as agreed between the parties from time to time, and delivered to the requisite party at its trading address.

8. Risk in and Ownership of Goods and Products

8.1. Risk in the Goods supplied as part of the Services shall pass to the Buyer on delivery.

8.2. Ownership of the Goods shall not pass to the Buyer until the Company has received in full in cleared funds all sums due to the Company in respect of the Goods and all other sums which are or may become due to the Company from the Buyer on any account.

8.3. Until ownership of the Goods has passed to the Buyer, the Buyer shall:

8.3.1. hold the Goods on a fiduciary basis as the Company’s bailee;

8.3.2. store the Goods separately from all other goods of the Buyer or any third party in such a way that they remain identifiable as the Company’s property;

8.3.3. not destroy or deface any identifying mark on the Goods or their packaging;

8.3.4. maintain the Goods in satisfactory condition insured with the Company’s interest noted on the policy and hold any proceeds of such insurance on trust for the Company and not mix them with any other money.

8.4. Where the Buyer sends Products or Goods for performance of the Services at the premises of the Company, the Buyer agrees that ownership of the equipment or Goods shall pass to the Company at the expiry of 6 months from the date of receipt, and that the Company shall be able to sell, destroy or otherwise dispose of the equipment or Goods as it sees fit, and that no compensation, financial or otherwise, shall be due to the Buyer.

8.5. Risk in the Products shall always remain with the Buyer, and the Company shall not be liable for any losses or damage to the Equipment including during transit or shipping. The Company recommends that the Buyer purchase suitable insurance including for transit loss or damage from a reputable insurer, such insurance not being provided or implied to be provided by the Company.

9. Price

9.1. The price for the Goods shall, unless otherwise agreed, be the price set out on the date of delivery in the Company’s price list. The price for the Goods shall be exclusive of all costs of carriage and insurance and applicable VAT which the Buyer shall pay in addition. The Buyer shall pay such deposit as the Company shall direct.

9.2. The Company reserves the right to increase prices without notice.

9.3. The Company may increase the cost of Services including those carried out as part of a Service Agreement before or after commencement of the Service Agreement where delivery of the Service has not been physically completed at the Company’s sole discretion, and the Buyer agrees to pay the additional sum of the increased price before the Service will be delivered else the Buyer shall forefeit to right to the Service without refund of payments already made. This shall include but not be limited to price increases resulting from increased costs of parts or materials required to deliver the Service.

9.4. Any prices provided to the Buyer verbally or by email or otherwise in writing shall be for guidance only and not binding on the Company except where forming parts of a valid formal Quotation from the Company bearing a Quotation Number and within the period of validity of the Quotation, which shall in any case not exceed thirty days.

10. Payment

10.1. Subject to paragraph 9, payment of the price of the Goods shall be due 30 days from the date of the Company’s invoice for the Goods unless agreed or advised otherwise in writing by the Company. Payment shall not be deemed to have taken place until the receipt by the Company of cleared funds.

10.2. The Company reserves the right to impose alternative conditions of payment if the Buyer’s financial condition or payment record merits this change in the Company’s opinion.

10.3. The Buyer agrees to pay the Company interest of 8% above the current Bank of England base rate on all debts not discharged within 30 days from the date of the Company’s invoice, and that such interest shall be added to the debt and form parts of the debt owed by the Buyer to the Company in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, as amended.

10.4. The Company will discontinue performance of the Services if the Buyer fails to pay any sum due, or fails to perform under this or any other Company agreement, if after ten (10) days written notice the failure has not been cured.

11. Warranties

11.1. The Company warrants that the Goods are of satisfactory quality for a period of ninety days for Goods unless agreed otherwise by the Company in writing.

11.2. If the Buyer wishes to make a claim under this warranty, the Buyer shall give written notice to the Company within 30 days of the discovery of the defect and give the Company a reasonable opportunity to inspect the Goods in question.

11.3. The Company shall not be liable for any breach of warranty if the Buyer makes any further use of the Goods after giving such notice or alters or repairs the Goods without the agreement of the Company.

11.4. The Company’s liability under the warranty shall be limited to repairing or replacing the Goods in question or refunding the price of such Goods or Services.

11.5. The above warranties do not cover defects resulting from improper or inadequate maintenance, installation, repair or calibration performed otherwise that by the Company; Customer or third party supplied hardware or software; improper use or operation; abuse, negligence, accident, loss or damage in transit; or improper site preparation.

11.6. The warranties in these terms are exclusive and no other condition or warrant, whether written or oral, is expressed or implied. The Company specifically disclaims the implied conditions of satisfactory quality and fitness for a particular purpose.

12. Limitation of Liability

12.1. The Company’s liability in contract, tort or otherwise arising out of the subject matter of the Contract shall not exceed £1000 or the value of the order (whichever is higher) and the Company shall under no circumstances be liable to the Buyer for any consequential, indirect or economic loss or damages.

13. Force Majeure

13.1. If either party is subject to an event of Force Majeure, that is circumstances outside its reasonable control, including but not limited to war, fire, industrial disputes or civil commotion, it shall notify the other and the first party’s obligations under these Terms shall be suspended until it notifies the other party of the end of such event of Force Majeure.

14. General

14.1. If any part of these Terms is found to be void or unenforceable by any Court of competent jurisdiction, such part shall be severed from these Terms which will otherwise remain in full force and effect.

14.2. These Terms shall be governed by and interpreted according to English Law and the parties submit to the exclusive jurisdiction of the English Courts.

14.3. Any pre-existing faults are specifically excluded from the cover provided by this contract. The Company will, at the Buyer’s request, undertake remedial work to rectify such pre-existing faults, at the Buyer’s expense.

14.4. The Buyer may not terminate, alter, assign or transfer a Service Agreement.