T&C's - Design and Supply

These Conditions set out the terms upon which RTL Materials Ltd trading as Rolatube Technology (Rolatube) agrees to design and supply the Product to the Buyer.

1. DEFINITIONS

In these Conditions unless the context requires otherwise:

1.1 Buyer means the customer or client of RolaTube to whom RolaTube are to supply the Design Services and/or the Product.

1.2 Buyer Background IPR means any intellectual property rights in any specifications, designs or other documents provided by the Buyer for use in the manufacture of the Product or the provision of the Design Services.

1.3 Conditions means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by RolaTube.

1.4 Contract means any contract between RolaTube and the Buyer for the sale and purchase of the Product and/or provision of the Design Services, incorporating these Conditions in accordance with clause 2.3 below.

1.5 Deliverables means any documents, drawings, designs or other items to be delivered by RolaTube as part of the Design Services.

1.6 Delivery Date means the date(s), if any, when the Product and/or the Design Services are agreed to be delivered to the Buyer.

1.7 Design Services means the design, development and production services for the design, creation or improvement of the Product.

1.8 Foreground IPR means any intellectual property rights in the Deliverables created by RolaTube in the course of providing the Design Services and where, the Product is manufactured in accordance with the specifications provided by RolaTube, any intellectual property rights deriving from such specifications;

1.9 Product means the Product (if any) which is to be designed, created or improved by reason of the Design Services provided by RolaTube.

1.10 Price means the price for the Product and/or the Design Services plus Value Added Tax where applicable for which RolaTube agrees to supply the Product and/or the Design Services to the Buyer.

1.11 RolaTube Background IPR means all intellectual property rights in the Product, the Design Services or the Deliverables other than the Foreground IPR and the Buyer Background IPR.

2. ORDERS

2.1 Subject to any variation under clause 13, these Conditions shall apply to all Contracts to the exclusion of all other terms and conditions, including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document.

2.2 Any quotation is issued by RolaTube on the basis that no Contract will come into existence until RolaTube despatches an acceptance of the Buyer’s order in the form of an order acknowledgement (Order Acknowledgement) to the Buyer.

2.3 RolaTube will be under no liability for any order received until the Order Acknowledgement is delivered to the Buyer or (if earlier) RolaTube delivers the Product and/or Design Services to the Buyer at which time a Contract will be formed between RolaTube and the Buyer.

2.4 The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.

2.5 The Buyer acknowledges and agrees that when a sample of the Product has been shown to or inspected by the Buyer:

2.5.1 the sole purpose of doing so was to enable the Buyer to judge the quality of the bulk; and

2.5.2 the sale does not in consequence of the Buyer’s inspection of the sample or otherwise constitute a sale by sample.

3. PRICE AND PAYMENT

3.1 Payment of the Price shall be due to RolaTube from the Buyer within 30 days (or such shorter period as is stated by RolaTube in writing to the Buyer from time to time) of the date of RolaTube’s invoice addressed to the Buyer. The Buyer shall make no deduction of any type from such payments. An invoice may be submitted by RolaTube before the Product is despatched or delivered and/or the Design Services performed and in such event RolaTube shall be entitled to withhold despatch and delivery of the Product and/or the performance of the Design Services, if after 30 days from the date of the invoice the Product have not been paid for in full.

3.2 If the Product and/or the Design Services are to be delivered in instalments, RolaTube reserves the right to invoice the Buyer after each instalment has been delivered, and the provisions of these Conditions shall apply in full to such invoices as if such instalment was a separate Contract.

3.3 Time for payment shall be of the essence and failure by the Buyer to pay in accordance with the provisions of this clause shall entitle RolaTube, without prejudice to its right to damages, to suspend any outstanding deliveries or to cancel the Contract.

3.4 Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 2% above HSBC Plc Bank’s base rate from time to time in force and shall accrue at such a rate after as well as before any judgment.

3.5 Payment of RolaTube’ invoice must be made in sterling and by electronic bank transfer. The bank details are specified on RolaTube’ invoice.

3.6 All payments payable to RolaTube under the Contract shall become due immediately upon termination of the Contract despite any other provision.

4. THE PRODUCT

4.1 The description of the Product shall be as set out in any quotation provided by RolaTube to the Buyer or any applicable specification.

5. WARRANTIES AND LIABILITY

5.1 RolaTube warrants that the Product supplied at the time of delivery:

5.1.1 corresponds to the description given by RolaTube; and

5.1.2 is free from material defects in materials and workmanship.

5.2 Subject to clause 5.3, if:

5.2.1 the Buyer gives notice in writing to RolaTube of any defect promptly after its discovery and in any event not later than 12 months after delivery;

5.2.2 RolaTube is given a reasonable opportunity of examining the Product; and

5.2.3 the Buyer (if asked to do so by RolaTube) returns the Product to RolaTube’ place of business at the Buyer’s cost,

RolaTube shall, at its option, repair or replace the defective Product or any part thereof or refund the Price of such Product at the pro-rata Contract rate.

5.3 RolaTube warrants that the Design Services shall be provided:

5.3.1 with reasonable care and skill;

5.3.2 in accordance with agreed specifications; and

5.3.3 subject to clause 5.3.2, in accordance with good industry practice.

5.4 RolaTube shall not be liable for the Product’s failure to comply with the warranty set out in clause 5.1 if:

5.4.1 the Buyer makes any further use of the defective Product after giving notice of such defects;

5.4.2 the defect arises because the Buyer failed to follow RolaTube’ oral or written instructions as to storage, installation, commissioning, use of the Product, or if there are none, good trade practices; or

5.4.3 the Buyer alters or repairs the Product without the prior written consent of RolaTube.

5.5 Except as provided in this clause 5, RolaTube shall have no liability to the Buyer in respect of the Product’s failure to comply with the warranty set out in clause 5.1.

5.6 RolaTube’ sole liability for breach of clause 5.3 shall be to re-perform the defective Design Services.

6. DELIVERY OF THE PRODUCT

6.1 Delivery of the Product shall be Ex Works, RolaTube’ premises (Incoterms 2010). The Product may be delivered in advance of the Delivery Date upon the giving of reasonable notice to the Buyer. Any Delivery Date specified by RolaTube is intended to be an estimate and time for delivery shall not be made of the essence by notice. If no Delivery Date is specified, delivery will be within a reasonable time.

6.2 If for any reason the Buyer will not accept delivery of any Product when they are ready for delivery, or RolaTube is unable to deliver the Product on time because the Buyer has not provided appropriate instructions, documents, licences or authorisation:

6.2.1 risk in the Product will pass to the Buyer (including for loss or damage caused by RolaTube’ negligence);

6.2.2 the Product will be deemed to have been delivered; and

6.2.3 RolaTube may store the Product until delivery in which case the Buyer will be liable for all related costs and expenses (including without limitation, storage and insurance).

6.3 If RolaTube delivers to the Buyer a quantity of Product of up to 5% more or less than the quantity ordered by the Buyer, the Buyer shall not be entitled to object to or reject the Product or any of them by reason of the surplus or shortfall and shall pay for such Product at the pro-rata Contract rate.

6.4 RolaTube shall not be liable for any delay in delivery of the Product and/or completion of the performance of the Design Services that is caused by a Force Majeure Event (defined below) or by the failure of the Buyer to provide adequate delivery instructions or any other instructions that are relevant to the supply and delivery of the Product and/or performance of the Design Services.

6.5 Any liability of RolaTube for non-delivery of the Product shall be limited to replacing the Product within a reasonable time or issuing a credit note at the pro-rata Contract rate against any invoice raised for such Product.

7. TITLE AND RISK

7.1 The Product shall be at the risk of RolaTube until such time as delivery has been completed.

7.2 All Product shall remain the property of RolaTube until the full Price has been paid and all other sums which are or which become due to RolaTube from the Buyer on any account.

7.3 Until ownership of the Product has passed to the Buyer, the Buyer must:

7.3.1 store the Product (at no cost to RolaTube) separately from all other Product of the Buyer of any third party in such a way that they remain readily identifiable as RolaTube’ property;

7.3.2 not destroy, deface or obscure any identifying mark or packaging on or relating to the Product;

7.3.3 maintain the Product in a satisfactory condition insured for their full Price against all risks.

7.4 The Buyer may resell the Product before ownership has passed to it solely on the following conditions:

7.4.1 any sale shall be effected in the normal course of the Buyer’s business at full market value and the Buyer shall hold such part of the proceeds of sale as represent the amount owed by the Buyer to RolaTube on behalf of RolaTube and the Buyer shall account to RolaTube accordingly; and

7.4.2 any such sale shall be a sale of RolaTube’ property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.

7.5 The Buyer’s right to possession of the Product shall terminate immediately if:

7.5.1 being an individual, the Buyer is the subject of a bankruptcy petition or order.

7.5.2 being a body corporate:

7.5.2.1 a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestrian or other process is levied or enforced upon or sued out against, the whole or any part of the assets of the Buyer and such attachment or process is not discharged within seven days;

7.5.2.2 the Buyer suspends or threatens to suspend payment of its debts or is, or is deemed for the purposes of any applicable law to be, unable to pay its debts as they fall due or admits inability to pay its debts as they fall due or commences negotiations with all or any class of its creditors with a view to the general readjustment or rescheduling of any of its debts;

7.5.2.3 a petition is filed, a notice is given, a resolution is passed or an order made, for or in connection with the winding up of the Buyer;

7.5.2.4 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it; or

7.5.2.5 the Buyer ceases to trade.

7.6 RolaTube shall be entitled to recover payment for the Product notwithstanding that ownership of the Product has not passed from RolaTube.

7.7 The Buyer grants RolaTube, its agents and employees an irrevocable licence at any time to enter any premises where the Product are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.

8. CONFIDENTIALITY

8.1 Any information which RolaTube discloses relating to the Product, which is not in the public domain at the time of disclosure, shall be confidential and shall not be disclosed to any third party or used by the Buyer to enable the Buyer to manufacture the Product or use the same as a springboard to develop the Buyer’s own products.

9. INTELLECTUAL PROPERTY

9.1 As between RolaTube and the Buyer, the RolaTube Background IPR and Foreground IPR shall be owned by RolaTube.

9.2 RolaTube licenses the Foreground IPR to the Buyer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Buyer to make use of the Deliverables, Design Services and the Product. If RolaTube terminates the Contract under clause 10, this licence shall automatically terminate.

9.3 The Buyer grants RolaTube a non-exclusive, royalty-free licence to use the Buyer Background IPR (if any) for the purpose of manufacturing the Product or performing the Design Services in accordance with the Contract.

9.4 The Buyer warrants that any design or instructions furnished or given by him shall not and that RolaTube’ use of the Buyer Background IPR in accordance with the Contract shall not cause RolaTube to infringe the intellectual property rights of any third party.

10. TERMINATION

10.1 RolaTube may terminate the Contract without incurring any liability to the Buyer by giving notice to the Buyer at any time if:

10.1.1 the Buyer commits a material breach of any of the Conditions of the Contract; or

10.1.2 if any of the events referred to in clause 7.5 occurs in relation to the Buyer.

11. FORCE MAJEURE

11.1 Neither RolaTube nor the Buyer shall owe or incur any liability under or in connection with or be deemed to be in breach of any Contract between them governed by these Conditions by reason of any delays in, revisions to, or failures in performance of such Contract that result from circumstances beyond the reasonable control of either party, including but not limited to an Act of God, legislation, war, fire, drought, failure of power supply, lock-out, strike or other action taken by employees in furtherance of a trade dispute or owing to any inability to procure materials required for their performance of the Contract (Force Majeure Event).

11.2 The party affected by the circumstances referred to in clause 11.1 shall promptly notify the other party in writing:

11.2.1 when the occurrence of any circumstance referred to in clause 11.1 above causes or can reasonably be expected to cause or to threaten to cause a delay, revision or failure in performance; and

11.2.2 when any such circumstance ceases to do so.

10.3 If such circumstances continue for a continuous period of more than 28 days, either party may terminate the Contract governed by these Conditions by written notice to the other party.

12. LIMITATION OF LIABILITY

12.1 Subject to clause 5, the following provisions set out the entire financial liability of RolaTube (including any liability of the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of any breach of these Conditions and any representation, statement or tortious act or omission, including negligence arising under or in connection with the Contract.

12.2 All warranties, conditions and other terms implied by statute or common law (save for condition implied by section 12 of the Sale of Product Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

12.3 Nothing in these Conditions excludes or limits the liability of RolaTube for death or personal injury caused by RolaTube’ negligence or fraudulent representation.

12.4 Subject to Conditions 12.2 and 12.3:

12.4.1 RolaTube’ total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising out of or in connection with the performance or contemplated performance of this Contract shall be limited to the Price payable by the Buyer in respect of this Contract; and

12.4.2 RolaTube shall not be liable to the Buyer for:

12.4.2.1 any indirect or consequential loss or damage; or

12.4.2.2 for loss of profit, loss of business and depletion of goodwill.

13. AMENDMENTS

13.1 These Conditions including any special conditions agreed between RolaTube and the Buyer may only be amended by formal amendment in writing signed by duly authorised representatives of both.

14. WAIVER

14.1 No inaction, omission, failure or delay by RolaTube in exercising or securing the enforcement or validity of any right, power, privilege or demand arising under or in connection with any Contract with the Buyer and no single or partial exercise of any such right, power, privilege or demand shall impair the existence, operation, content, effect and enforcement of the said right, power, privilege or demand or operate as a waiver of it.

15. ENTIRE AGREEMENT

15.1 These Conditions and any additional terms and conditions agreed in writing between the parties constitute the whole agreement between the parties and supersede and replace any prior written or oral agreements, representations or understandings between them. The Buyer confirms that he has not entered into the Contract with RolaTube on the basis of any representation that is not expressly incorporated into these Conditions.

16. SEVERANCE

16.1 If any provision of these Conditions or of any special conditions agreed between the parties in writing is prohibited by law or is determined by any Court of law or other binding adjudicatory authority or conceded by the parties to be unlawful, void or unenforceable, the provision:

16.1.1 shall to the extent required and as far as possible be severed from these Conditions and rendered ineffective without modifying the remaining provisions; and

16.1.2 to not in any way effect any other particular provisions of these Conditions or the validity or enforcement of the contract which is subject to these Conditions generally.

17. ASSIGNMENT

17.1 Subject to clause 17.2 neither RolaTube nor the Buyer may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any of its rights and obligations without the prior written agreement of the other party.

17.2 Either RolaTube or the Buyer may however assign and transfer all rights and obligations under the Contract to any person to which it transfers all of its business provided that the assignee undertakes in writing to the other party to be bound by the obligations of the assignor under the terms of the Contract so assigned.

18. NOTICES

18.1 Any notice or 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, commercial courier, fax or e-mail.

18.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 18.1; if sent by first class post at 9.00 am on the second working day after posting; if delivered by commercial courier, on the date and time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one working day after transmission.

19. LAW AND JURISDICTION

19.1 The validity, construction and performance of the Contract and of all other rights and liabilities arising in connection therewith shall be governed by English law and shall be subject to the exclusive jurisdiction of the English Courts to which RolaTube and the Buyer submit.

20. THIRD PARTIES

20.1 For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provisions set out in these Conditions or any special conditions agreed between RolaTube and the Buyer, the Contract is not intended to and does not confer on any person who is not a party thereto:

20.1.1 any right to enforce any of its provisions; or

20.1.2 any right to avail itself of any defence expressed in these Conditions.