Conditions of Sale Rudd Macnamara Limited

GENERAL

1. In these conditions

(a) Rudd Macnamara Ltd is called “the Company” and the individual, firm, company or other party with whom the Company contracts is called “the Customer”

(b) “goods” means the goods, articles and materials which are supplied by the Company pursuant to the Contract (as hereafter defined):

2. (a) Any quotation or estimate given by the Company is an invitation to the Customer to make an offer only and no contract shall come into existence unless and until the Company accept an order from the Customer on its acknowledgement of order form:

(b) Any contract between the Company and the Customer (“the Contract”) shall be subject to these Conditions and receipt of goods or services by the Customer shall be conclusive proof that the Customer has accepted these Conditions in the absence of any other express or implied acceptance to the exclusion of all other terms and conditions whether or not the same are referred to in any purchase order or any other document of the Customer.

PRICES

3. Unless otherwise provided in the Contract: -

(a) The price of the goods does not include the costs of packaging materials or carriage:

(b) The price of the goods and services is exclusive of Value Added Tax, which will be charged at the rate applicable at the appropriate tax point:

(c) Where the price has been quoted in the Company’s quotation or estimate based upon stated production runs and specific delivery periods, the Company reserves the right to vary the price if the Customer orders different quantities or requires delivery over a different period:

(d) The cost of any variation or modification in the design, specification, materials or drawings of the goods or services, requested by the Customer and agreed by the Company after the date of the Company’s acceptance of order shall be borne by the Customer.

DELIVERY AND RISK

4. (a) Delivery of the goods shall be made to the Customer at the place specified in the Contract or as subsequently agreed between the parties and the risk in respect of all goods shall pass to the Customer at the time of delivery. If no place for delivery is specified or agreed, delivery shall take place at the Company’s works immediately prior to loading for despatch to the Customer. Special notice is directed to the fact that in accordance with the provisions of Section 32 of the Sale of Goods Act 1979 delivery to a carrier will constitute delivery to the Customer:

(b) The Company shall be entitled to make delivery of the goods by instalments and invoice the Customer for each instalment despatched

(c) If the goods are lost of damaged before delivery to the Customer the Company undertakes (subject as provided below) to replace or (at its discretion) to repair free of charge any such goods and the time for delivery of the damaged or lost goods shall be extended for such period as the Company shall reasonably require for such replacement or repair. The foregoing undertaking of the Company is conditional upon: -

(i) The Customer giving written notice of the damage or loss with reasonable particulars thereof to the Company and to the courier (if other than the Company) within 3 days of the receipt of the goods or in the case of total loss within 10 days of receipt of the Company’s or carriers delivery advice or other notification of despatch: and

(ii) The Customer if requested by the Company and at the Customer’s cost returning any damaged goods to the Company’s works within one month of receipt thereof

(d) Save as expressly provided in this Condition, the Company shall not have any liability whatsoever for or in connection with any damage or loss of the goods in transit to the contracted place of delivery

TITLE

5. (a) Title to and property in the goods shall remain vested in the Company until the price of the goods and/or services comprised in this Contract and all other money due from the Customer to the Company on any other account has been paid or satisfied in full.

(b) Until the title and property pass to the Customer (in addition to any other rights or remedies) the Company may at any time without prior notice to the Customer enter upon any premises where the goods are with such vehicles and personnel as it considers appropriate to repossess and resell the goods if any of the events specified in Condition 15 shall occur.

PERFORMANCE

6. (a) The Company will use its reasonable endeavours to comply with any date or dates for despatch or delivery of the goods and for the supply of proofs or samples. Such date or dates are only statements of expectation and not binding. Failure to comply with such dates shall not constitute a breach of the Contract nor shall the Company be liable to the customer for any resulting loss or damage;

(b) If the Company is prevented or hindered from performing the Contract or any part thereof by any circumstances beyond its reasonable control further performance of the Contract shall be suspended for so long as the Company is so prevented or hindered provided that the performance of the Contract is suspended for more than 3 consecutive calendar months the Customer shall be entitled by notice in writing to the Company forthwith to terminate the Contract or to cancel any outstanding part thereof and in such circumstances the Customer shall pay at the Contract rate the goods and services supplied and materials used by the Company to the actual date of such termination. The Company shall not have any liability to the Customer for any direct or consequential loss or damage suffered by the Customer as a result of the Company’s inability to perform its obligation under the Contract by reason of any circumstances;

(c) Where the goods are delivered or services are supplied by instalments each such instalment shall be deemed to be sold or supplied under a separate contract to which these Conditions shall apply (mutatis mutandis) and save as provided in Condition 8 (b) no default in respect of any one instalment shall affect or prejudice due to performance of the Contract as regards any other instalments;

(d) When expedited delivery or completion is agreed to by the Company the Customer shall reimburse the Company for any overtime payment or other costs incurred;

(e) If performance of the Contract is suspended at the request of or delayed through default of the Customer including (without prejudice to the generality of the foregoing) lack of, incomplete or incorrect instructions or refusal to collect or accept delivery of the goods or service for a period of 14 days, the Company shall be entitled to payment at the Contract rate for services already performed, goods supplied or ordered and any other additional costs thereby incurred including storage insurance and interest PROVIDED THAT if the Customer fails to collect or accept delivery of the goods or any part thereof within 28 days of written notification from the Company that the goods are ready for collection or delivery, the Company shall be entitled (without prejudice to its other remedies under the Contract for such breach) to sell or at its option destroy the goods and apply the proceeds of sale thereof if sold and the scrap value if destroyed towards payment of all sums due to the Company under Contract;

(f) The Company shall be entitled without the prior approval of the customer to assign, sub-contract or sub-let the Contract or any part thereof, but the Customer shall not be so entitled without the prior approval of the Company.

ACCEPTANCE

7. Without prejudice to the Customer’s rights under Condition 11, the Customer shall be deemed to have accepted the goods as being in conformity with the Contract and shall be bound to pay for them, unless written notice of rejection thereof is received by the Company within 14 days of delivery. Save in all circumstances referred to in condition 11 goods accepted by the Customer cannot be subsequently be returned and any claim which the Customer might otherwise have shall be deemed to have been waived.

PAYMENT

8. (a) Unless the Contract otherwise provides the contract prices for the goods and/or services shall be payable in cash not later than the last day of the month following the month of delivery or supply of the goods and/or services:

(b)Where goods and/or services are delivered or performed by instalments, the Customer shall be obliged to pay for each instalment upon the terms set out in sub-paragraph (a) of this condition;

(d) Unless otherwise agreed in writing the Customer shall not be entitled to set off payment against any monies due to the company under the Contract, any amount claimed by or due to the Customer from the Company whether pursuant to the Contract or on any other account whatsoever:

(e) The Company shall be entitled to interest both before and after judgement on any part of the Contract price not paid by its due date from that date until actual payment at the rate of 3% per annum above the Base Lending Rate of Lloyds Bank PLC on the due date.

DRAWINGS AND SPECIFICATIONS

9. The Company gives no guarantee or representation that the goods will in all cases be identical with the Illustrations, weights and dimensions specified in its catalogues, sales literature, drawings or other documents due to improvements and modifications to the goods or their specifications that may be made from time to time and due to ink and dye variations. The Company will notify the Customer in writing of any material alterations to any specifications relating to the goods and the Customer shall be deemed to have accepted such alterations unless notice in writing to the contrary is received by the Company within 7 days of the Company’s notice to the customer;

CUSTOMER OBLIGATIONS

10. (a) The Company reserves the right to supply 10 per cent more or less than the exact quantity of goods ordered such overs and shortages to be charged for or deducted pro rata;

(b) (i) The Company shall be entitled to reject any materials supplied or specified by the customer which the Company in its judgement considers unsuitable. Additional costs incurred by the Company, if such materials are judged to be unsuitable, will be charged to the Customer;

(ii) Quantities of materials supplied by the Customer shall be adequate to cover normal spoilage

(c) The Company accepts no responsibility for the accuracy or suitability of patterns, designs, tools, drawings, particulars or specifications relating to goods which are supplied by the Customer and the Company shall be entitled to accept the same as being without defect. The Customer undertakes to indemnify the Company and to keep the Company fully and effectually indemnified against all actions, proceedings, claims, costs, loss, damage or expense whatsoever whether arising in contract or in tort which the Company may suffer or incur as a result of any defect in the goods whether due to quality, design, fitness for purpose or in any other way whatsoever unless the same is due directly to the negligence of the company, its employees or agents;

(d) The Customer represents and warrants to the Company that neither the goods not the manufacture thereof by the Company will infringe any patent, trade or service mark, copyright, registered design, design right or any other propriety right of any third party and the Customer further undertakes to indemnify the Company and keep the Company fully and effectively indemnified against all actions, proceedings, claims, costs, loss, damage or expense whatsoever in respect of any infringement by the Company of any patent, copyright, design, trademark or any other proprietary right which the Company may suffer or incur in connection with the execution and performance of the Contract and such indemnity shall extend to any amount including costs paid by the Company (upon legal advice) in settlement of any claim out of court.

WARRANTY

11. (a) Where any goods or services are shown to the reasonable satisfaction of the Company to be defective by reason of faulty materials or workmanship within a period of 6 months from the date of their original despatch of supply (fair wear and tear excluded) the Company shall at its sole option: -

(I) Deliver replacement goods and/or supply further services to the Customer free of charge; and/or

(II) Refund to the Customer the Contract prices of such goods and/or services; and/or

(III) Require the require the Customer to retain the goods and/or services and grant the Customer a reasonable allowance in respect of such defects.

PROVIDED that: -

1. The customer notifies the Company in writing within fourteen days of becoming aware of any such defect; and

2. If so, required by the Company all defective goods are first returned to the Company’s premises carriage paid by the customer;

3. The goods have been properly and correctly stored and/or used by the Customer; and

4. The liability of the Company under this paragraph (a)shall be accepted by the Customer in substitution for and to the exclusion of any other claims for direct loss which the Customer has or may have:

(b) The liability of the Company for any claim or claims other than those falling within paragraph (a) above for direct injury, loss or damage made by the customer against the Company whether in contract or in tort (including negligence on the part of the Company, its servants or agents) arising out of or in connection with any defect in the goods and/or services or any act, omission, neglect or default of the Company, its servants or agents in the performance of the Contract shall be limited to the value of the Contract

(c) The Company shall not be liable for any claims for indirect economic or consequential loss made by the Customer against the Company whether in contract or in tort (including negligence on the part of the Company, its servants or agents) arising out of or in connection with any such defect, act, omission, neglect or default referred to in subsection (b) of this clause.

(d) Nothing in these Conditions shall: -

(1) limit or exclude the liability or the Company in respect of death or personal injury resulting from the negligence of the Company, its employees or agents; or

(2) limit or exclude the respective rights and remedies of the Company and the Customer under the Unfair Contracts Terms Act 1977.

CUSTOMERS PROPERTY

12. All property supplied to the Company by or on behalf of the Customer which is held by the Company for the purpose of the Contract or in transit to or from the Customer, shall be deemed to be entirely at the Customer’s risk and the Company shall not be liable for any loss to such property unless it is due entirely to the negligence of the Company, its employees or agents. In no circumstances whatsoever will the company be liable for any consequential loss or damage arising therefrom. The Customer shall insure all such property for all risks.

LIEN

13. Without prejudice to any other rights and remedies which the Company may have under Contract, the Company shall in respect of all debts of the Customer have a general lien on all goods and property belonging to the Customer in its possession (whether worked on or not) and shall be entitled upon the expiration of fourteen days’ notice to the customer, to dispose of such goods or property as it thinks fit and to apply such proceeds of sale thereof towards the payment of such debts.

INSOLVENCY AND BREACH OF CONTRACT

14. If any one or more of the following events occur, are threatened or in the opinion of the Company are reasonably likely to occur;

(a) The Customer shall commit any breach of the Contract and shall fail to remedy such breach (if capable of remedy) within a period of thirty days from receipt of notice in writing from the Company, requesting such breach to be remedied;

(b) Any sum is not paid by its due date

(d) The customer (or where the Customer is a partnership any partner thereof) offers to make any arrangements with or for the benefit of its or his creditors or a petition or an order is made for the Customer to become bankrupt;

(e) The Customer (being a limited company) has an Administrative receiver or a Receiver and Manager appointed of the whole or any part of its undertaking property or assets or a petition is presented or an order is made or a resolution is passed or analogue proceedings are taken for the winding up of the Customer or for the appointment of an Administrator thereof;

The Company shall be entitled without prejudice to its rights hereunder, forthwith to suspend further performance of the contract and of any other contract between the Company and the Customer until the default has been made good or to determine the Contract or any other contract between the Company and the Customer or any unfulfilled part thereof or at the Company’s option to make partial supplies of goods and/or services. Notwithstanding any such termination, the Customer shall pay to the Company at the Contract rate for all work done, materials used and goods delivered up to and including the date of termination and shall in addition indemnify the Company against and resulting loss, damage or expense incurred by the Company in connection with the supply or non-performance of the contract including the cost of any materials, plant or tools used or intended to be used therefor and the cost of labour and other overheads including a percentage in respect of profit.

SEVERANCE

15. If at any time any part or parts of these Conditions is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted here from and the validity of the remainder shall not be affected or impaired thereby.

WAIVER

16. No waiver of any breach shall contribute a continuing waiver of that or any other breach of these conditions.

LAW

17. These conditions and each and every Contract made pursuant thereto shall be governed by English law and the parties irrevocably submit to the jurisdiction of the Law Courts