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Terms & Conditions of Purchase

  1. INTERPRETATION

    In these Terms & Conditions :

    "Seller" means the person who supplies or agrees to supply Goods and/or Services to the Buyer, as specified on the Purchase Order.

    "Buyer" means Acturus Limited, or any of its Group, Subsidiaries or Affiliated Companies.

    "Buyers place of business" means 55 Waverley Road, Beeches Industrial Estate, Yate, Bristol, UK. BS37 5QR.

    "Contract" means the Buyers Purchase Order and these Conditions.

    "Goods" means the Goods and/or Services as indicated on the Purchase Order.

    "Order" means the Buyers Purchase Order.

    "Price" means the price as indicated on the Purchase Order.

    "Writing" shall include facsimile and "Written Notice" shall be construed accordingly.

    1.1  Headings are not to be taken into account in interpreting these Conditions.

    1.2  Any clause, or part thereof, which may be void or unenforceable shall be treated as severable from the remainder of these Conditions and shall not affect any other provisions of these Conditions.

  2. APPLICATION OF TERMS

    2.1  Unless varied by the written agreement of the Buyer, these Conditions are the only conditions upon which the Buyer is prepared to deal with the Seller. All other terms and conditions including any terms or conditions which the Seller purports to apply under any acknowledgement or confirmation of order, specification or other document or which are actually or alleged to be implied by trade, custom practice or course of dealing are excluded.

    2.2  Written acceptance by the Seller, or any act consistent with fulfilling the Buyers order, shall be deemed acceptance of these Conditions.

    2.3  All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

    2.4  The Order and these Conditions constitute the entire agreement between the parties and together supersede and extinguish all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.

    2.5  Each party acknowledges that in entering into the Contract, it does not reply on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set our in these Conditions.

    2.6  No party shall have any claim for innocent or negligent misrepresentation based upon any statement in the Contract.

  3. SUPPLY OF GOODS

    3.1  The Seller shall ensure that the Goods shall :

       3.1.1  correspond with their description and any applicable specification;

       3.1.2  correspond with any sample supplied by the Seller to the Buyer;

       3.1.3  be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Seller or made known to the Seller by the Buyer, expressly or by implication, and in this respect the Buyer relies on the Sellers skill and judgement;

       3.1.4  where applicable, be free from defects in design, materials and workmanship and remain so for twelve (12) months after delivery; and

       3.1.5  comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.

    3.2  The Seller shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.

    3.3  In particular, but without limitation of the obligations at 3.2 above, if any of the items ordered constitute or contain hazardous or toxic chemicals as defined by any applicable body, local law, rule or regulation, the Seller shall provide at the time of delivery all required notices and information including without limitation all material save the datasheets (MSDS) in approved form.

    3.4  The Buyer shall have the right to inspect and test the Goods at any time before delivery.

    3.5  If following such inspection or testing the Buyer considers that the Goods do not conform or are unlikely to comply with the Sellers obligations at 3.1 above, the Buyer shall inform the Seller and the Seller shall immediately take such remedial action as is necessary to ensure compliance.

    3.6  Notwithstanding any such inspection or testing, the Seller shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Sellers obligations under the Contract, and the Buyer shall have the right to conduct further inspections and tests after the Seller has carried out its remedial actions.

  4. DELIVERY OF GOODS

    4.1  The Seller shall ensure that :

       4.1.1  the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;

       4.1.2  each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by installments, the outstanding balance of Goods remaining to be delivered; and

       4.1.3  if the Seller requires the Buyer to return any packaging material for the Goods to the Seller, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Seller at the cost of the Seller.

    4.2  The Seller shall deliver the Goods :

       4.2.1  on the date specified in the Order or on such date as is specified, or as varied in writing, by the Buyer;

       4.2.2  the Buyers premises or such other location as is set out in the Order or as instructed by the Buyer before delivery;

       4.2.3  during the Buyers normal hours of business, or as instructed by the Buyer.

    4.3  If the Seller :

       4.3.1  delivers less than 100 per cent of the quantity of Goods ordered, the Buyer may reject the Goods; or

       4.3.2  delivers more than 105 per cent of the quantity of the Goods ordered, the Buyer may at its sole discretion reject the Goods or the excess Goods;

       and any rejected Goods shall be returned at the Sellers risk and expense. If the Seller delivers more or less than the quantity of Goods ordered, and the Buyer accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.

    4.4  The Seller shall not deliver the Goods in installments without the Buyers written consent. Where it is agreed that the Goods are delivered by installments, they may be invoiced and paid for separately. However, failure by the Seller to deliver any one installment on time or at all or any defect in an installment shall entitle the Buyer to the remedies set out in 5.1 below.

    4.5  Title in the Goods shall pass to the Buyer at the time when the contract is made or at latest when the Goods are despatched to the Buyer but passing of title will not prejudice any of the Buyers right to reject.

    4.6  The Goods shall be at the Sellers risk until delivery is completed.

    4.7  The Seller warrants that :

       4.7.1  the Seller has the right to sell the Goods to the Buyer at the time of delivery;

       4.7.2  the Goods sold will be free from all encumbrances; and

       4.7.3  the Buyer will enjoy quiet possession of the Goods supplied.

    4.8  The price includes all the costs of delivery unless otherwise agreed.

    4.9  The Buyer may, by written notice and at any time, cancel any order before delivery, without any liability to the Seller. In no event shall the Seller be entitled to recover any costs associated with the termination including incidental or consequential damages.

  5. BUYER REMEDIES

    5.1  If the Seller fails to deliver the Goods by the applicable date, the Buyer shall, without limiting its other rights or remedies, have one or more of the following rights :

       5.1.1  to terminate the Contract with immediate effect by giving written notice to the Seller;

       5.1.2  to refuse to accept any subsequent performance of services and/or delivery of the Goods which the Seller attempts to make;

       5.1.3  to recover from the Seller any costs incurred by the Buyer in obtaining substitute Goods and/or services from a third party;

       5.1.4  where the Buyer has paid in advance for services that have not been provided by the Seller and/or Goods which have not been delivered by the Seller, to have such sums refunded by the Seller; and

       5.1.5  to claim damages for any additional costs, loss or expenses incurred by the Buyer which are in any way attributable to the Sellers failure to meet such dates.

    5.2  If the Seller has delivered Goods that do not meet the obligations set out in 3.1 above, then without limiting its other rights or remedies, the Buyer shall have one or more of the following rights, whether or not it has accepted the Goods :

       5.2.1  to reject the Goods (in whole or in part) whether or not title has passed and to return the to the Seller at the Sellers own risk and expense;

       5.2.2  to terminate the Contract with immediate effect by giving written notice to the Seller;

       5.2.3  to require the Seller to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);

       5.2.4  to refuse to accept any subsequent delivery of the Goods which the Seller attempts to make;

       5.2.5  to recover from the Seller any expenditure incurred by the Buyer in obtaining substitute Goods from a third party; and

       5.2.6  to claim damages for any additional costs, loss or expenses incurred by the Buyer arising from the Sellers failure to supply Goods in accordance with 3.1 above.

    5.3  These Conditions shall extend to any substituted or remedial services and/or replacement Goods supplied by the Seller.

    5.4  The Buyers rights under the Contract are in addition to its rights and remedies implied by statute and common law.

  6. PAYMENT OF PRICE

    6.1  The price payable shall be the price specified on the Order. This price is exclusive of VAT, taxes and all other duties, unless otherwise specified.

    6.2  Payment shall be due on the last day of the month following the end of the month in which the Goods were delivered.

    6.3  The Buyer may off-set against the price any sums due from the Seller to the Buyer whether under this Contract or others.

    6.4  The Order price shall not be changed nor the terms hereof changed without the Buyers written consent.

  7. INTELLECTUAL PROPERTY RIGHTS

    7.1  The Seller assigns to the Buyer, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the Goods.

    7.2  The Seller shall obtain waivers of all moral rights in the Goods to which any individual is now or may be at any future time entitled under Chapter IV or Part 1 of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.

    7.3  The Seller shall, promptly at the Buyers request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Buyer may from time to time require for the purpose of securing for the Buyer the full benefit of the Contract, including all rights, titles and interest in and to the Intellectual Property Rights assigned to the Buyer in accordance with 7.1 above.

  8. INDEMNITY

    8.1  The Seller shall keep the Buyer indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the Buyer as a result of or in connection with :

       8.1.1  any claim made against the Buyer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defect in the Goods is attributable to the acts or omissions of the Seller, its employees, agents or sub-contractors;

       8.1.2  any claim made against the Buyer by a third party arising out of, or in connection with, the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Seller, its employees, agents or sub-contractors; and

       8.1.3  any claim made against the Buyer for actual or alleged infringements of a third partys' Intellectual Property Rights arising out of, or in connection with, the manufacture, supply, receipt or use of the Goods.

    8.2  For the duration of the Contract and for a period of twelve (12) months thereafter, the Seller shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract and shall, on the Buyers request, produce both the insurance certificate giving details of cover and the receipt for the current years premium in respect of each insurance.

    8.3  This clause 8 shall survive termination of the contract.

  9. CONFIDENTIALITY

    9.1  The Seller shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Seller by the Buyer, its employees, agents or sub-contractors, and any other confidential information concerning the Buyers business or its products or its services which the Seller may obtain. The Seller shall restrict disclosure of such confidential information to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Sellers obligations under the Contract, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Seller.

    9.2  Where a security classification is present the Seller shall at all times comply with the relevant security procedures for handling classified information.

    9.3  This clause 9 shall service termination of the Contract.

  10. ANTI-BRIBERY PROVISIONS

    10.1  The Seller shall :

       10.1.1  comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);

       10.1.2  not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

       10.1.3  have and shall maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements;

       10.1.4  promptly report to the Buyer any request or demand for any undue financial or other advantage of any kind received by the Seller in connection with the performance of the Contract;

       10.1.5  immediately notify the Buyer (in writing) if a foreign public official becomes an officer or employee of the Seller or acquires a direct or indirect interest in the Seller (and the Seller warrants that it has no foreign public officials as officers, employees, or direct or indirect owners at the date of this agreement).

    10.2  The Seller shall ensure that any person associated with the Seller who is performing services or providing Goods in connection with this agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Seller in the clause 10 (Relevant Terms). The Seller shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Buyer for any breach by such persons of any of the Relevant Terms.

    10.3  Breach of this clause 10 shall be deemed a material breach.

    10.4  For the purpose of this clause 10, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with Section 7(s) of the Bribery Act 2010 (and any guidance issued under Section 9 of that Act), Sections 6(5) and 6(6) of that Act and Section 8 of that Act respectively. For the purposes of this clause 10 a person associated with the Seller includes but is not limited to any sub-contractor of the Seller.

  11. TERMINATION

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

       11.1.1  the Seller commits a material or persistent breach of the Contract;

       11.1.2  the Seller suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of doing so, in either case, within the meaning of Section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

       11.1.3  the Seller commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of the Seller with one or more other companies or the solvent reconstruction of the Seller;

       11.1.4  a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Seller (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Seller with one or more other companies or the solvent reconstruction of the Seller;

       11.1.5  the Seller (being an individual) is the subject of a bankruptcy petition or order;

       11.1.6  a creditor or encumbrancer of the Seller attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen (14) days;

       11.1.7  an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Seller (being a company);

       11.1.8  a floating charge holder over the assets of the Seller (being a company) has become entitled to appoint or has appointed an administrative receiver;

       11.1.9  a person becomes entitled to appoint a receiver over the assets of the Seller or a receiver is appointed over the assets of the Seller;

       11.1.10  any event occurs, or proceeding is taken, with respect to the Seller in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the event mentioned in clauses 11.1.2 to clause 11.1.9 (inclusive);

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

       11.1.12  the Seller (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

    11.2  In any of the circumstances in these Conditions in which the Buyer may terminate the Contract, where both Goods and Services are supplied, the Buyer may instead terminate part of the Contract in respect of the Goods, or in respect of the Services, and the Contract shall continue in respect of the remaining supply.

  12. GENERAL

    12.1  Force Majeure :

    Neither party shall be liable to the other as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an even or circumstance which is beyond the reasonable control of that party which by its nature could not have been foreseen by such party or if it could have been foreseen was unavoidable. If such event or circumstance prevents the Seller from supplying the Goods and/or Services for more than two (2) weeks, the Buyer shall have the right, without limiting its other rights or remedies, to terminate the Contract with immediate effect by giving written notice to the Seller.

    12.2  Assignment and sub-contracting :

       12.2.1  the Seller shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Buyer;

       12.2.2  the Buyer may at any time assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights under the Contract and may sub-contract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

    12.3  Notices :

       12.3.1  any notice or other communication required to be given to a party under or in connection with the Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courrier, at its registered office (if a company) or (in any case) its principle place of business, or sent by facsimile to the other partys main facsimile number;

       12.3.2  any notice or communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above, or if sent by prepaid first-class post or recorded delivery, at 09:00 on the second Business Day after posting, or if delivered by commercial courrier, on the date and at the time that the courriers delivery receipt is signed, or if sent by facsimile, on the next Business Day after transmission;

       12.3.3  this clause 12.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, writing shall not include e-mails and for the avoidance of doubt notice given under the Contract shall not be validly served if sent by e-mail.

    12.4  Waiver and cumulative remedies :

       12.4.1  a waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict further exercise of that or any other right or remedy;

       12.4.2  unless specifically proven otherwise rights arising under the Contract are cumulative and do not exclude rights provided by law.

    12.5  Severance :

       12.5.1  if a court or any other competent authority finds that any provision (or part of any provision) of the Contract is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected;

       12.5.2  if any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it valid, enforceable and legal.

    12.6  No partnership :

    Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party, agent or another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

    12.7  Third parties :

    A person who is not a party to the Contract shall not have any rights under or in connection with it.

    12.8  Variation :

    Any variation, including any additional Terms and Conditions, to the Contract shall only be binding when agreed in writing and signed by the Buyer.

    12.9  The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.



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