TERMS OF TRADING

1. APPLICATION OF TERMS

1.1. Unless otherwise expressly agreed in writing between the parties these terms of Trading and Terms (“Terms”) apply to all agreements for the provision of goods, parts, and equipment (together “Goods”) to the Customer of the Goods by the Seller.
1.2 Unless otherwise expressly agreed in writing between the parties these terms of Trading and Terms (“Terms”) apply to all agreements for the provision of Software, Software Support, Equipment Support and Professional Services (together “Services”) to the Customer of the Services by the Seller.  
1.3. In these Terms, a “Contract” means an agreement between the Customer and the Seller for the sale and purchase of Goods and Services.
1.4. No terms or Terms endorsed on, delivered with or contained in the Customer’s purchase order, confirmation order, specification order or other document shall apply or form part of any Contract.

2. ORDERS

2.1. The Seller shall supply to the Customer a pricing proposal for Goods and Services setting out the price and estimated lead time (the “Proposal”). The proposal may be presented to the Customer as a paper document or by email or as content provided through the Seller’s web site or web-store or other online media.
2.2. Each written order or acceptance of a Proposal by the Customer and any accompanying specifications (“Order”) shall be deemed to be an offer to purchase Goods and Services subject to these Terms.
2.3. No Order placed by the Customer shall be deemed to be accepted by the Seller until the Seller has issued a written order acknowledgement (“Order Acknowledgement”) or (if earlier) the Seller delivers the Goods to the Customer. The Order Acknowledgement may be provided to the Customer as a paper document or by email or as content provided through the Seller’s web site or web-store or other online media.
2.4. The Customer shall ensure that the terms of its Order are complete and accurate.
2.5. The quantity and description of the Goods and Services shall be as set out in the Order Acknowledgement.

3. ORDER SPECIFICATIONS

3.1. All samples, drawings, descriptive matter, specifications of Goods and Services (together “Specifications”) and advertising issued by the Seller and any descriptions contained in the Seller’s catalogues, websites or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
3.2. The Seller remains at all times the owner or licensee (where applicable) of the Specifications and any intellectual property rights arising out of the Specifications and/or Goods, including, without limitation, all copyright, registered and unregistered design rights, trade marks and patents shall remain the sole property of the Seller.
3.3. If the Customer is supplying designs, plans, specifications or any equipment to be used in the development and provision of the Goods then the Customer shall supply all the requisite information in the form required by the Seller. The Customer shall be responsible for the accuracy and completeness of such information.

4. PRICES AND PAYMENT TERMS

4.1. Unless otherwise agreed and documented by the Seller in the Order Acknowledgement the price for the Goods and/or Services shall be ex-Works and exclusive of any taxes and all costs or charges in relation to packaging, loading, unloading, transportation, insurance, customs controls and testing or any alterations to the Goods and/or Services requested by the Customer or third party, all of which the Customer shall pay in addition when it is due to pay for the Goods and/or Services.
4.1.1 All prices for services are excluding any applicable taxes for that service. If any taxes are due, then where applicable they will be added to the invoiced cost.
4.2. Unless otherwise agreed and documented by the Seller in the Order Acknowledgement payment is due in Pounds Sterling and shall be made in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
4.3. The Customer will make full payment to the seller at the time of Order unless otherwise agreed and documented by the Seller in the Order Acknowledgement. When credit terms have been offered, agreed and confirmed in writing by the Seller payment will be made in full no later than 30 days from the date of invoice. Credit terms may be withdrawn by the Seller at any time, for any reason and without notice to the Customer.
4.4. All payments from Customers based outside of the UK must be made by direct bank transfer, accepted payment card or by other means as specifically agreed and documented by the Seller in the Order Acknowledgement.
4.5. If the Customer fails to pay the Seller any sum due pursuant to any Contract:

• the Customer shall be liable to pay interest to the Seller on such sum from the due date for payment at the annual rate of 5% above the base rate of Barclays Bank Plc accruing on a daily basis until payment is made; and
• the Seller shall be entitled to, without liability, suspend delivery or performance until payment is made and to terminate or suspend all other Contracts with the Customer where delivery or performance by the Seller is outstanding.
• Where the Customer fails to pay the proforma invoice for Goods and such Goods have not been collected from the Seller within 7 calendar days of being ready for collection, then a storage charge as per clause 6.1 will additionally apply.

5. RESERVATION OF TITLE

5.1. Ownership of the Goods shall not pass to the Customer until the Seller has received in full (in cash or in cleared funds) all sums due in respect of the Goods; and all other sums which are or become due to the Seller from the Customer.
5.2. Until ownership of the Goods has passed to the Customer, the Customer shall, at its own cost only:

• hold the Goods on a fiduciary basis as the Seller’s bailee;
• store the Goods separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Seller’s property;
• not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
• not resell or transfer the Goods; and
• maintain the Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks to the Seller’s reasonable satisfaction. On request, the Customer shall produce the policy of insurance to the Seller.

5.3. The Customer’s right to possession of the Goods shall terminate immediately if:

• the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) or has a receiver and/or manager, administrator or administrative receiver appointed of its business or any part thereof, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
•  the Customer encumbers or in any way charges any of the Goods.

5.4. The Customer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
5.5. On termination of any Contract, howsoever caused, the Seller’s (but not the Customer’s) rights contained in this clause 6 shall remain in full force and effect.

6. DELIVERY - TRANSPORTATION

6.1. Unless otherwise agreed and documented by the Seller in the Order Acknowledgement, the Customer shall take delivery of the Goods at the Seller’s place of business within 7 calendar days of the Seller giving the Customer notice that the Goods are ready for delivery. Where Goods are not collected within this timeframe, after 7 calendar days a storage charge of 5% of the order value per calendar week or part thereof, shall be due from the Customer, subject to a minimum fee of £50 per week.
6.2. Any dates specified by the Seller for collection of the Goods are intended to be an estimate only and time for delivery shall not be of the essence. If no dates are specified, delivery shall be within a reasonable time. Where the Customer is collecting the Goods from the Seller’s place of business and exporting the Goods from the UK for export then they agree to supply the Seller proof of export of those Goods.
6.3 Should the Customer fail to pay the shipping agent for shipment of Goods and this charge is billed to the Seller by the shipping agent, such charges will be invoiced to the Customer by the Seller with an additional administration and handling charge, such administration and handling charge to be 10% of the total Order subject to a minimum administration and handling charge of £100 GBP.
6.4. Risk in the Goods passes to the Customer as soon as the Goods leave the Seller’s premises.
6.5. If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:

• risk in the Goods shall pass to the Customer (including for loss or damage caused by the Seller’s negligence);
• the Goods shall be deemed to have been delivered; and
• the Seller may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

6.6. The Customer shall provide at the delivery point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
6.7. The Seller reserves the right to defer the date of delivery or to cancel a Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in performing its obligations due to any circumstances beyond the reasonable control of the Seller including, without limitation, any act of God, governmental actions, war or national emergency, acts of terrorism or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
6.8. Customs and import duties may be applied to International orders when the shipment reaches its destination. Such charges are the responsibility of the recipient of the Customer’s order and vary from country to country. It is the Customer’s responsibility to check with the local Customs office to verify whether the country to which the Goods are to be shipped permit the shipment of such Goods. The Seller is not responsible for any direct, indirect, punitive, or consequential damages that arise from improper international shipping practices.
6.9. Although information provided by the Seller may be accessible worldwide, not all Goods or services provided by the Seller are available to all persons or in all geographic locations or jurisdictions. The Seller reserves the right to limit the provision of it’s Goods or services to any person, geographic area, or jurisdiction it so desires and to limit the quantities of any Goods or services that it provides. Any offer to supply any Goods or service made by the Seller is void where prohibited.

7. PROFESSIONAL SERVICES AND WORK PRODUCTS.  

PROVISION OF PROFESSIONAL SERVICES

7.1 Subject to a binding Order being in existence for such services, Seller agrees to use reasonable endeavours to provide, and the Customer agrees to accept and make payment for, the Professional Services (if applicable).

OWNERSHIP OF WORK PRODUCT FROM PROFESSIONAL SERVICES  

7.2 Title and ownership in and to any Work Product and all Intellectual Property Rights and interests embodied therein shall vest with Seller unless otherwise specified in the applicable Statement of Requirements.  If notwithstanding this, any Intellectual Property Rights of whatever nature are acquired by the Customer in relation to the Work Product (including any new Intellectual Property Rights), the Customer hereby assigns all such Intellectual Property Rights to Seller and shall take all other steps and execute any documents Seller may request in order to ensure the effective transfer of such rights to Seller.
7.3 The rights granted to the Customer under this Clause 7 are subject to: (i) payment in full for all Professional Services rendered in creating the Work Product; and (ii) if applicable, the Customer maintaining a valid licence to use the Software to which the Professional Services and/or Work Product relates.
7.4 All pre-existing tangible materials provided by the Customer to Seller in connection with the Professional Services (the “Customer Content”) shall, as between the parties, be and remain the property of the Customer. The Customer grants to Seller the limited licence to use the Customer Content for the purposes of performing the Professional Services. All tangible materials existing prior to the provision of the Professional Services to the Customer and provided by Seller to the Customer in connection with the Professional Services (the “Seller Content”) shall, as between the parties, be and remain the property of Seller.

SELLER INTELLECTUAL PROPERTY

7.5 Ownership in and to anything conceived, developed or reduced to practice by Seller prior to or independent of its performance of the Professional Services and/or any modifications or derivative works in the Software whether developed under this Agreement or otherwise (and all Intellectual Property Rights and interests embodied therein) shall vest with Seller ("Seller Intellectual Property"). In addition, nothing in this Agreement shall limit Seller’s right to use in its business, any ideas, concepts, know-how, methods, techniques, templates or models which it develops or conceives of in connection with the provision of the Professional Services and which do not include Confidential Information of the Customer.

8.   SOFTWARE SUPPORT. 

8.1 Subject to a binding Order being in existence for such services, and in consideration of the Customer’s payment to Seller of the applicable support fees, Seller shall make available to the Customer (i) Updates and Upgrades; and (ii) access (via the Customer’s use of the internet, telephone or other means selected by Seller) to qualified technical personnel to report errors in the Software and/or Work Product (if applicable). Nothing in this Clause 8 shall entitle the Customer to receive Updates or Upgrades which are separately priced and licenced by Seller (or Seller’s Affiliate or Seller Supplier) as new products. 
8.2 For the avoidance of doubt, Software Support shall only be provided in respect of Work Product where separate Work Product Support fees are specified in a binding Order. 

TERM OF SOFTWARE SUPPORT

8.3 For the initial term specified in the applicable binding Order (the “Initial Term”), Seller shall provide to the Customer, during Seller’s normal business hours, the Software Support identified in the applicable binding Order and the Customer shall pay to Seller the applicable Software Support fees (including any applicable Work Product Support Fees).
8.4 At the end of the Initial Term, and on each anniversary thereafter, the term of the Software Support shall automatically be extended for further periods of twelve months if Seller issues an invoice to the Customer and the Customer does not notify Seller of its intention not to continue with Software Support within fourteen (14) days from the date of the invoice.  
8.5 Seller shall be entitled to invoice the Customer the appropriate Software Support fees (including any applicable Work Product Support Fees) annually in advance.

9.   EQUIPMENT SERVICES.  

9.1 Subject to a binding Order being in existence for such services, and in consideration of the Customer’s payment to Seller of the applicable Equipment Support and Equipment Maintenance fees Seller shall, in accordance with this Agreement, make available to the Customer the Equipment Services.
9.2 Seller shall only provide Equipment Services in respect of equipment for which Seller has agreed to provide Equipment Services under a binding Order. Whilst in most cases Seller only provides Equipment Services in respect of Equipment originally supplied by Seller to the Customer, the parties acknowledge that this may not always be the case and, for the purposes of this Clause 9, references to Equipment shall include references to any equipment for which Seller has agreed to provide Equipment Services, whether supplied by Seller or otherwise. 
9.3 Unless indicated otherwise, the hours of coverage for the provision of Equipment Services are 8.30am to 5:00pm, Monday through to Friday, excluding bank and public holidays.

EQUIPMENT SUPPORT

9.4 Equipment Support is a helpdesk offering to support the Customer’s use of the Equipment. It provides the Customer with access to qualified personnel, acting for or on behalf of Seller, to assist the Customer and answer Equipment-related usage concerns, including responding to operational, procedural or system problems experienced by the Customer with respect to its use of the Equipment. 

10. SOFTWARE LICENCE AND USE.

10.1 In consideration of the Customer’s payment of the Software licence fees, Seller grants to the Customer a perpetual, personal, non-transferable, non-exclusive right and licence to use the Software. Use of the Software shall be restricted to the Customer’s internal business use only and subject to any limitations including, without limitation, any user, unit quantity or other use restrictions set forth therein. The Customer acknowledges that additional fees will be payable on any additional or change of use approved by Seller. 
10.2 If the Customer acquires Software on a “per-user,” “per-unit” or other limited use basis (as identified in the applicable binding Order), the Customer agrees to immediately notify Seller if the actual quantity of users, units or other limitation exceeds the permitted restriction as indicated in the applicable binding Order and immediately remit to Seller additional Software licence fees and fees for Software Support in accordance with Seller’s then current policies and procedures.
10.3 The Customer may make up to two (2) back-up copies of the Software (excluding equipment operating system software) as may be necessary for archive and retrieval purposes. The Customer shall record the number and location of all copies of the Software and take steps to ensure the Software is kept secure at all times.
10.4 The Customer shall not make the Software or any copies of it available to any third party, and in particular the Customer agrees not to share with or sub-licence, transfer, hire, rent, lease or loan the Software to any third party. 
10.5 The Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, or make error corrections to the Software in whole or in part, nor attempt to do any such things, except only when and to the limited extent that mandatory applicable law expressly permits such activity irrespective of the limitations contained in these Terms.
10.6 Except as provided for in these Terms, this licence shall not (and the Customer shall not) permit any person to obtain, access, use, copy, alter, modify or adapt any source code version of the Software.
10.7 The Customer shall permit Seller or its authorised representative reasonable access to any premises and equipment where the Software is being kept or used, including, without limitation, any records maintained by or on behalf of the Customer which relate to such retention or use, for the purposes of ensuring that the Customer remains in compliance with the terms of this Agreement.
10.8 Risk of loss of the Software shall pass to the Customer upon Delivery.

11. UNFORESEEN EVENTS

If an event outside the parties’ control occurs, which affects the price of the Goods which has a prejudicial effect on the Seller’s ability to execute its obligations, the parties agree to negotiate a change in the Contract in good faith. By way of example, such events may include, without limitation: variations in raw material and energy prices, changes in customs duties, foreign exchange rates, salary rates and expenses related to the Order, changes in legislation, changes in the Customer’s financial situation and the necessary or legitimate change in the part or product specifications. If the parties are unable to reach an agreement to a revised price, either parties shall have the option of terminating the Contract without incurring any liability.

12. WEB SITE AND ON-LINE PRESENCE

12.1. The references and descriptions of Goods or services presented in promotional literature, reference material, technical documentation, or contained within the Seller’s web site or in other on-line locations are provided "as is" without any warranty of any kind, either express or implied. The Seller is not liable for any damages, including any consequential damages, of any kind that may result to the Customer from the use of the materials in the Seller’s web site or any other on-line location or any of the Goods or services described therein.
12.2. The Content included in the Seller’s web site has been compiled from a variety of sources and is subject to change without notice as are any products, programs, offerings, or technical information described in the Seller’s web site. The Seller makes no representation or warranty whatsoever regarding the completeness, quality, or adequacy of the web site or content, or the suitability, functionality, or operation of the Seller’s Web site or its content. By using the Seller’s web site, the Customer assumes the risk that the content in the Seller’s web site may be inaccurate, incomplete, offensive, or may not meet the Customer’s needs and requirements.
12.3. A possibility exists that the server materials could include inaccuracies or errors. Additionally, a possibility exists that unauthorized additions, deletions, and alterations could be made by third parties to the server materials. Although the Seller tries to ensure the integrity and the accurateness of the server materials, it makes no guarantees about their correctness or accuracy.

13. WARRANTIES

13.1. The Seller warrants that upon delivery, and for a period of 12 months from the date of delivery, the Goods are free from hidden defects and are fit for the purpose intended by the Seller.
13.2. The Seller shall not be liable for a breach of the warranty in clause 10.1 if

• the Customer fails to inform the Seller of the defect within 5 days of discovery of the defect;
• the defect arises because the Customer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning use or maintenance of the Goods or failed to follow good trade practice;
• the defect is attributable to an act or omission of the Customer or a third party;
• the defect is a result of the designs or specifications provided by the Customer to the Seller; or
• the defect is caused by other components or parts of the vehicle or sub-assembly in which the Good is incorporated.

SELLER PROFESSIONAL SERVICES WARRANTY 

13.5 Seller warrants that for so long as the Customer obtains Software Support and remits, on a timely basis, the related Software Support fees, the Software (excluding Third Party Software) shall be capable of functioning substantially in accordance with its related Documentation. 
With respect to Third Party Software, Seller shall either (a) procure for the Customer the benefit of any standard end-user warranties in respect of the Third Party Software from Seller’s Supplier(s) (whether by assignment from Seller or granted directly by Seller’s Supplier(s)) or (b) grant the Customer the same warranties that Seller receives from Seller’s Supplier(s) in respect of the Third Party Software. Details of these warranties are available on request. Where a direct warranty is given to the Customer by Seller’s Supplier, as referred to, Seller does not give any express warranties itself in respect of the Third Party Software. Changes requested by the Customer beyond the original order will be charged at prevailing rates to the Customer by the Seller.
 
13.6. All other warranties, conditions and other terms implied by law are, to the fullest extent permitted by law, excluded from the Contract.

14. LIMITATION OF LIABILITY

14.1. The following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

• any breach of these Terms;
• any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
• any representation, statement or tortious act or omission including negligence arising under or in connection with any Contract.
• 14.2. To the extent permitted by law, the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of a Contract shall be limited to the Contract price.

43. To the extent permitted by law, the Seller shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, loss of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with a Contract including, without limitation, any delay in the delivery of the Goods.

15. INTELLECTUAL PROPERTY RIGHTS

15.1. All intellectual property rights (“IPR”), including without limitation, copyright, trademarks, registered and unregistered design right, patents and know-how incorporated in documents, data, web sites, on-line locations, Goods delivered, Services performed and the results of its own research and development work remain the sole property of the Seller, who reserves the right to use the IPR for any purpose.
15.2. The Customer shall fully indemnify the Seller against any legal claim (including all costs, damages, expenses, legal fees incurred) that could be instituted against it due to its execution of an Order for Goods which include the Customer’s intellectual property rights or those of a third party supplied by the Customer to the Seller.
15.3. The Customer authorises the Seller to exhibit some of the Goods the Seller has produced under any Contract in any event such as a fair, tradeshow and exhibition. The Customer authorises the Seller to use these parts in its advertising, marketing and training documents.

16. CONFIDENTIALITY

In addition to the terms of any confidentiality agreement which the parties may have entered each party undertakes to maintain strictly confidential all oral and written information that it may obtain about the other during the negotiation and performance of the Contract, including without limitation, any Specification, samples or prototypes (“Confidential Information”). The Customer shall only disclose the Confidential Information as strictly required and shall procure that its employees, Sellers and subcontractors shall be subject to confidentiality undertakings. This clause shall not apply to any of the Confidential Information which, otherwise than through the default of the Customer becomes available to the public generally or the disclosure of which is ordered by a court of competent jurisdiction.

17. CANCELLATION, TERMINATION AND DEFERMENT

17.1. Orders which have been accepted by the Seller are final and binding. The Customer acknowledges and agrees that the Seller will incur costs and expenses as a result of the cancellation or deferment of any Order and as a result accepts that if it wishes to cancel all or part of an Order then it shall be liable to pay a cancellation charge (or the Seller may set-off such charge from any monies paid) as follows:

• If notice of cancellation or deferment of Order is received within two calendar weeks of the agreed delivery date then the full price of the Goods shall be payable; or
• If notice of cancellation or deferment of Order is received within four calendar weeks of the agreed delivery date then 50% of the price of the Goods shall be payable;
• If notice of cancellation or deferment of Order is received prior to four calendar weeks of the agreed delivery date but after the date of the Order Acknowledgement, then 35% of the total price of the Goods shall be payable;
• The parties agree that these cancellation and deferment charges are a fair representation of the losses which will be incurred by the Seller as a result of the Customer’s cancellation or deferment of an Order.

For the avoidance of doubt these cancellation charges also apply to orders which must be prepaid before the agreed despatch date.
17.2. Either party may terminate all Orders and Contracts with the other immediately upon written notice if the other party is in breach of any term of these Terms and has failed to remedy such breach within 30 days of receipt of written notice specifying the breach and requiring it to be remedied.

18. GENERAL

Neither party shall be entitled to assign these Terms or any Contract or any part of it without the prior written consent of the other.

19. ENTIRE AGREEMENT

These Terms, the Acknowledgement of Order and any confidentiality agreement entered between the parties (if applicable) represent the entire agreement between the parties relating to the sale of the Goods and supersede all prior agreements, arrangements and understandings relating to the sale of the Goods. In the event of any inconsistency between these documents the following order of priority shall apply: the provisions of the Acknowledgement of Order shall take priority, followed by any term of the confidentiality agreement (if applicable) and then the provisions of these Terms.

20. FORCE MAJEURE

The Seller shall not be liable to the Customer or deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Contract or to these Terms if the delay or failure is due to any act beyond the Seller’s reasonable control, including but without any limitation, any Act of God, explosion, flood, fire, war, act of terrorism or threat of, prohibitions or measure of any kind on the part of any governmental or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial action.

21. APPLICABLE LAW AND JURISDICTION

The Contract shall be governed by English law and the parties shall submit to the exclusive jurisdiction of the English Courts save in respect of enforcement which shall be non-exclusive.