TERMS AND CONDITIONS OF SALE

1 INTERPRETATION

(1)    In these conditions the following words have the following meanings:
(i)   “Business Day” - a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
(ii)   "the Company" - Cambridge Nanotherm Ltd (Company number 07437742) whose registered office is at: Homefield Road, Haverhill, Suffolk, CB9 8QP
(iii)  "the Customer" - The person or Company who accepts a quotation of the Company for the sale of the Goods or whose order for the Goods is accepted by the Company.
(iv)  "Force Majeure"- In relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, any strike, lock-out or other industrial action).
(v)   "Goods"- The goods (including any instalment of the goods) which the Company is to supply in accordance with these Conditions.
(vi)  "Intellectual Property Rights" - Patents, registered and unregistered designs, copyright, and all other intellectual property protection wherever in the world enforceable.
(vii)  "Conditions" - The standard terms and conditions of sale set out in this document.
(viii) "Contract" - A contract between the Company and the Customer for the sale and purchase of the Goods in accordance with these conditions.
(ix)  “Order” - The Customer's order for the Goods, as set out in the Customer's purchase order.
(x)   “Specification” - Any specification for the Goods, included any related plans and drawings, that it is agreed in writing by the Customer and the Company.
(2)    In these conditions headings will not affect the construction of these conditions.

2 FORMATION OF CONTRACT

(1) The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the order are complete and accurate.
(2) Any quotation given by the Company shall, unless withdrawn by the Company, be valid for a period not exceeding 30 days from its date. The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
(3) No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Company.
(4) The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Illustrations, photographs, weights, dimensions and descriptions, except as otherwise agreed in writing, are intended as a general guide only, and are not intended to form the basis of a sale by description.
(5) These Conditions shall apply to all contacts for the sale of Goods by the Company to the Customer to the exclusion of all other terms or conditions which the Customer may purport to apply under any purchase order confirmation of order or similar document.

3 GOODS

(1)   The Goods are to be manufactured in accordance with a specification supplied by the Customer.
(2)   The Company reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.

4 DELIVERY

(1)   The Company shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods, special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered;
(2)   The Company shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Company notifies the Customer that the Goods are ready.
(3)   In the absence of such agreement delivery of the Goods shall be made by the Customer collecting the Goods at the Company's premises after the Company has notified the Customer that the Goods are ready for collection.
(4)   Where the Goods are not delivered by the Company or collected by the Customer, but are delivered by an independent carrier, delivery of the Goods to the carrier shall be deemed to be delivery to the Customer
(5)   The Company reserves the right to deliver the Goods in part loads.
(6)   Any dates quoted for delivery of the Goods are approximate only and time for delivery shall not be of the essence unless previously agreed in writing by the Company. The Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer.
(7)   Delivery notes bearing the signature of the Customer, its employee, officer, agent or representative, shall be conclusive evidence of receipt of Goods described thereon, unless claims for investigation are made in writing to the Company as from the delivery date, as set out below in clause 4 (9).
(8)   Any claim by the Customer which is based on any defect in the quality or condition of the Goods (including, without limitation, that the Goods have been damaged in transit) or their failure to correspond with the specification shall (whether or not delivery is refused by the Customer) be notified to the Company within 14 days from the date of delivery. If delivery is not refused, and the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
(9)   Any claim by the Customer which is based on defect in quantity of the Goods shall be notified to the Company within 7 days from the date of delivery. If the Customer does not notify the Company accordingly, the Company shall have no liability for such failure and the
Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract and the Customer shall not be entitled to reject the Goods so delivered and shall accept the Goods delivered as part performance of the Contract.
(10)  If the Customer fails to take delivery on the agreed date, or the Company is unable to ship due to an outstanding payment being overdue the Company shall be entitled to issue an invoice to the Customer for such Goods and to store and insure them, and to charge the Customer the reasonable costs of so doing.
(11)  The costs of carriage shall in all cases unless agreed otherwise be reimbursed by the Customer to the Company and shall be due on the date for payment of the supply of the Goods.

5 PACKING

Packing will be in accordance with the Company's standard packing, unless specified in writing.

6 QUALITY

(1)   The Company warrants the solderability of Goods supplied for a period of six months. Any Goods used after the warranty period are used at the Customers risk.
(2)   Subject to clause 6 (3), if:
(i)   the Customer gives notice in writing to the Company during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6 (1);
(ii)   the Company is given a reasonable opportunity of examining such Goods; and
(iii)  the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business, and the Company shall provide for a full refund of the price of any components of the Company's manufacture which are found to be defective due to faulty materials or workmanship.
(iv)  This warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
(3)  The Company shall not be liable for Goods' failure to comply with the warranty set out in clause 6 (1) in any of the following events:
(i)   the Customer makes any further use of such Goods after giving notice in accordance with clause 6 (2);
(ii)   the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(iii)  the defect arises as a result of the Company’s following any drawing, design or Specification supplied by the Customer;
(iv)  the Customer alters or repairs such Goods without the written consent of the Company;
(v)   the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(vi)  the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
(4)   Except as provided in this clause 6, the Company shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 6 (1).
(5)   The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
(6)   These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
(7)   The warranties and conditions stated in this Agreement are in lieu of all other warranties, conditions or other terms, whether express or implied, statutory or otherwise, all of which are expressly excluded, including, without limitation, any implied warranties or conditions as to satisfactory quality, fitness for a particular purpose or as to the proper use of reasonable skill and care.

7 DESIGN AND DRAWING

(1)   It is the Customer's responsibility to ensure that any drawings, specifications and tooling supplied to the Company are correct.
(2)   The Company accepts no responsibility for any such drawings, designs or specifications and offers no warranty, guarantee, representation or opinion as to the practicability of construction, or the efficacy, safety or otherwise of materials to be supplied, or work to be executed by the Company in accordance therewith; and the costs of any additional work caused by defects in any such drawings, designs or specifications shall be chargeable to the Customer.
(3)   Drawing are held on the Company’s premises at the risk of the Customer. The Company will store and hold in good workable condition. In the case of a drawing not being used for a period of two years the Company reserves the right to dispose of the said drawings.

8 RISK AND TITLE

(1)   Risk of loss or damage to the Goods shall pass to the Customer:
(i)   In the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Customer that the Goods are available for collection;
(ii)   In the case of Goods delivered otherwise than at the Company's premises by the Company, at the time of delivery, or if the Customer wrongfully fails to take delivery of the Goods, at the time when the Company has tendered delivery of the Goods; or
(iii)  In the case of Goods to be delivered otherwise than at the Company's premises by an independent third party, when the Goods are consigned to that carrier.
(2)   The property and title in the Goods shall not pass to the Customer until all amounts due from the Customer to the Company in respect of Goods delivered to it have been paid for in full but the Customer shall be entitled to resell or use the Goods in the ordinary course of its business. Until such time as the property in the Goods passes to the Customer:
(i)   The Customer shall hold the Goods as the Company's fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Company's property; and
(ii)   The Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so forthwith, to enter upon the premises of the Customer or any third party where the Goods are stored and repossess the Goods.
(iii)   If the Customer fails to make any payment for the Goods to the Company when due, or becomes insolvent, or bankrupt or goes into liquidation, or makes any arrangements with its creditors, or has a Receiver appointed over any of its property or undertaking then the right to deal with the Goods under clause 8(2) shall automatically cease, and the Company shall be thereupon entitled to enter upon the premises of the Customer or any third party and re-claim the Goods.
(3)   The Customer shall be wholly responsible for the Goods when they are delivered and shall ensure they are stored in the original packaging and in a temperature and humidity controlled environment. The Customer can obtain guidelines as to storage from the Company’s technical department on request.
(4)   Stock rotation is also the Customer’s responsibility once the Goods are delivered. All Goods supplied will be marked with a date code stating the week of manufacture

9 PRICE AND PAYMENT

(1)   The price of the Goods shall be the Company's quoted price as set out in its quotation.
(2)   The Company reserves the right by giving as reasonable notice as is possible to the Customer to increase the price for the Goods to reflect any increase in the cost to the Company after the date the order is received as a result of:
(i)   Any alteration in the specification of the Goods requested by the Customer.
(ii)   Any of the instructions of the Customer or the failure to give information or instructions.
(iii)   Any factor beyond the control of the Company (such as, without limitation, foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in labour, materials or other costs of manufacture).
(iv)   An increase or decrease in the quantity of the Goods required by the Customer.
(v)   Any alteration to the date of delivery of the Goods agreed with the Customer.
(3)   All prices are subject to the addition of value added tax at the appropriate rate which the Customer shall be additionally liable to pay to the Company
(4)   The price of Goods excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
(5)   The customer shall pay the invoice in full in cleared funds within 30 days from the date of the Invoice and payment shall be made to the bank account nominated in writing by the Company unless otherwise agreed in writing. Time of payment of the price of the Goods shall be of the essence. If the Customer fails to pay within this time, then it shall lose the benefit of any previously agreed discount.
(6)   The Customer shall pay all accounts in full and not exercise any rights of set off ,counter-claim, deduction or withholding (except for any deduction or withholding required by law) against invoices submitted. The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
(7)   Payment is to be made in the currency stated by the Company in its invoice.
(8)   If the Goods are delivered in instalments to the Customer the Company shall be entitled to render an invoice to the Customer in respect of the Goods delivered.
(9)   If the Customer fails to make any payment in respect of any invoice rendered by the Company (whether or not all of the Goods have been delivered to the Customer) on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
(i)   Cancel the contract or suspend any further deliveries to the Customer;
(ii)   Appropriate any payment made by the Customer to such of the Goods (or any other Goods supplied under any other contract between the Company and the Customer) as the Company may think fit; and
(iii)   Charge the Customer interest (both before and after any judgement) on the amount unpaid at the rate of 5% per annum above Barclays Bank plc. base rate from time to time until payment in full is made.

10 REFERENCES

Orders are accepted subject to trade and financial references being satisfactory, (any costs incurred in obtaining these references are to be borne by the Customer) otherwise the Company reserves the right to issue a pro forma invoice.

11 CANCELLATION

(1)   An order accepted by the Company may only be cancelled on the Customer giving one month written notice to the Company and such cancellation shall only be accepted by the Company if the Customer indemnifies the Company against any loss or liability that the Company shall suffer or incur (which shall include any loss of profit to the Company by its fulfilment of its part of the contract) by reason of the cancellation.
(2)   On giving written notice to the Customer, the Company shall be entitled to suspend or cancel further deliveries and to suspend or cancel work under this and any other contract between the Company and the Customer, if the value of the Goods delivered, but not paid for, exceeds any credit limit agreed between the Company and the Customer (whether or not payment for such Goods is overdue).

12 TERMINATION

(1)   Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Customer if:
(i)    The Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(ii)   the Customer 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), 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];
(iii)  the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(iv)  the Customer's financial position deteriorates to such an extent that in the Company’s opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
(2)   Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
(3)   On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the outstanding unpaid invoices and interest.
(4)   Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
(5)   Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

13 INTELLECTUAL PROPERTY

The Customer shall indemnify the Company fully against all losses, liabilities, costs and expenses which the Company may incur as a result of work done in accordance with any order, design or specification of the Customer which results in the infringement of any Intellectual Property Right.

14 RESTRICTION OF USE

(1)   The Customer shall not, directly or indirectly, reverse engineer or aid or assist in the reverse engineering of all or any part of the Goods.
(2)   The Goods marked as development samples are only restricted for use in controlled testing environments.

15 LIMITATIONS ON LIABILITY

(1)   Nothing in this Agreement shall limit the Company’s liability to the Customer for personal injury or death caused by its negligence or fraudulent misrepresentation.
(2)   The Company’s liability to the Customer, in contract, tort or otherwise for loss or damage to the Customer’s tangible property, caused either by defects in the Good resulting from the Customer’s negligence or by the negligence of its employees shall be limited to a maximum amount paid for the Goods in question per event or series of connected events.
(3)   Subject to clause 14(1) the Company shall not be liable in contract, tort or otherwise howsoever for losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise) including:
(i)   Loss of revenue; loss of actual or anticipated profits (including loss of profits on contracts; loss of the use of money; loss of anticipated savings; loss of business; loss of opportunity; loss of goodwill; loss of reputation; loss of, damage or corruption to data;
(ii)   Any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, whether or not such loss or damage is of a type specified in clause 14(3.i)); Whether arising out of, in connection with or in relation to the Goods or the supply or non-supply of the Goods or otherwise under this Agreement.
(4)   Subject to clauses 14(1) to 14(3) above, the Company’s total liability in contract, tort (including without limitation, negligence) or otherwise whether arising out of, in connection with or in relation to the Goods or the supply or non-supply of the Goods or otherwise under this Agreement shall be limited to the price paid or payable for the Goods for any one event or series of connected events in aggregate.

16 FORCE MAJEURE

(1)   If either party is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.
(2)   Notwithstanding any other provision of the Contract, neither party shall be deemed to be in breach of the Contract, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under the Contract, to the extent that the delay or non- performance is due to any Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended by a period equivalent to that during which performance is so prevented provided that if such delay or failure persists far more than 30 days the Contract shall terminate forthwith.

17 ASSIGNMENT

The Contract shall be personal to the Customer and no rights arising hereunder shall be assignable by the Customer without the express written consent of the Company.

18 WAIVER

(1)   No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
(2)   No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

19 SEVERANCE

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

20 THIRD PARTY RIGHTS

No one other than a party to this contract and their permitted assignees shall have any right to enforce any of its terms.

21 GOVERNING LAW AND JURISTICTION

(1)   The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
(2)   Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.