BTSL Conditions of Sale – Bio-Tech Solutions Ltd

BIO-TECH SOLUTIONS LTD

CONDITIONS OF SALE

1.DEFINITIONS

1.1 In these Conditions the following words have the following meanings:

“The Seller” means Bio-Tech Solutions Ltd “The Buyer” means the person, firm or company purchasing the Goods from the Seller;

“The Goods” means goods or any part thereof to be supplied by the Seller for the Buyer;

“An Act of Insolvency” means in the case of an individual Buyer becoming bankrupt or being the recipient of a statutory demand which is not satisfied within the period specified therein or applying for an interim order within the meaning of the Insolvency Act 1986 and in the case of a corporate Buyer means entering into liquidation whether compulsory or voluntarily (but not for the amalgamation or reconstruction of a solvent company) or having a receiver or administrative receiver appointed or being subject to a petition for the appointment of an administrator or in both cases means entering into any arrangement with creditors or having distress or execution levied on the Buyer’s goods.

1.2. In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.

1.3. In these Conditions references to the masculine include the feminine, and the neuter and to the singular include the plural and vice versa as the context admits or requires. 1.4. In these Conditions headings will not affect the construction of these Conditions.

2.BASIS OF CONTRACT

2.1 Any estimate issued by the Seller comprises an invitation to trade and is open for a period of 30 days from its date unless the Seller has previously withdrawn it. Any order placed by the Buyer comprises an offer and is subject to acceptance by the Seller on the terms of these Conditions and if placed orally must be confirmed in writing if requested by the Seller.

2.2 No contract shall subsist between the Buyer and Seller for orders placed via the Seller’s web-site unless and until the Seller confirms the order in writing, by Fax, e-mail or otherwise.

2.3 All estimates are given subject to, and all orders must be placed, and are accepted upon, these Conditions alone to the exclusion of any other terms and conditions inconsistent therewith which a Buyer might seek to impose even though such other terms and conditions may be submitted in a later document or purport to exclude or supersede any conditions inconsistent with them or may be contained in any offer acceptance or counter-offer made by the Buyer.

2.4 No agent or salesman of the Seller has authority to give any guarantee or warranty on behalf of the Seller or to transact business other than on the terms of these conditions. No amendment to these conditions of sale will be binding on the Seller unless it is signed by a Director of the Seller.

2.5 These Conditions apply to all purchases of goods from the Seller whether from its UK web-site or otherwise. The Seller reserves the right to refuse to accept orders and all goods are subject to availability.

2.6 If any of these conditions (or any part thereof) are held to be invalid such invalidity shall not affect the validity of any other conditions (or parts thereof) and each condition is capable of independent existence.

3.PRICE

3.1 Unless otherwise stated all prices are exclusive of VAT which will be added at the rate current on collection. All prices quoted are “ex works loaded”.

3.2 The Seller may before manufacture, adjust the price of the Goods, with reasonable notice, to take account of any:

3.2.1 Increases in the cost of raw materials, labour, services or production generally will be notified and agreed prior to price adjustments;

3.2.2 expenses incurred in supplying the Goods arising from circumstances outside the Seller’s control and not provided for in any estimate;

3.2.3 changes in requirements requested by the Buyer.

3.3 All packaging (excluding primary packaging), delivery and transport charges and insurance are not included in the price (unless there is an agreed variation to this contract) and will be charged extra at the Seller’s then current rates for the same.

4.TERMS OF PAYMENT

4.1 All monies are due and payable under these conditions must be paid by Irrevocable Letter of Credit Confirmed on a U.K. bank for all overseas buyers. In the UK all credit lines will be subject to approval prior to credit terms being granted. Where and if a Factoring facility is employed for the purpose of sale then the buyer irrevocably submits to the terms thereof without condition.

4.2 The Seller may charge interest at 5% per cent per month above Bank of England base lending rate for the time being on all overdue accounts and interest shall accrue on a daily basis from the due date for payment.

4.3 Time for payment shall be of the essence.

4.4 The Buyer waives all rights of “set off”, statutory or otherwise. The Buyer shall not be entitled to withhold payment of any amount which has become due to the Seller under normal payment terms, which is due to any prevailing or disputed claim by the Buyer in respect of other alleged faulty goods. This in itself is subject to Clause 10.4. In regard to any other alleged breach of contract, the Buyer shall not be entitled to “set-off” against any amount payable under the contract to the Seller any monies which are or are purported to be due and payable by the Seller. Contras of accounts payable will not be allowed.

4.5 The Seller may at its discretion demand security for payment before continuing with or delivering any Goods, either in the form of a deposit, a security bond or full Proforma.

4.6 No order which has been accepted by the Seller may be cancelled by the Buyer, except with the agreement in writing of the Seller and on terms that the Buyer shall be liable to indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

4.7 If after concluding the contract, circumstances come to the attention of the Seller which would in the opinion of the Seller seriously reduce the credit worthiness of the Buyer, the Seller is entitled to require either evidence from the Buyer as to his ability to settle all liabilities owed to the Seller by the Buyer or cash payment in advance and all money due to the Seller becomes at the Seller’s discretion due and payable immediately and the Seller is empowered to cancel all supply contracts not yet executed.

4.8 No payment shall be deemed to have been received until the Seller has received cleared funds.

4.9 All consignments of goods for export will be paid for at least five working days prior to despatch from the Sellers premises by Confirmed Irrevocable Letter of Credit paid into the Sellers UK bank, which is not negotiable or conditional in any way what so ever, except by prior specific written agreement.

5.DELIVERY OF GOODS AND PROVISION OF SERVICES

5.1 Delivery to the buyer shall be deemed to have been effected when the Goods are completed, and subsequently loaded by the seller at the Sellers premises, collection having been arranged by the Buyer.

5.2 The Seller shall use its reasonable endeavours, subject to Clause 15, to deliver the Goods at the time stated. Save as above the Seller shall not be liable for any loss (including loss of profit), costs, charges or expenses caused directly or indirectly whatsoever or howsoever arising caused by its non-delivery on the due date. Time of delivery is the essence of the contract, but this may be affected due to circumstances beyond the Sellers control and will therefore be deemed to be force majeure.

5.3 Any length of time or any date named or accepted by the Seller for delivery of the Goods or provision of the Services is an estimate only unless specifically agreed at the time an order is placed.

5.4 The Seller reserves the right to make delivery by instalments and to tender a separate invoice in respect of each instalment.

5.5 When delivery is to be made by instalments or if the Seller exercises its right to deliver by instalments, delay in the delivery of any one or more instalments, for whatever reason, will not entitle the Buyer to repudiate the contract or to claim damages.

5.6 Where delivery is refused, delayed, suspended or made by instalments, at the request of the Buyer, or where the Seller is unable to deliver the Goods by reason of circumstances beyond its control, the Seller may on giving notice to the Buyer of its readiness or intention to deliver be entitled to treat the contract as fulfilled and shall then place the Goods into store. Delivery will be deemed to then have taken place for the passing of risk and the invoicing for payment. The Seller shall at the Buyer’s request, and in any event may, arrange insurance covering the major perils endorsing its own interest. The cost of storage and insurance of the Goods shall be recoverable by the Seller from the Buyer, in accordance with the Technical and Supply Agreement Appendix 1.

5.7 Where any contract is for the delivery of Goods by instalments and any one or more such instalment remains outstanding when due for payment, the Seller shall be entitled to suspend work, delay or withhold delivery until payment has been received in full.

5.8 For the avoidance of doubt Goods once delivered cannot be returned or exchanged without the Seller’s prior written consent.

5.9 With the Buyer’s agreement the Seller may deliver to the Buyer a quantity of Goods of up to 10% more or less than the quantity accepted by the Seller the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.

6.INSPECTION/SHORTAGES

6.1 The Buyer must wherever possible inspect the Goods on delivery.

6.2 Where the Goods cannot be examined the carrier’s note or such other note as appropriate should be marked “not examined by the Buyer”.

6.3 The Seller shall not be liable:

6.3.1 for any defects, which would have been revealed by careful inspection if the preceding terms have not been observed;

6.3.2 Unless notice of a claim is given in writing to the Seller within 7 days of when the Buyer was or ought reasonably to have been aware of any alleged defect; and

6.3.3 unless a fair and reasonable opportunity to inspect the Goods is given to the Seller before any use is made thereof or any alteration or modification is made thereto;

6.4 In any event the Seller shall not be liable to the Buyer in respect of any damaged or defective Goods if such Goods have not been handled or stored by the Buyer in accordance with the terms of these conditions.

7.RISKS AND RETENTION OF TITLE

7.1 The Goods are at the risk of the Buyer from the time of dispatch from the seller’s place of manufacture where so ever this may be. With regard to exports the buyer must insure the goods for the full invoice value or have insurance fully agreed with the seller as an integral part of the sales contract.

7.2 Title to the Goods shall remain in the Seller or his agent (Factor) until full payment of all monies due from the Buyer to the Seller has been made, or title is properly vested in some other person by the operation of any statute. The Romolpa (all monies) Clause is applicable and binding in this contract and remains in force throughout the duration of this contract.

7.3 Until title to the Goods passes, the Buyer: 7.3.1 will hold the Goods as fiduciary agent and bailee for the Seller;

7.3.2 Must keep the Goods free from any charge, lien or other encumbrance; 7.3.3 Must not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; 7.3.4 Must maintain the Goods in satisfactory condition and insured, on the Seller’s behalf, for their full price against all risks to the reasonable satisfaction of the Seller.

7.3.5 Must hold the proceeds of the insurance referred to in clause 7.3.4 on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn bank account;

7.4 The seller may by notice revoke the power of sale and use if the Buyer is in default for longer than 7 days in the payment of any sum due to the Seller or if the Seller has any bona fide doubts as to the solvency of the Buyer

7.5 The Buyer’s power of sale and use shall automatically cease if the Buyer commits or suffers an Act of Insolvency or charges or encumbers any of the Goods;

7.6 Upon determination of the Buyer’s power of sale and use the Buyer shall place at the Seller’s disposal any of the Goods in its possession or under its control and hereby authorises the Seller to enter its premises or the premises of any other third party to recover such Goods.

7.7 The Seller may while owner of the Goods (and without prejudice to any other rights it may have under or by virtue of its contract with the Buyer) demand the immediate return of the Goods at any time and the Buyer shall forthwith comply with such demand and bear the expenses for such return.

7.8 If the Buyer fails forthwith to return the Goods so demanded by the Seller, the Seller or its successors in title to the Goods and their respective employees and agents may enter onto the Buyer’s premises during normal working hours for the purpose of demanding the Goods (the cost of doing which shall be borne by the Buyer) or may sell or otherwise deal with the Goods.

7.9 The Seller may appropriate any payment made by the Buyer in settlement of such invoices as the Seller in its absolute discretion thinks fit notwithstanding any purported appropriation to the contrary. 7.10 Notwithstanding the provisions of this clause the parties agree that for accounting and taxation purposes the Goods will be treated as the Buyer’s stock from the date of delivery.

8.LIENS AND STOPPAGE

8.1 Until title in the Goods has passed to the Buyer the Seller may withhold delivery if the Buyer commits or suffers an Act of Insolvency.

8.2 Where title in the Goods has passed to the Buyer if payment is due but has not been made or if the Buyer commits or suffers an Act of Insolvency then the Seller has:

8.2.1 a specific lien on the Goods so long as the Seller is in possession of them; 8.2.2 a right of stoppage in transit;

8.2.3 a right of resale. 8.2.4 a general lien over all other goods of the Buyer in the possession power or custody of the Seller whether worked on or not. At the expiration of 14 days from the date of notification of exercise of lien to the Buyer the Seller shall be entitled to dispose of any such goods in every respect as if beneficially entitled to them and shall apply such proceeds to the debt owed by the Buyer

8.3 Nothing in this Condition shall affect the rights given to the Seller by ss.38-48 of the Sale of Goods Act 1979.

9.WARRANTY

No representation or specific warranty or specific guarantee is given by BTSL as to the suitability or fitness of the Goods for any particular purpose which may be claimed by the brand holder. However, as the manufacturer of the finished goods BTSL can and does guarantee the work undertaken and accepts responsibility for this [but not for problems resulting from free issue materials provided for the blend/concentrate or packaging specified or provided by the brand holder]. BTSL holds insurance to cover product liability and warrants against faulty manufacture. 10.LIABILITY10.1 The Buyer is relying on its own skill and judgement in relation to the Goods irrespective of any knowledge which the Seller or its servants or agents may possess or any representation the Seller or its servants or agents may have made, as to the purpose for which the Goods are supplied or their suitability. 10.2 Nothing herein contained shall be deemed to exclude or restrict the Seller’s liability for death or personal injury resulting from negligence of the Seller, its employees or agents. 10.3 The risk of accidental loss whilst the Goods are being returned will be borne by the Buyer. Title in returned or replaced Goods shall vest in the Seller once received by the Seller.

10.4 The seller’s liability is limited to replacing, or at the seller’s option, refunding the cost of damaged or defective goods supplied by the seller provided that the total liability of the seller for any one claim or for the total of all claims arising from any one act or default of the seller or its employees or agents shall not exceed the price of the goods to which the claim or claims relate.

10.5 The seller shall not be liable for any consequential or indirect loss, damage, costs, liabilities or expenses suffered by the buyer whether such loss, damage, costs, liabilities or expenses arise from breach of a duty in contract or tort in any other way except as expressly provided by these conditions.

10.6 The seller shall be under no liability in respect of any defect in the goods arising from any drawing, design or specification supplied by the buyer.

10.7 The seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the seller’s instructions (whether oral or in writing), or misuse or alteration or repair of the goods without the seller’s approval.

10.8 The seller shall not be liable in respect of a defect caused by materials not manufactured by the seller, in respect of which the buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the seller.

11.INDEMNITY

The Buyer shall keep the Seller and all its employees and agents indemnified from and against all costs, claims, demands, expenses, fines, penalties and all liability whatsoever which may be made against the Seller, its employees or agents or which the Seller, its employees or agents may sustain or incur:

11.1 As a result, whether directly or indirectly, of the Buyer’s breach of any of these Conditions, breach of contract, negligence, breach of statutory duty or any other act or omission;

11.2 arising out of or in connection with the use or sale of the Goods.

12.SALES VIA WEB SITE

12.1 No permission to copy, reproduce, modify or download any web site operated by the Seller, or any part of such site, is given and in particular nothing on any site may be reproduced for use in any publication, or distributed for any purpose without the proper written consent of the Seller.

12.2 Where the web site is hyper-linked to any site operated by any third party, the Seller accepts no responsibility or liability in respect of any product, service, material or information on such site. The presence of such sites shall not be deemed to be a recommendation or endorsement of such site by the Seller.

12.3 The Seller will not be liable for damages to, or viruses that may affect, any computer equipment, software, data or other property as a result of access to, use of or browsing of the Seller’s web-site or the downloading of any material, data, text or image.

12.4 All trademarks used in the Seller’s brochure, catalogue, web site or other materials belong to the Seller or the registered proprietor of such trademarks.

12.5 All rights relating to copyright, trademarks, know-how and any other intellectual property right in materials or information on any web-site operated by the Seller are reserved.

13.SALES OUTSIDE THE UK

13.1 Where the goods are supplied for sale outside the United Kingdom, the provisions of this clause 13 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions,

13.2 The Buyer shall be responsible for complying with any legislation, product registrations or regulations governing the importation and sale of the Goods into the country of destination and for the payment of local taxes and duties thereon and if requested should prove payment of the said taxes and duties to the satisfaction of the Seller.

13.3 Where the Buyer informs the seller that the goods are to be exported from the United Kingdom and the Buyer collects the goods from the Seller’s premises the Seller shall be entitled to require the Buyer to produce satisfactory evidence that the goods are to be exported from the United Kingdom.

13.4 In respect of every dispatch of the Goods to a destination within the EC the Buyer shall, prior to dispatch, provide the Seller with the full address of the destination warehouse, confirmation that the destination warehouse is an approved tax warehouse or is otherwise authorised to receive the Goods under duty suspension, the relevant reference number of that tax warehouse and the VAT reference number of the consignee.

13.5 In respect of every dispatch of the Goods to an EC destination the Buyer shall ensure (a) that the Goods shall be timorously accepted by the warehouse keeper at the destination address and (b) that the Administrative Accompanying Document travelling with the Goods is certified by the receiving warehouse keeper and returned to the Seller no later than 15 days after the Goods were delivered, or, in the event of loss of the documents, that the Seller is provided with adequate proof of delivery of the Goods to the satisfaction of the Customs and Excise or other relevant fiscal authority.

13.6 Sales outside of the EU will be at the buyers risk and the buyer will ensure that all local laws, rules and government duties and /or taxes are adhered to, paid and executed accordingly.

14.PALLETS

Where appropriate, the Seller will deliver the Goods on pallets. The Seller may invoice the

Buyer for the pallets but shall reimburse the Buyer in full for all pallets (or their equivalent) returned in good condition within three months of delivery. It is the Buyer’s responsibility to obtain written confirmation of the number of such pallets returned to the Seller.

15.FORCE MAJEURE

15.1 The Seller shall not be liable for any failure to deliver the Goods arising from circumstances outside the Seller’s control including but not limited to an act of God, war, riots, strikes and trade disputes (including by and with the Seller’s own employees), lock outs, fires, breakdowns, mechanical failures, disruption of energy supplies, interruption of transport, Government action or any other cause whatsoever outside the Seller’s control which affects the Seller’s business whether or not of like nature to those specified above, and the Seller shall give notice to the Buyer of any such events that will prevent or delay delivery.

15.2 If the circumstances preventing delivery are still continuing one month after the Buyer receives the Seller’s notice, then either party may by written notice cancel the contract in which event the Seller will refund any payment made on account (subject to deduction of any amount the Seller is entitled to claim from the Buyer) but will not be liable to compensate the Buyer for any further loss or damage caused by the failure to deliver.

16.ASSIGNMENT

The Buyer shall not assign or transfer or purport to assign or transfer any contract or the benefit thereof to any person whatsoever without the prior written consent of the Seller.

17.WAIVER

No waiver by the Seller of any breach of these Conditions or any contract incorporating these Conditions by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

18.NOTICES

18.1 Any notice shall be in writing and shall be deemed to have been duly given if sent by first class recorded post, facsimile or delivered to the party concerned at its address specified [in these Conditions/overleaf] or such other address as that party may from time to time notify in writing.

18.2 Notices shall be deemed to have been received

18.1.1 If sent by first class recorded post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);

18.1.2 If delivered by hand, on the day of delivery;

18.1.3 If sent by facsimile, on a working day before 4.00pm, at the time of transmission and otherwise on the next working day.

19.PROPER LAW AND JURISDICTION

Any dispute in relation to these terms and conditions shall be governed by and construed in accordance with English Law. All disputes shall be submitted to the exclusive jurisdiction of the English Courts.

20.TERMINATION

20.1 If the Buyer commits or suffers an Act of Insolvency the Seller shall immediately be discharged from further performance under this contract without prejudice to all its other rights.

20.2 If the Buyer commits a serious breach of this Agreement (and in the case of such a breach being remediable, and not a repeated breach, fails to remedy it within 7 days of receiving notice so to do), he will be deemed to have repudiated the contract.

20.3 The termination of a contract, howsoever occasioned, shall be without prejudice to any obligation or rights on the part of either party which have accrued prior to such termination and shall not affect or prejudice any provision of these terms and conditions which is expressly or by implication provided to come into effect on, or continue in effect after, such termination.

21.THIRD PARTY RIGHTS:

The parties hereby confirm that, notwithstanding any other provisions of these Conditions, these Conditions shall not and shall not purport to confer on any third party any rights to enforce any term of these Conditions for the purposes of Contracts (Rights to Third Parties) Act 1999.

22.ENTIRE AGREEMENT: This Agreement and any documents referred to in it shall constitute the entire agreement and understanding between the parties with respect of all matters, which are referred to herein.