CREATIVE RESINS INTERNATIONAL LIMITED CONTRACT FOR THE SUPPLY OF EQUIPMENT TERMS AND CONDITIONS
1 INTERPRETATION The definitions and rules of interpretation in this clause apply in this agreement. Consumables: the consumables agreed to be purchased by the Customer from CRI as set out in the Contract Particulars together with any other consumables which CRI supplies for use in connection with the Equipment including without limitation surface coating/paint, cleaners and degreasers, pigments and sundries. Contract Particulars: the contract particulars document signed by the Customer and CRI. Customer: the customer set out in the Contract Particulars. CRI: Creative Resins International Limited (company number: Company number 03765974) whose registered office is at Bank Chambers, 1 Central Avenue, Sittingbourne, Kent, ME10 4AE. Delivery Date: the date on which the Equipment is delivered to the Customer. Equipment: the equipment (excluding the Consumables) agreed to be purchased by the Customer from CRI (including without limitation any part or parts of it) as set out in the Contract Particulars. Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. Price: the price for the initial Equipment, Consumables and Support and Maintenance Services is the price set out in the Contract Particulars (subject to any increase under clause 5). The price for any subsequent purchases of Equipment, Consumables or Support and Maintenance Services will be as set out in CRI’s price list (as in place from time to time) or as otherwise agreed by the Customer and CRI in writing. Support and Maintenance Services: CRI’s standard support and maintenance service as in place from time to time.
2 COMMITMENT TO PURCHASE CONSUMABLES
2.1 In consideration of CRI selling the Equipment to the Customer and providing the warranty as set out in clause 8, the Customer agrees that it will purchase all of its future requirements of Consumables for use with the Equipment from CRI for a period of two years from the Delivery Date. This obligation to purchase all Consumables from CRI will apply even if no Consumables are included in the initial order when the Equipment is purchased. 2.2 If the Customer fails to comply with the obligation under clause 2.1 then, without prejudice to CRI’s other rights and remedies: 2.2.1 CRI will have the right to cease any obligations in respect of the Equipment warranty under clause 8; 2.2.2 CRI will have the right to cease the provision of the Support and Maintenance Services (for the avoidance of doubt, the Customer will not be entitled to a refund of any prepaid fees for such Support and Maintenance Services); and 2.2.3 CRI will have the right to cease all further manufacture, delivery, installation or warranty services in relation to the Customer.
3 ORDERING OF ADDITIONAL CONSUMABLES 3.1 The Customer will place orders for Consumables with CRI from time to time and will ensure that each order is complete and accurate. A binding contract for the Consumables will not come into existence between CRI and the Customer unless and until CRI issues a written order acknowledgement to the Customer, or CRI delivers the Consumables to the Customer (whichever occurs earlier). The terms and conditions set out in this agreement will apply to the supply of the Consumables. 3.2 No order which has been acknowledged by CRI may be cancelled by the Customer, except with the agreement in writing of CRI and provided that the Customer pays CRI in full for all costs (including without limitation the cost of all labour and materials used), damages, charges and expenses incurred by CRI as a result of cancellation.
4 QUANTITY AND DESCRIPTION 4.1 The quantity and description of the Equipment and Consumables will be as set out in CRI’s acknowledgement of order or (if there is no acknowledgment of order) quotation. 4.2 All samples, drawings, descriptive matter, specifications and advertising issued by CRI, and any descriptions or illustrations contained in CRI’s catalogues or brochures are issued or published for illustrative purposes only and they do not form part of this agreement. 4.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by CRI will be subject to correction without any liability on the part of CRI. 4.4 CRI reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment and Consumables which are required to conform with any applicable legislation or, where the Equipment or Consumables are to be supplied to the Customer’s specification, which do not materially affect their quality or performance. Where CRI is not the manufacturer of the Equipment or Consumables, CRI will use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to CRI. 4.5 CRI’s employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Equipment or Consumables.
5 PRICE AND PAYMENT 5.1 All Price is exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other charges and duties which will be payable by the Customer. 5.2 CRI reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Equipment or Consumables as have not been delivered to reflect any increase in the cost to CRI which is due to market clauses or any factor beyond the control of CRI (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Equipment or Consumables which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give CRI adequate information or instructions. 5.3 CRI may increase the Price for its Support and Maintenance Services from time to time by giving notice to the Customer. 5.4 Unless otherwise agreed in writing by CRI, payment for the Equipment will be due as follows: 5.4.1 50% at the time the Customer places the order; 5.4.2 40% upon dispatch of the Equipment; and 5.4.3 10% upon installation or, if CRI is not installing the Equipment for the Customer, upon delivery. 5.5 The Customer will pay all invoices issued by CRI in full and cleared funds within 30 days of the date of CRI’s invoice (or within the timescale set out in clause 5.4 if earlier), whether or not delivery has taken place or title in the Equipment or Consumables has passed to the Customer. If the Customer is located outside of the UK, payment will be required in full before delivery of the Consumables unless otherwise agreed in writing by CRI. Time for payment of the Price will be of the essence of this agreement. 5.6 If the Customer fails to make payment in full on the due date, the whole of the balance of the Price then outstanding will become immediately due and payable and, without prejudice to any other right or remedy available to CRI, CRI will be entitled to: 5.6.1 terminate this agreement or suspend any further deliveries of Equipment or Consumables (whether ordered under the same contract or not) to the Customer; 5.6.2 terminate suspend the provision of any Support and Maintenance Services; 5.6.3 charge interest on the amount outstanding from the due date to the date of receipt by CRI (whether or not after judgment), at the annual rate of 8% above the base lending rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. CRI reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and 5.6.4 suspend all further manufacture, delivery, installation or warranty service until payment has been made in full. 5.7 All sums payable to CRI under this agreement will become due immediately on its termination, despite any other provision of this agreement. This clause 5.7 is without prejudice to any right to claim for interest under the law, or any right under this agreement. CRI may, without prejudice to any other rights it may have, set off any liability of the Customer to CRI against any liability of CRI to the Customer.
6 DELIVERY AND ACCEPTANCE
6.1 CRI will use its reasonable endeavours to deliver the Equipment and Deliverables on the date or dates specified in CRI’s acknowledgement of order, but any such date is approximate only. If no dates are so specified, delivery will be within a reasonable time of acceptance of the order. Time is not of the essence as to the delivery of the Equipment and Consumables and CRI is not in any circumstances liable for any delay in delivery, however caused. 6.2 The Customer will be responsible (at the Customer’s cost) for preparing the delivery location for the delivery of the Equipment and Consumables and for the provision of all necessary access and facilities reasonably required to deliver the Equipment and Consumables. If CRI is prevented from carrying out delivery on the specified date because no such preparation has been carried out or for any other reason beyond CRI’s reasonable control, CRI may levy additional charges to recover its loss arising from this event (including charges for storage of the Equipment and Consumables). 6.3 The Customer will test and inspect the Equipment and Consumables upon delivery to ensure that they comply with the requirements of this agreement. The Customer will be deemed to have accepted the Equipment and Consumables when the Customer has had 48 hours to inspect them after delivery and has not given notice to CRI under clause 8.2.
7 RISK AND PROPERTY
7.1 Risk in the Equipment and Consumables will pass to the Customer at the moment the Equipment and Consumables are dispatched from CRI’s premises. Where the Customer chooses to collect the Equipment and Consumables itself, risk will pass when the Equipment and Consumables are passed to the Customer (or its representative) or when they are set aside for collection, whichever happens first. For the avoidance of doubt, loading of the Equipment and Consumables will be at the Customer’s risk. 7.2 Ownership of the Equipment and Consumables will pass to the Customer on the later of completion of delivery or when CRI has received in full in cleared funds all sums due to it in respect of: 7.2.1 the Equipment and Consumables; and 7.2.2 all other sums which are or which become due to CRI from the Customer on any account. 7.3 Until ownership of the Equipment has passed to the Customer under clause 7.2, the Customer will: 7.3.1 hold the Equipment and Consumables on a fiduciary basis as CRI’s bailee; 7.3.2 keep the Equipment and Consumables insured for their full price against all risks with a reputable insurer and store the Equipment and Consumables (at no cost to CRI) in satisfactory conditions and separately from all the Customer’s other equipment or that of a third party, so that it remains readily identifiable as CRI’s property; and 7.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment and Consumables. 7.4 The Customer’s right to possession of the Equipment and Consumables before ownership has passed to it will terminate immediately if any of the circumstances set out in clause 11 arise or if the Customer encumbers or in any way charges the Equipment or Consumables, or if the Customer fails to make any payment to CRI on the due date. 7.5 The Customer grants CRI, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment and Consumables are or may be stored in order to inspect them, or where the Customer’s right to possession has terminated, to remove them. All costs incurred by CRI in repossessing the Equipment and Consumables will be borne by the Customer. 7.6 On termination of this agreement for any reason, CRI’s (but not the Customer’s) rights in this clause 7 will remain in effect.
8 EQUIPMENT AND CONSUMABLES WARRANTY
8.1 CRI warrants to the Customer that the Equipment and Consumables are free from defects of workmanship and materials. CRI undertakes (subject to the remainder of this clause 8), at its option, to repair or replace Equipment or Consumables which are found to be defective as a result of faulty materials or workmanship within two years of the Delivery Date of such Equipment or Consumables. CRI’s obligation in respect of this warranty will not extend to repairing, replacing or reinstalling any products or finished work in respect of which the Equipment or Consumables have been used. 8.2 CRI will not in any circumstances be liable for a breach of the warranty contained in clause 8.1 unless: 8.2.1 the Customer gives written notice of the defect to CRI within 48 hours of the time when the Customer discovers or ought to have discovered the defect; and 8.2.2 after receiving the notice, CRI is given a reasonable opportunity of examining such Equipment or Consumables and the Customer (if asked to do so by CRI) returns such Equipment or Consumables to CRI’s place of business for the examination to take place there. 8.3 CRI will not in any circumstances be liable for a breach of the warranty in clause 8.1 if: 8.3.1 the Customer makes any use of Equipment or Consumables in respect of which it has given written notice under clause 8.2.1; or 8.3.2 the defect arises because the Customer failed to follow CRI’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or Consumables or (if there are none) good trade practice; or 8.3.3 the Customer uses any Consumables with the Equipment which have not be supplied by CRI; or 8.3.4 the Customer breaches it obligations under clause 2 or any other obligations under this agreement; or 8.3.5 the Customer alters or repairs the relevant Equipment or Consumables without the written consent of CRI. 8.4 Any repaired or replacement Equipment and Consumables will be under warranty for the unexpired portion of the two year period. 8.5 CRI will not in any circumstances be liable for any damage or defect to the Equipment or Consumables caused by improper use of the Equipment or Consumables or use outside of their normal application. 8.6 In the event of any claim by the Customer under the warranty given in clause 8.1, the Customer will notify CRI in writing of the alleged defect. CRI will have the option of testing or inspecting the Equipment at its current location or moving it to CRI’s premises (or those of its agent or sub-contractor) at the cost of CRI. If the Customer’s claim is subsequently found by CRI to be outside the scope or duration of the warranty in this clause 8, the costs of transportation of the Equipment, investigation and repair will be borne by the Customer.
9 LIMITATION OF LIABILITY
9.1 The following provisions set out the entire financial liability of CRI (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of: 9.1.1 any breach of this agreement howsoever arising; and 9.1.2 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising out of or in connection with this agreement. 9.2 All warranties, clauses and other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law. 9.3 Nothing in this agreement excludes or limits the liability of CRI for: 9.3.1 death or personal injury caused by CRI’s negligence; or 9.3.2 fraud or fraudulent misrepresentation. 9.4 Subject to clause 9.2 and clause 9.3: 9.4.1 CRI will not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for: 184.108.40.206 any loss of profits, loss of business, depletion of goodwill or similar losses, loss of anticipated savings, loss of goods, loss of contract or loss of use; or 220.127.116.11 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and 9.4.2 CRI’s total liability in contract, tort (including without limitation negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement will be limited to the price paid or payable by the Customer for the particular Equipment, Consumables or Support and Maintenance Services to which the claim relates. 9.5 If CRI’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, the Customer will in all circumstances be liable to pay to CRI all reasonable costs, charges or losses sustained by it as a result, subject to CRI notifying the Customer in writing of any such claim it might have against the Customer in this respect.
10 INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
10.1 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Equipment and Consumables are and will remain the sole property of CRI or (as the case may be) third party rights owner. 10.2 CRI will retain the property and copyright in all documents supplied to the Customer in connection with this agreement and it will be a condition of such supply that the contents of such documents will not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of CRI. 10.3 CRI’s Intellectual Property Rights in and relating to the Equipment and Consumables will remain the exclusive property of CRI, and the Customer will not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any of its agents or contractors or any other person to do so. 10.4 The Customer will 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 Customer by CRI or its agents, and any other confidential information concerning CRI’s business or its products which the Customer may obtain. The Customer will restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to CRI, and will ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer. 10.5 All materials, equipment and tools, drawings, specifications and data supplied by CRI to the Customer will at all times be and remain the exclusive property of CRI, but will be held by the Customer in safe custody at its own risk and maintained and kept in good clause by the Customer until returned to CRI, and will not be disposed of or used other than in accordance with CRI’s written instructions or authorisation. 10.6 This clause 10 will survive termination of this agreement, however arising.
11.1 Without prejudice to any other right or remedy available to CRI, CRI may terminate this agreement or suspend any further deliveries under this agreement without liability to the Customer and, if the Equipment or Consumables have been delivered but not paid for, the Price (including the Price for Support and Maintenance Services) will become immediately due and payable notwithstanding any previous arrangement to the contrary if: 11.1.1 the Customer 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; 11.1.2 the Customer 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; 11.1.3 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 Customer; 11.1.4 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 Customer; 11.1.5 the holder of a qualifying floating charge over the assets of Customer has become entitled to appoint or has appointed an administrative receiver; 11.1.6 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the Customer; 11.1.7 a creditor or encumbrancer of the Customer 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 the Customer’s assets and such attachment or process is not discharged within 14 days; 11.1.8 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1.1 to clause 11.1.7 (inclusive); 11.1.9 the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or 11.1.10 there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010). 11.2 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement will remain in full force and effect. 11.3 Termination or expiry of this agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this agreement which existed at or before the date of termination or expiry.
12.1 Variation The terms of this agreement will prevail over any inconsistent terms or clauses contained in or referred to in the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing. No addition to, variation of, exclusion or attempted exclusion of any term of this agreement will be binding on CRI unless in writing and signed by a duly authorised representative of CRI. 12.2 Force majeure CRI reserves the right to defer the date of delivery, or to cancel this agreement or reduce the amount of Equipment, Consumables or Support and Maintenance Services ordered, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of CRI or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. 12.3 Waiver No failure or delay by a party to exercise any right or remedy provided under this agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy. 12.4 Severance If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it will 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 partprovision will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause will not affect the validity and enforceability of the rest of this agreement. 12.5 Entire agreement This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this agreement it does not rely on, and will have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. 12.6 Assignment The Customer will not, without the prior written consent of CRI, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement. 12.7 Third party rights No one other than a party to this agreement and their successors and permitted assignees, will have any right to enforce any of its terms. 12.8 Notices 12.8.1 Any notice given to a party under or in connection with this agreement will be in writing and will be delivered by hand or by pre-paid first-class post or other next working day delivery service to the following address or sent by email to the following email address (or such replacement address or email address as given by the applicable party for the service of notices from time to time): 18.104.22.168 For notices to the Customer, the address or email address set out in the Contract Particulars. 22.214.171.124 For notices to CRI: Address: 17c Dolphin Park, Upper Field Road, Eurolink Industrial Estate, Sittingbourne ME10 3UP Email: [email protected] 12.8.2 Any notice will be deemed to have been received: 126.96.36.199 if delivered by hand, on signature of a delivery receipt; 188.8.131.52 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the business day (being Monday – Friday (excluding bank holidays) after posting; 184.108.40.206 if sent by email, at 9.00 am on the next business day after sending. 12.8.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. 12.9 Governing law and Jurisdiction This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation disputes or claims) are governed by and construed in accordance with the law of England and Wales and each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales.