TERMS & CONDITIONS FOR THE SALE OF GOODS

THE CUSTOMER’S SPECIAL ATTENTION IS DRAWN TO CLAUSES 4, 5, 6, 8, 9, AND 10

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions. In these Terms, the following definitions apply:

• Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force.
• Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
• CSS: C S Storage Limited, a company registered and incorporated in England and Wales with company number 05281274 and whose registered office is at 1a Roundhouse Court, South Rings Business Park Bamber Bridge, Preston, PR5 6DA.
• Charges: means:
  • (a) the charges for the sale and purchase of the Equipment; and
  • (b) any delivery charges, as set out in the Proposal (or otherwise varied in accordance with these Terms) and any other charges to be paid by the Customer to CSS in accordance with these Terms.
• Confirmation: the written acceptance of the Order issued by CSS.
• Contract: the contract between CSS and the Customer for the sale and purchase of the Equipment incorporating the Proposal and these Terms.
• Customer: the business to which CSS wishes to provide the Equipment and which wishes to enter into a Contract with CSS.
• Despatch: means Equipment leaving the Premises.
• Despatch Date: means the date on which the parties have agreed that Despatch shall take place.
• Equipment: the goods (or any part of them) set out in the Order, having been referred to initially within the Proposal.
• Force Majeure Event: means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters, extreme or adverse weather conditions, or default of suppliers or subcontractors.
• General Conditions: the general conditions referred to in the Proposal.
• Group: means CSS, CSS’s holding company or subsidiary companies, and the subsidiary companies of CSS’s holding company.
• Installation: means the installation of the Equipment at the Site by the Supplied Personnel.
• Intellectual Property Rights: means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral 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, rights in computer software, 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.
• Literature: CCS's catalogues, brochures, websites or such other applicable sales or promotional literature, materials or publications.
• Loss: actions, awards, charges, claims, costs, damages, demands, expenses, fees, fines, liabilities, losses, penalties, proceedings and settlements and Losses shall be construed accordingly.
• Order: the Customer's written purchase order (in whatever form this may be and which shall for the avoidance of doubt include email) for the sale and purchase of the Equipment raised in response to the Proposal and in accordance with clause 2 below.
• Order Period: has the meaning given in clause 2.2.
• Premises: means the location at which the Equipment is situated and from which it shall be transported to the Site.
• Proposal: CSS’s written Proposal or proposal to provide the Equipment to the Customer incorporating these Terms.
• Site: means the location at which the Customer elects for the Equipment to be delivered and used as set out in the Proposal or otherwise agreed between the parties.
• Specification: any specification for the Equipment, including any related plans, images and other drawings, that is referred to in connection with the product code relating to the Equipment in question.
• Supplied Personnel: means the personnel supplied by CSS to the Customer for the purposes connected with the Equipment as set out in the Proposal or otherwise envisaged by these Terms.
• Terms: the terms and conditions set out in this document as amended from time to time in accordance with clause 7.9.
• VAT: has the meaning given in clause 7.4.
• Warranty Period: has the meaning given in clause 5.3.

1.2 Interpretation. In these Terms, the following rules apply:

• (a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
• (b) A reference to a party includes its personal representatives, successors or permitted assigns.
• (c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
• (d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
• (e) A reference to writing or written includes emails.

1.3 Conflict. In the event of any conflict between the provisions of the Proposal and these Terms, the provisions of the Proposal shall, save to the extent of any manifest or obvious error, take precedence to the extent of any conflict.

2. FORMATION AND BASIS OF THE CONTRACT

2.1 These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2 The Proposal shall remain valid for a period of thirty (30) days unless otherwise specified, from the date specified on it (Order Period) and if the Customer accepts the position set out in the Proposal then it shall be required to raise an Order within the Order Period.

2.3 The Order constitutes an offer by the Customer to enter into a Contract in accordance with these Terms and shall not incorporate any other terms and conditions.

2.4 The Order shall only be deemed to be accepted when CSS issues the Confirmation, at which point and on which date the Contract shall come into existence.

2.5 The Customer is responsible for ensuring that the terms of the Order are complete and accurate.

2.6 Any descriptive matter, or advertising produced by CSS and any descriptions or illustrations contained in the Literature are produced for the sole purpose of giving an approximate idea of the Equipment referred to in them. They shall not form part of the Contract or have any contractual force.

3. EQUIPMENT

3.1 The Equipment is described in the Literature as modified by any applicable Specification.

3.2 To the extent that the Equipment is to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify CSS against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by CSS in connection with any claim made against CSS for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with CSS's use of the Specification. This clause 3.2 shall survive termination of the Contract.

3.3 CSS reserves the right to amend the Specification if required by any Applicable Laws or regulatory requirement, and CSS shall notify the Customer in any such event.

4. DELIVERY

4.1 CSS shall ensure that:

• (a) Each delivery of the Equipment is accompanied by a delivery note which shows the date of the Order, the contract number and all relevant Customer and CSS references, the type and quantity of the Equipment (including the code number of the Equipment, where applicable), special storage instructions (if any); and
• (b) If CSS requires the Customer to return any packaging material to CSS, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as CSS shall reasonably request. Returns of packaging materials shall be at CSS's expense.

4.2 CSS shall deliver the Equipment to the Site or such other location as the parties may agree at any time after CSS notifies the Customer that the Equipment is ready.

4.3 Delivery is completed on the completion of unloading of the Equipment at the Site.

4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. CSS shall not be liable for any delay in delivery of the Equipment that is caused by a Force Majeure Event or the Customer's failure to provide CSS with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.

4.5 If CSS fails to deliver the Equipment, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Equipment. CSS shall have no liability for any failure to deliver the Equipment to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide CSS with adequate delivery instructions for the Equipment or any relevant instruction related to the supply of the Equipment.

4.6 If the Customer fails to accept delivery of the Equipment within three Business Days of CSS notifying the Customer that the Equipment is ready, then, except where such failure or delay is caused by a Force Majeure Event or by CSS's failure to comply with its obligations under the Contract in respect of the Equipment:

• (a) delivery of the Equipment shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which CSS notified the Customer that the Equipment was ready; and
• (b) CSS shall store the Equipment until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.7 If ten Business Days after CSS notified the Customer that the Equipment was ready for delivery the Customer has not taken delivery of them, CSS may resell or otherwise dispose of part or all of the Equipment and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Equipment or charge the Customer for any shortfall below the price of the Equipment.

4.8 CSS may deliver the Equipment by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5. QUALITY

5.1 CSS warrants that on delivery and for the period set out in the Proposal or, if no such period is set out, the period of 12 months from the date of delivery (Warranty Period), the Equipment shall:

• (a) Conform in all material respects with its description and any applicable Specification; and
• (b) Be free from material defects in design, material and workmanship.

5.2 Subject to clause 5.3, if:

• (a) The Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Equipment does not comply with the warranty set out in clause 5.1;
• (b) CSS is given a reasonable opportunity of examining such Equipment; and
• (c) The Customer (if asked to do so by CSS) returns such Equipment to CSS's place of business at the Customer's cost,

CSS shall, at its option, repair or replace the defective Equipment, or refund the price of the defective Equipment in full.

5.3 CSS shall not be liable for the Equipment's failure to comply with the warranty in clause 5.1 if:

• (a) The Customer makes any further use of such Equipment after giving notice in accordance with clause 5.2;
• (b) The defect arises because the Customer failed to follow CSS's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Equipment or (if there are none) good trade practice regarding the same;
• (c) The defect arises as a result of CSS following any drawing, design or Specification supplied by the Customer;
• (d) The Customer alters or repairs such Equipment without the written consent of CSS;
• (e) The defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
• (f) The Equipment differs from its description or the Specification as a result of changes made to ensure they comply with Applicable Laws.

5.4 Except as provided in this clause 5, CSS shall have no liability to the Customer in respect of the Equipment's failure to comply with the warranty set out in clause 5.1.

5.5 The terms of these Terms shall apply to any repaired or replacement Equipment supplied by CSS under clause 5.2.

6. TITLE AND RISK

6.1 The risk in the Equipment shall pass to the Customer on completion of delivery.

6.2 Title to the Equipment shall not pass to the Customer until CSS has received payment in full (in cash or cleared funds) for:

• (a) The Equipment; and
• (b) Any other goods that CSS has supplied to the Customer in respect of which payment has become due.

6.3 Until title to the Equipment has passed to the Customer, the Customer shall:

• (a) Store the Equipment separately from all other goods held by the Customer so that they remain readily identifiable as CSS's property;
• (b) Not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment;
• (c) Maintain the Equipment in satisfactory condition and keep them insured against all risks for their full price on CSS's behalf from the date of delivery;
• (d) Notify CSS immediately if it becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and
• (e) Give CSS such information relating to the Equipment as CSS may require from time to time.

6.4 If before title to the Equipment passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d), or CSS reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Equipment has not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy CSS may have, CSS may at any time require the Customer to deliver up the Equipment and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Equipment is stored in order to recover them.

7. CHARGES AND PAYMENT

7.1 The price for the Equipment shall be the price set out in the Proposal or, if no price is quoted, the price set out in CSS's published price list as at the date of delivery. The price of the Equipment is exclusive of all costs and charges of packaging, insurance, transport of the Equipment, which shall be paid by the Customer when it pays for the Equipment.

7.2 CSS may invoice the Customer for the Equipment on or at any time after the completion of delivery.

7.3 The Customer shall pay each invoice submitted by CSS:

• (a) Within thirty (30) days of the date of the invoice or in accordance with any credit terms agreed by CSS and confirmed in writing to the Customer; and
• (b) In full and in cleared funds to a bank account nominated in writing by CSS, and time for payment shall be of the essence of the Contract.

7.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax (VAT) chargeable from time to time. Where any taxable supply for VAT purposes is made under the Contract by CSS to the Customer, the Customer shall, on receipt of a valid VAT invoice from CSS, pay to CSS such additional amounts in respect of VAT as are chargeable on the supply of the Equipment at the same time as payment is due for the supply of the Equipment.

7.5 If the Customer fails to make any payment due to CSS under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of four per cent (4%) per annum above National Westminster Bank Plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

7.6 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). CSS may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by CSS to the Customer.

7.7 CSS may increase the price of the Equipment, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Equipment to CSS that is due to:

• (a) Any factor beyond the control of CSS (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
• (b) Any request by the Customer to change the delivery date(s), quantities or types of Equipment ordered, or the Specification; or
• (c) Any delay caused by any instructions of the Customer in respect of the Equipment or failure of the Customer to give CSS adequate or accurate information or instructions in respect of the Equipment.

8. LIMITATION OF LIABILITY

8.1 Nothing in these Terms shall limit or exclude CSS's liability for:

• (a) Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
• (b) Fraud or fraudulent misrepresentation;
• (c) Breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
• (d) Any matter in respect of which it would be unlawful for CSS to exclude or restrict liability.

8.2 Subject to clause 8.1:

• (a) CSS shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
• (b) CSS's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed one hundred per cent (100%) of the price of the Equipment.

9. TERMINATION

9.1 Without limiting its other rights or remedies, CSS may terminate this Contract with immediate effect by giving written notice to the Customer if:

• (a) 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 seven (7) days of that party being notified in writing to do so;
• (b) 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;
• (c) The Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
• (d) The Customer's financial position deteriorates to such an extent that in CSS's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

9.2 Without limiting its other rights or remedies, CSS may suspend provision of the Equipment under the Contract or any other contract between the Customer and CSS if the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d), or CSS reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

9.3 Without limiting its other rights or remedies, CSS 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.

9.4 On termination of the Contract for any reason the Customer shall immediately pay to CSS all of CSS's outstanding unpaid invoices and interest.

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

9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

10. FORCE MAJEURE

10.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly.

10.2 The Customer shall continue to pay all Charges during the Force Majeure Event except in relation to any Equipment that is prevented from being provided during the Force Majeure Event.

10.3 If the period of delay or non-performance continues for six (6) weeks, the party not affected may terminate the Contract by giving seven (7) days written notice to the affected party.

11. GENERAL

11.1 Assignment and other dealings.

• (a) CSS may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
• (b) The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of CSS.

11.2 Confidentiality.

• (a) Each party undertakes that it shall not at any time during the Contract, and for a period of five (5) years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or CSS's suppliers, except as permitted by clause 11.2(b).
• (b) Each party may disclose the other party's confidential information:
  • (i) To its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.2; and
  • (ii) As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
• (c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.

11.3 Entire agreement.

• (a) 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 CSS which is not set out in the Contract.
• (b) Any samples, drawings, descriptive matter or advertising issued by CSS and any descriptions or illustrations contained in the CSS's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Equipment described in them. They shall not form part of the Contract or any other contract between CSS and the Customer for the supply of the Equipment.

11.4 Variation.

• (a) No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.5 Waiver.

• (a) A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
• (b) A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.
• (c) No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

11.6 Severance.

• (a) 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.
• (b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

11.7 Notices.

• (a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post or other next working day delivery service, commercial courier, or email.
• (b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.7(a); if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or if sent by email, one Business Day after transmission.
• (c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

11.8 Third party rights.

• (a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

11.9 Governing law.

• (a) 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.

11.10 Jurisdiction.

• (a) 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 the Contract or its subject matter or formation.