CONDITIONS OF SALE BY PIMSEAL LIMITED (THE COMPANY)

1 INTERPRETATION

1.1 Definitions:

“Business Day” a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

“Company” Pimseal Limited (registered in England and Wales with company number 02961405).

“Conditions” the terms and conditions set out in this document as amended from time to time in accordance with Clause 16.4.

“Confidential Information” any information of a confidential nature concerning the business, affairs, customers, clients or suppliers of the other party or of any member of its group, including but not limited to information relating to a party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers.

“Contract” the contract between the Company and the Customer for the sale by the Company and the purchase by the Customer of the Goods in accordance with these Conditions.

“Customer” the person or firm who purchases the Goods from the Company.

“Equipment” the equipment, including Tooling, that is necessary for the manufacture of the Goods.

“Goods” the goods (or any part of them) set out in the Order.

“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, 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.

“Order” the Customer’s order for the Goods, as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Company’s quotation, or otherwise as the case may be.

“Tooling” tooling, dies, drills, moulds, presses, vessels, tools and machinery, and related items.

2 BASIS OF CONTRACT

2.1 These Conditions 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 ofdealing.

2.2 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 and any applicable specification are complete and accurate.

2.3 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.

2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

2.5 Any samples, drawings, descriptive matter or advertising produced by the Company and any descriptions or illustrations contained in the Company’s quotations, correspondence, website pages, specifications, data sheets, catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.6 A quotation for the Goods given by the Company shall not constitute an offer. A quotation shall only be valid for a period of 15 Business Days from its date of issue.

3 PRICES

3.1 Prices quoted are exclusive of VAT (unless otherwise stated) and are those in force at the date of quotation. The prices will remain firm for the period specified in the quotation or for such other period as may be notified by the Company to the Customer in writing.

3.2 The Company may, giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

3.2.1 any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in the cost to the Company of goods, raw materials or labour);

3.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or

3.2.3 there has been a manifest error in or omission in prices provided.

3.3 The Company may vary prices of Goods from time to time on giving 10 Business Days’ notice to the Customer. The price applicable to each Order shall be the latest price for the Goods which has been notified to the Customer at least 10 Business Days before the delivery date.

4 GOODS & EQUIPMENT

4.1 The Goods are described in the Company’s catalogue or on the Company’s website.

4.2 The Company reserves the right to amend the specification, formulation or manufacturing method of the Goods if required by any applicable statutory or regulatory requirements, including any recognised international standards applicable to the Goods.

4.3 The Equipment is and shall remain the absolute property of the Company. Any payments made by the Customer in respect of Equipment shall not confer any rights over or interest in any such Equipment nor shall ownership of the Equipment transfer from the Company to the Customer as a result of any such payment.

5 DELIVERY

5.1 Delivery dates or periods are approximates only and the time of delivery is not of the essence. The Company is not liable for the consequences of any delay to delivery of the Goods which 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.

5.2 Any delivery period begins on the date of the Company’s acceptance of the Customer’s Order as required by Clause 2 hereof or (if later) when the Company receives from the Customer any further information which it may require to proceed with the Contract. The Customer agrees to supply such information promptly and to accept the Goods within the delivery schedule or timetable specified in the Contract and to give any necessary instructions for delivery accordingly.

5.3 For all export Orders, unless otherwise agreed by the Company in writing, the Company shall deliver Goods to the Customer Ex Works (Incoterms 2020) for collection from the Company’s premises (or such other location agreed in writing by the parties) in accordance with the relevant Order and shall notify the Customer in writing when Goods are available for collection.

5.4 For non-export Orders, delivery of the Goods shall be by the Company’s nominated carrier and carriage will be payable in relation thereto, save where the Customer has chosen to collect Goods from the Company’s premises.

5.5 If special delivery arrangements are requested by the Customer they must be notified to the Company in writing within sufficient time to enable delivery to be made in accordance with the terms of the Order.

5.6 Delivery is completed on:

5.6.1 the completion of unloading of the Goods at the delivery location set out in the Order; or

5.6.2 upon collection of the Goods by the Customer or its nominated carrier, whichever is applicable.

5.7 Goods supplied by the Company shall be and thereafter remain at the Customer’s risk when:

5.7.1 the Goods leave the Company’s premises; or

5.7.2 where the Goods are to be collected by the Customer, when collection of the Goods has taken place by the Customer or its nominated carrier and the Customer shall be notified accordingly.

5.8 If the Company delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice. The Customer must provide any such notice within 5 Business Days of delivery of the Goods by the Company.

5.9 The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5.10 For the avoidance of any doubt, the Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Company, the Customer shall make those licences and consents available to the Company upon the Company’s reasonable request.

5.11 Goods will be packed in accordance with the Company’s normal practice from time to time prevailing but the Company reserves the right to alter the method of packing in respect of individual orders. Specific packing requested by the Customer will be charged in addition to normal rates.

6 RETENTION OF TITLE

6.1 Until full payment has been received by the Company for all Goods whatsoever supplied (including Goods supplied under any other Contract with the Company) at any time by the Company to the Customer then the following shall apply:

6.1.1 title in the Goods shall remain in the Company;

6.1.2 until title passes the Customer shall hold the Goods only as bailee for the Company and
shall:

  • store or mark them so that they can at all times be identified as the property of the Company;
  • not remove, deface or obscure any identifying mark or packaging on or relating the Goods; and
  • maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

6.1.3 subject to Clauses 6.1.4 and 6.1.5 below the Customer shall be at liberty to sell the Goods in the ordinary course of business on the basis that until title passes the entire proceeds of sale of the Goods shall not be mingled with other monies or paid into an overdrawn bank account and shall at all times be identifiable as the Company’s money but the Customer shall have no authority to enter into any contract of sale on behalf of the Company and any contract of sale accordingly be concluded in the name of the Customer;

6.1.4 the Company may at any time revoke the Customer’s power of sale by notice to the Customer if the Customer is in default for longer than seven days in the payment of any sum whatsoever due to the Company (whether in respect of the Goods or any other goods supplied at any time by the Company to the Customer or for any other reason whatsoever) or if the Company has bona fide doubts as to the solvency of the Company;

6.1.5 the Customer’s power of sale shall automatically cease if a receiver is appointed over any of the assets or the undertaking of the customer or a winding-up order or administration order is made against the Customer or the Customer goes into voluntary liquidation (otherwise than for the purpose of solvent reconstruction or amalgamation) or calls a meeting of or makes any arrangement or composition with creditors or commits any act of bankruptcy;

6.1.6 upon determination of the Customer’s power of sale under Clauses 6.1.4 and 6.1.5 above the Customer shall place the Goods and new products incorporating the Goods or any of them at the disposal of the Company who shall be entitled to enter upon any premises of the Customer for the purpose of removing such Goods and new products from such premises (including severance from the realty where necessary).

7 PAYMENT

7.1 The Company may invoice the Customer for the Goods on or at any time after Goods are despatched or the Customer is notified that the Goods are available for collection.

7.2 Payment by the Customer is due 30 days from the end of the calendar month in which the invoice for the Goods is sent to the Customer. The Company reserves the right to vary the terms of payment for export and internet sales.

7.3 All amounts due under the Contract shall be invoiced in pounds sterling unless otherwise agreed in writing by the Company. The Customer shall be fully responsible and liable for all bank charges levied in respect of any payment made under the Contract. The Customer shall reimburse any such bank charges incurred by the Company promptly on request.

7.4 If the Customer fails to pay the Company by the due date then in addition to all other remedies available to it and without limiting the generality of the foregoing the Company may:

7.4.1 suspend all further deliveries or supplies until payment is made in full;

7.4.2 cancel the Order and subsequent Orders insofar as Goods remain to be delivered or supplied thereafter;

7.4.3 charge interest at the rate of 4% per annum above the base lending rate of Barclay’s Bank from time to time from and including the date when the same fell due to be paid up to and including the date of payment, whether before or after judgment.

7.5 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). 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.

8 QUALITY

8.1 The Company shall provide and maintain a quality control and inspection system which is adequate to ensure in normal circumstances that the Goods are of marketable quality.

8.2 A sample of Goods may be provided by the Company upon request for test against the specification provided by the Customer. The Company reserves the right to raise a reasonable charge for the supply of such samples and for any non-standard certificate of conformity which the Company agrees to provide.

8.3 Information provided by the Company in drawings, specifications and data sheets is provided for guidance only and the Company does not warrant or guarantee that the Goods are fit for any particular purpose or application unless otherwise agreed in writing by the Company.

8.4 The Customer acknowledges and accepts that it bears sole responsibility for, and relies on its own skill and judgement in, evaluating and testing that Goods supplied by the Company under the Contract are fit for any use or purpose intended by the Customer prior to making use of or deploying the Goods. The Company shall have no liability whatsoever to the Customer which arises as a result of the Customer’s failure to carry out evaluations or tests in accordance with this Clause 8.4 prior to using or deploying the Goods.

8.5 Save as set out expressly in these Conditions, all warranties, conditions and other terms, including 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.

9 DEFECTIVE GOODS

9.1 The Company will use all reasonable endeavours to ensure that all Goods will conform to ISO2230, the written specification(s) (if any) provided by the Customer or referred to in the Contract or (if no such specifications is provided or referenced) to the relevant British Standard or internationally accepted specification for the Goods to be supplied and that the Goods will be free from material defects.

9.2 If within 10 days of receipt by the Customer of the Goods the Customer shall give written notice to the Company specifying:

9.2.1 that there is a defect or fault in the materials from which the Goods are made or in the manufacture of the Goods; or

9.2.2 that the Goods do not comply in some material respect with any sample or description provided by the Company to the Customer; or

9.2.3 the Goods do not comply with the Customer’s drawings, specifications or descriptions provided to the Company with the relevant Order including in each case details of the defect or non-compliance,

9.2.4 then at its own discretion the Company will either exchange or repair any such Goods provided always that the Company’s liability to do so shall not extend to any defect or fault in the Goods arises:

  • from damage sustained in transit or by reason of mishandling; or
  • by reason of the Goods being used for any purpose other than those for which the
  • Customer has notified the Company that they are intended prior to placing their Order or otherwise than in accordance with the Company’s advice; or
  • by reason of any drawings, designs, specifications or other similar materials supplied by the Customer;
  • by reason of the Goods having been wrongly installed by the Customer; or
  • by reason of the Goods being stored in improper conditions contrary to the Company’s instructions or ISO2230.

10 INTELLECTUAL PROPERTY RIGHTS

The Customer acknowledges that all Intellectual Property Rights used for the manufacture of the Goods that originate from the Company shall remain the exclusive property of the Company (or, where applicable, the third party licensor from whom the Company derives the right to use them).

11 INDEMNITY

The Customer shall indemnify the Company against all damage or injury to any person, firm or company and against all proceedings, charges and expenses for which the Company may become liable in respect of the Goods supplied under a Contract except to the extent admitted expressly in these Conditions and unless such damage or injury shall have been a direct result of the negligence of the Company and can be attributed to no other cause (whether in whole or in part).

12 LIMITATION OF LIABILITY

12.1 Nothing in this Contract shall limit or exclude the liability of either party for:

12.1.1 death or personal injury resulting from negligence;

12.1.2 fraud or fraudulent misrepresentation;

12.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;

12.1.4 the indemnity contained in Clause 10; or

12.1.5 any matter in respect of which it would be unlawful to exclude or restrict liability.

12.2 Without prejudice to Clause 12.1, the Company shall not under any circumstances
whatsoever be liable to the Customer, whether in contract, tort (including negligence) or
restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:

12.2.1 loss of profit;

12.2.2 loss of goodwill;

12.2.3 loss of business;

12.2.4 loss of business opportunity;

12.2.5 special, indirect or consequential damage including costs of repair.

12.3 Without prejudice to Clauses 12.1 and 12.2, the Company’s total liability arising under or in connection with this Contract, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the greater of £500 or the value of the Order in connection with which such liability has arisen.

13 FORCE MAJEURE

13.1 The Company shall not be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from a Force Majeure Event as defined in Clause 13.3. If the period of delay or non-performance continues for 3 months, the Customer may terminate this Contract by giving 30 days written notice to the Company.

13.2 The Company shall promptly notify the Customer to the extent that fulfilment of its obligations to the Customer has been prevented, hindered or delayed by Force Majeure Event.

13.3 A Force Majeure Event shall mean any circumstance beyond the control of the Company and shall include (without restricting the generality of the foregoing):

13.3.1 terrorist attack, riots, civil commotion, war or civil war, rebellion, national or international emergency, strikes, lockouts or other labour disputes;

13.3.2 an epidemic or pandemic and in each case, any effects arising from or in connection with the same including, but not limited to, any actions, recommendations, announcements or restrictions, related to its subject matter (whether made by a government body, authority, public health organisation or other similar official body) which affect the Company’s performance of its obligations under the Contract;

13.3.3 destruction or damage due to natural causes, floods, fires, explosions or breakdown of machinery;

13.3.4 any law, order of, or action taken by, a local, national, international, or public authority, including governments; and

13.3.5 shortage of labour, equipment, materials or supplies.

14 DEFAULT, INSOLVENCY, ETC

14.1 If the Customer shall default or commit a breach of this Contract or of any other of its obligations to the Company, or if any distress or execution shall be levied upon the Customer’s property or assets, or if the Customer shall make any arrangement or composition with creditor’s or commit any act of bankruptcy or if the Customer is a limited company and any resolutions or petition to wind up the Customer’s business (other than that for the purpose of amalgamation or reconstruction without insolvency), shall be passed or presented, or if a Receiver, Administrative Receiver or Administrator of the undertaking, property or assets or any part thereof of the Customer shall be appointed, or the Company reasonably apprehends that any of these is likely to occur, then the Company may without notice:

14.1.1 suspend delivery of the Goods;

14.1.2 terminate the Contract or any unfulfilled part thereof; and

14.1.3 stop any Goods in transit; and

14.1.4 recover any Goods from the Customer’s premises for which payment has not been made in full without prejudice to any other right or remedy which the Company may lawfully enforce or exercise.

15 CONFIDENTIALITY

15.1 Each party undertakes that it shall not at any time during this agreement and for a period of two years after termination disclose to any person any Confidential Information, except as permitted by Clause 15.2.

15.2 Each party may disclose the other party’s Confidential Information:

15.2.1 to its employees, officers, agents, consultants or subcontractors (Representatives) who need to know this information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its Representatives to whom it discloses the other parties Confidential Information comply with this Clause 15; and

15.2.2 as may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.

15.3 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this agreement are granted to the other party or to be implied from this agreement. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by either party now or in the future.

15.4 No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

16 GENERAL

16.1 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 validity, construction and performance of it shall be governed and construed by the law of England and the parties shall submit to the exclusive jurisdiction of the English Courts 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.

16.2 Any notice relating to the Contract shall be in writing and may be served or delivered to the party to be served in the case of a Company at its registered office and in case of an individual at his address notified in writing to the other party from time to time and notices sent by first class delivery mail shall be deemed to have been delivered seventy-two hours after posting and proof of due posting shall be sufficient evidence of delivery.

16.3 The headings in these Conditions are for ease of reference only and do not affect their construction and nor do they limit their scope.

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

16.5 The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

16.6 Entire agreement:

16.6.1 This Contract 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.

16.6.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

16.7 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. 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.

16.8 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.

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