Terms & Conditions

STANDARD TERMS AND CONDITIONS FOR SALE OF GOODS OF SENS-TECH LIMITED 1 DEFINITIONS

In this document the following words shall have the following meanings:

1.1 “Buyer” means the organisation or person who buys Goods from the Seller;

1.2 “Goods” means the articles to be supplied to the Buyer by the Seller;

1.3 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;

1.4 “Standard Price” means the standard prices of the Goods maintained by the Seller as amended from time to time;

1.5 “Seller” means Sens-Tech Ltd., 18 The Avenue, Egham, Surrey, TW20 9AB, UK;

1.6 “Contract” means the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Terms and Conditions and the sales order acknowledgement;

1.7 “Incoterms® 2020” means the standardised set of international trade terms published by the International Chamber of Commerce in 2020;

1.8 “EXW” (Ex Works) has the meaning given to those rules in the Incoterms® 2020; 1.9 “FCA” (Free Carrier) has the meaning given to those rules in the Incoterms® 2020.

2 GENERAL

2.1

These Terms and Conditions shall apply to all contracts for the sale of Goods and services by the Seller to the Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been agreed by the Seller in writing. These Terms and Conditions will always override all Terms and Conditions sent by the Seller with purchase orders.

2.2

Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.

3 PRICE AND PAYMENT

3.1

The price shall be the Seller’s current Standard Price at the time of delivery or deemed delivery, or such other price as the parties may agree in writing. The price is exclusive of VAT or any other applicable costs. Carriage and insurance shall be paid for by the Buyer unless agreed otherwise.

3.2

For approved accounts (as notified by the Seller to the Buyer in writing), payment of the price of the Goods, any other applicable costs and VAT (where applicable) shall be due within 30 days of the date of the invoice, unless agreed an alternative payment terms in writing.

Otherwise, payment is required in advance of despatch of the Goods. 3.3

The Seller shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 4 percent per annum above the base rate of the Bank of England.

3.4

If payment of the price or any part thereof is not made by the due date, the Seller shall be entitled to:

3.4.1 require payment in advance of delivery in relation to any Goods not previously delivered and/or

3.4.2 refuse to make delivery of any undelivered Goods whether ordered under the contract or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery and/or

3.4.3 terminate the contract. 3.5

The Buyer shall make all payments due under the contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.

4 DESCRIPTION

Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.

5 SAMPLE

Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so as to constitute a sale by sample.

6 DELIVERY

6.1

Unless otherwise agreed in writing, delivery of the Goods shall take place at the address and on the date specified by the Seller on its order acceptance form. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.

6.2

The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the contract.

6.3

The Seller shall not be liable for any direct, indirect or consequential loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Seller’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the contract unless such delay exceeds [180] days.

6.4

Any liability of the Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Goods.

6.5

If the Seller is unable to deliver the Goods for reasons beyond its control, then the Goods shall deemed to be delivered and the Seller shall be entitled to place the Goods in storage until such times as delivery may be effected and the Buyer shall be liable for any expense associated with such storage.

6.6

The buyer will only be permitted to change requested delivery dates based on the following conditions:

  1. 6.6.1  No changes to delivery schedule within 6 weeks of delivery

  2. 6.6.2  All deliveries originally scheduled to be delivered by last Friday in the following March, to be

taken by this date.

6.6.3 No changes in delivery dates greater than 3 months later from original scheduled date but noting restriction of point 6.6.2 above.

7 RISK

The risk in the Goods shall pass to the Buyer on dispatch from the Seller’s (or its agent’s) premises. Where the Buyer chooses to collect the Goods itself, risk will pass when the Goods are entrusted to the Buyer or set aside for the Buyer’s collection, whichever happens first.

8 TITLE

8.1
Title to the Goods shall not pass to the Buyer until the earlier of:

8.1.1 the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and

8.1.2 the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 8.3.

8.2
Until title to the Goods has passed to the Buyer, the Buyer shall:

8.2.1 store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;

8.2.2 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery (including those Goods delivered under the EXW (Ex Works) or FCA (Free Carrier) rules (as applicable));

8.2.3 notify the Seller immediately if it becomes subject to any of the events listed in clauses 24.2.3 to 24.2.5 (inclusive); and

8.2.4 give the Seller such information as the Seller may reasonably require from time to time relating to the Goods.

8.3

Subject to clause 8.4, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Buyer resells the Goods before that time:

  1. 8.3.1  it does so as principal and not as the Seller’s agent;

  2. 8.3.2  title to the Goods shall pass from the Seller to the Buyer immediately before the time at

which resale by the Buyer occurs; and

8.3.3 the entire proceeds of sale or any insurance proceeds payable in respect of the Goods shall be held on trust for the Seller.

8.4
At any time before title to the Goods passes to the Buyer, the Seller may:

8.4.1 by notice in writing, terminate the Buyer’s right under clause 8.3 to resell the Goods or use them in the ordinary course of its business; and/or

8.4.2 require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them. In the event that the Goods are in the possession of a third party, the Buyer shall use its best endeavours to procure the consent and cooperation of such third party to facilitate repossession of the Goods by the Seller.

9 WARRANTY

9.1

Where the Goods have been manufactured by the Seller and are found to be defective, the Seller shall repair, or in its sole discretion, replace defective Goods free of charge within 12 months from the date of delivery, subject to the following conditions:

9.1.1 the Buyer notifying the Seller in writing immediately upon the defect becoming apparent;

9.1.2 the defect being due to the faulty design, materials or workmanship of the Seller.

9.2

Any Goods to be repaired or replaced shall be returned to the Seller at the Buyer’s expense, if so requested by the Seller.

9.3

Where the Goods have been manufactured and supplied to the Seller by a third party, the Seller shall endeavour to transfer to the Buyer the benefit of any warranty granted to the Seller in respect of the Goods.

9.4

The Seller shall be entitled in its absolute discretion to refund the price of the defective Goods in the event that such price has already been paid.

9.5

The remedies contained in this Clause are without prejudice to the other Terms and Conditions herein, including, but without limitation, Clauses 10 and 11 below.

10 LIABILITY

10.1

No liability of any nature shall be incurred or accepted by the Seller in respect of any representation made by the Seller, or on its behalf, to the Buyer, or to any party acting on its behalf, prior to the making of this contract where such representations were made or given in relation to:

10.1.1 the correspondence of the Goods with any description; 10.1.2 the quality of the Goods; or
10.1.3 the fitness of the Goods for any purpose whatsoever. 10.2

No liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of this contract where such term relates in any way to:

10.2.1 the correspondence of the Goods with any description; 10.2.2 the quality of the Goods; or
10.2.3 the fitness of the Goods for any purpose whatsoever. 10.3

All implied terms, conditions or warranties as to the correspondence of the Goods to any description or the satisfactory quality of the Goods or the fitness of the Goods for any purpose whatsoever (whether made known to the Seller or not) are hereby excluded from the contract.

11 LIMITATION OF LIABILITY

11.1

The restrictions on liability in this clause 11 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, statutory duty, restitution or otherwise.

Where any court or arbitrator determines that any part of Clause 10 above is, for whatever reason, unenforceable:

11.1.1 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance or the contract shall be limited to the contract price; and

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

11.2

Nothing contained in these Terms and Conditions shall be construed so as to limit or exclude the liability of the Seller for fraud, or for:

  1. 11.2.1  death or personal injury caused by negligence;

  2. 11.2.2  fraud or fraudulent misrepresentation; and

  3. 11.2.3  breach of the terms implied by section 25 of the Sale of Goods Act 1979.

11.3
Subject to clause 11.2, the following types of loss are wholly excluded:

  1. 11.3.1  loss of profits;

  2. 11.3.2  loss of sales or business;

  3. 11.3.3  loss of agreements or contracts;

  4. 11.3.4  loss of anticipated savings;

  5. 11.3.5  loss of use or corruption of software, data or information;

  6. 11.3.6  loss of or damage to goodwill (in each case, whether direct or indirect); and

  7. 11.3.7  any indirect or consequential loss.

11.4

Subject to clauses 11.2 and 11.3, the Seller’s total liability to the Buyer shall not exceed 100% of the price paid or payable by the Buyer to the Seller for the Product or Service to which the claim (or series of connected claims) relates.

12 INTELLECTUAL PROPERTY RIGHTS

All Intellectual Property Rights produced from or arising as a result of the performance of the contract shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.

13 FORCE MAJEURE

13.1

“Force Majeure Event” means an event, circumstance or cause beyond a party’s reasonable control including, acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic (including any continuation of COVID-19), terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, nuclear, chemical or biological contamination or sonic boom, collapse of buildings, fire, explosion or accident, any labour or trade dispute, strikes, industrial action or lockouts, non-performance by or supply constraints of suppliers or

subcontractors (including lack or shortage of, or increases in prices of, raw materials or other supplies), and/or any interruption or failure of utility service.

13.2

Neither party shall be in breach of the Contract nor liable for any delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from a Force Majeure Event. In such circumstances the affected party will promptly notify the other party in writing of the Force Majeure Event. Time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.

13.3

If, as a result of a Force Majeure Event, delivery of the Goods is delayed for more than 90 consecutive days:

13.3.1 the Seller may cancel the Contract on written notice to the Buyer, and shall not be liable for any loss or damage as a result of such cancellation or rescission; or

13.3.2 the Buyer may cancel the Contract without liability to the Seller, save that where the Goods have been specially obtained for the Buyer and in the Seller’s reasonable opinion there is no readily available market for them, the Buyer may not cancel the Contract and shall remain liable to pay the Seller for the full purchase price for the Goods.

14 RELATIONSHIP OF PARTIES

Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.

15 ASSIGNMENT AND SUB-CONTRACTING

The contract between the Buyer and Seller for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of the Seller.

16 WAIVER

The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.

17 SEVERABILITY

If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.

18 GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.

19 EXPORT CONTROL AND USE OF GOODS

19.1

The Buyer confirms that it will be the recipient of Goods to be delivered by the Seller. The Buyer agrees that the Goods and Services will not be used for purposes associated with any chemical, biological, nuclear weapons or missiles capable of delivering such weapons, or in support of any terrorist activity or any other military use, nor will they be re-sold if it is known or suspected that they are intended to be used for such purposes.

The sale, resale or other disposition of certain Goods and related technologies or documentation may be subject to the export control laws, regulations and orders of the United Kingdom and may also be subject to the export and/or import control laws and regulations of other countries. The Buyer agrees to comply with all such laws, regulations and orders and agrees that it shall not directly or indirectly sell, resell, export, re-export, or otherwise dispose of or deal with, any Goods to any country, destination or person to which the same is restricted or prohibited. The Buyer acknowledges its responsibility to obtain any required licence for the acquisition, carriage, use, export, re-export or import of the Goods. Failure to obtain such licence(s) shall not entitle the Buyer to withhold or delay payment of the price for the Goods. Any additional expenses or charges incurred by the Seller resulting from such failure shall be for the Buyer’s account.

19.2

The Buyer agrees that Goods sold by the Seller are not (unless otherwise specifically agreed in writing between the Seller and the Buyer) designed for use in life support, life sustaining or nuclear applications, or other applications or Goods for which a product failure may result in personal injury, death, or catastrophic property damage. If the Buyer sells or otherwise uses the Goods for such applications, or breaches its obligations relating to export restrictions, product use or misuses the Goods in any manner, the Buyer agrees that it does so completely at its own risk and shall indemnify The Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller resulting from such sale, use and/or misuse.

19.3

The Buyer shall provide to the Seller in a timely manner, end-user, end-use and other documentation, certifications and information as may be requested by the Seller at any time.

19.4

The Buyer shall maintain complete and accurate records concerning all actions taken by, on behalf of, or at the direction of the Buyer pursuant to this Agreement. Upon request from the Seller, the Buyer shall furnish the Seller with copies of all documents relating to the sale or export of the Goods.

20 ANTI-BRIBERY

20.1

The Buyer shall comply with all applicable laws, statutes, regulations, and codes relating to anti- bribery and anti-corruption, including the Bribery Act 2010, and shall ensure that it has in place adequate procedures to ensure compliance with such bribery laws to prevent bribery, and shall use all reasonable endeavours to ensure that all of its personnel, all others associated with it, and all of its subcontractors involved with the Contract so comply.

20.2

The expressions ‘adequate procedures’ and ‘associated’ shall be construed in accordance with the Bribery Act 2010 and documents published under it.

20.3

Without limitation to the above, the Buyer shall not make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and will implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.

21 MODERN SLAVERY

The Buyer shall comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including the Modern Slavery Act 2015.

21.1

The Buyer shall not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK.

21.2

The Buyer represents and warrants that it has not been convicted of any offence involving slavery and human trafficking; nor has it been the subject of any investigation, inquiry or enforcement proceedings regarding any offence or alleged offence of or in connection with slavery and human trafficking.

22 HEALTH AND SAFETY AT WORK

22.1

The Buyer shall be solely responsible for and shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller arising directly or indirectly from use of the Goods other than in accordance with the uses to which a competent engineer would put Goods of that description and specification or which may be contained in literature supplied by the Seller.

22.2

It is a condition of the Contract that all information supplied by the Seller about the use for which the Goods are designed and have been tested, about the results of any relevant tests and about conditions necessary to ensure that Goods will be safe and without risk to health when properly used, are publicised or displayed by the Buyer to those persons who will use the Goods.

23 CONFIDENTIALITY

23.1

Each party undertakes that it shall not at any time during the Contract, and thereafter, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 0.

23.2

Each party may disclose the other party’s confidential information:

23.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 23; and

23.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

23.3

Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

24 SUSPENSION AND TERMINATION

24.1

Without limiting its other rights and remedies, the Seller may suspend provision of the Products under the Contract or any other contract between the Buyer and the Seller if the Buyer becomes subject to any of the events listed in clauses 24.2.3 to 24.2.5 (inclusive), or the Seller reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under the Contract on the due date for payment.

24.2

Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if:

24.2.1 the Buyer fails to pay any amount due under the Contract on the due date for payment;

24.2.2 the Buyer commits any other material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of being notified in writing to do so;

24.2.3 the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

24.2.4 the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

24.2.5 the Buyer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

24.3

On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Products and/or Services supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt.

24.4

Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

24.5

Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect, including clauses 1, 7, 8, 12, 19, 20, 21, 22, 23, 24.3, 24.4 and 24.5.

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