Profins

1

Interpretation and Headings

1.1

In these Conditions:

1.1.1

"Buyer Material" means any goods, materials or supplies to be provided by, or on behalf of, the Buyer to Profins for the purposes either of being used in the creation of the Goods or for the Services to be applied to them, such Buyer Material (if any) being identified in a Quotation or the Order;

1.1.2

"Confidential Information" means all data and/or information concerning the business or affairs of Profins, its trade secrets, proprietary information and know-how (in whatever form) which Profins discloses to the Buyer;

1.1.3

"Contract" means the contract for the sale and purchase of the Goods and the supply and acquisition of the Services;

1.1.4

"Delivery Address" means the address stated on the Order or Quotation;

1.1.5

"Delivery Date" means the date stated on the Order or Quotation;

1.1.6

"Goods" means the goods (including any instalment of the goods or any parts of them) which Profins is to supply in accordance with these Conditions;

1.1.7

"Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce (2000 edition);

1.1.8

"Order" means the Buyer’s purchase order;

1.1.9

"Order Acceptance" means a Written acceptance by Profins of (i) an Order or (ii) the Buyer's acceptance of a Quotation;

1.1.10

"Price" means the aggregate price of the Goods and/or the charge for the Services in terms of the Contract and, where the context permits, the price for any instalment of the Goods or the Services;

1.1.11

"Quotation" means Profin’s quotation for the Goods and Services. Where there is any inconsistency between the Quotation and the Order, the terms of the Quotation will prevail unless the terms of the Order have been accepted in Writing by Profins;

1.1.12

"Services" means the services (if any) described in the Quotation or Order;

1.1.13

"Specification" includes any plans, drawings, data or other information relating to the Goods or Services which the Contract requires the Goods or Services to conform to;

1.1.14

"Warranties" means the warranties contained in Clause 10;

1.1.15

"Writing" and any similar expression, includes facsimile transmission and comparable means of communication but not electronic mail.

1.2

In these Conditions the singular includes the plural and vice versa and a reference to one gender includes all others. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.

2

Basis of Sale

2.1

Profins shall sell and the Buyer shall purchase the Goods in accordance with the terms of the Contract which will be concluded by the issue of an Order Acceptance by Profins to the Buyer following either the issue by Profins of a Written Quotation which is accepted by the Buyer or the receipt by Profins of an Order in Writing from the Buyer. For the avoidance of doubt, these Conditions shall apply to the Contract to the exclusion of any other terms referred to by the Buyer in their Order or in any correspondence or in any acceptance or purported acceptance of the Quotation. Any variation of the Contract must be agreed in Writing between Profins and the Buyer and performance of the Contract by Profins will not constitute acceptance of any variation of these Conditions.

2.2

Profins’ employees or agents are not authorised to make any representations concerning the Goods unless confirmed by Profins in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed. Any advice or recommendation given by Profins or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by Profins is followed or acted upon entirely at the Buyer’s own risk.

2.3

Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, Order Acceptance, invoice or other document or information issued by Profins shall be subject to correction without any liability on the part of Profins.

3

Orders

3.1

No Order submitted by the Buyer shall be deemed to be accepted by Profins unless and until Profins has issued an Order Acceptance. The Buyer shall be responsible to Profins for ensuring the accuracy and adequacy of the terms of any Order or Quotation (including any applicable Specification), and for giving Profins any information relating to the Goods and Services reasonably required by Profins within a sufficient time to enable Profins to perform the Contract in accordance with its terms.

3.2

Once an Order Acceptance has been issued by Profins, no Order which has been accepted by Profins or Quotation which has been accepted by the Buyer, may be cancelled by the Buyer except with the agreement in Writing of Profins and the Buyer shall indemnify Profins 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 Profins as a result of cancellation.

4

Specification and Buyer Material

4.1

The quantity, quality and description of the Goods and any Specification for them shall be as set out in Profins’ Quotation (if accepted by the Buyer) or the Buyer’s Order (if accepted in Writing by Profins). Profins reserves the right to make any changes in the Specification which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied other than to the Buyer's Specification, which do not materially affect their quality or performance.4.2 Where the Contract provides that the Buyer will provide Buyer Material, the following provisions will apply:

4.2.1

the Buyer will provide the Buyer Material to Profins on the date(s) and in the quantity and manner required by the Contract or, in the absence of such requirements, on the date(s) and in the quantity and manner notified to the Buyer by Profins. The Buyer warrants to Profins that any Buyer Material provided to Profins will be the property of the Buyer and shall not be the subject of any third party rights or encumbrances;

4.2.2

the Buyer will ensure that the Buyer Material conforms to any requirements as to quality which are required by the Contract or notified to the Buyer by Profins in Writing;

4.2.3

Profins shall be entitled to a lien over the Buyer Material and to retain the same pending payment of any sum or sums due to it by the Buyer from time to time, whether under the Contract or otherwise; and

4.2.4

where any of the Buyer Material is combined with, incorporated in or fitted to, any goods belonging to Profins for the purposes of supplying the Goods, the property in such Buyer Material will vest in Profins when they are combined, incorporated or fitted, pending transfer of property in the Goods in terms of Clause 9.1.

5

Price of Goods

5.1

The Price shall be as stated in Profins’ Quotation or in the Order Acceptance (as applicable). Where a Quotation has been issued by Profins, unless the Quotation states otherwise, the Price quoted is valid for 30 days only and is given subject to available materials and capacity.

5.2

The Price, unless otherwise so stated, shall be: inclusive of all charges for packaging, transport, shipping, carriage, insurance and delivery of Goods to the Delivery Address; and exclusive of any cost which may be charged by third party inspection authorities, any applicable value added tax, other duties, imposts or levies and any import duties where the Goods are supplied for export from the United Kingdom, which the Buyer shall be additionally liable to pay to Profins, if applicable. Where Profins agrees to deliver the Goods otherwise than at the Delivery Address, the Buyer shall be liable to pay Profins’ charges for packaging, transport, shipping, carriage and insurance

5.3

Profins reserves the right, by giving notice in Writing to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to Profins which is due to any factor beyond the control of Profins, including any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials, freight, shipment or other costs of manufacture or carriage, any change in delivery dates, quantities or Specification which are requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give Profins adequate information or instructions. For the avoidance of doubt the cost of warehousing, storage or any other expense reasonably incurred by Profins as a result of any delay outside the control of Profins will be charged to the Buyer in addition to the Price.

6

Terms of Payment

6.1

Profins may invoice the Buyer for the Price at the times agreed in the Contract or, in the absence of such agreement, on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event Profins shall be entitled to invoice the Buyer for the Price at any time after Profins has notified the Buyer that the Goods are ready for collection or (as the case may be) Profins has tendered delivery of the Goods. Where the Goods are to be delivered, or the Services are to be performed by instalments, and the Contract specifies unit prices for each particular instalment then Profins may invoice the Buyer in the amount of the appropriate unit price for each instalment on or at any time after it has been delivered or performed as appropriate.

6.2

The Buyer shall pay the Price within 30 days of the date of Profins’ invoice, and Profins shall be entitled to recover the Price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the Price shall be of the essence of the Contract. In the event that the Buyer fails to pay the Price of the Goods on their due date for payment Profins shall be entitled to charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 3 per cent per annum above base rate from time to time of The Royal Bank of Scotland plc, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest) and to recover any reasonable costs and expenses it may have incurred in endeavouring to collect payment.

7

Delivery

7.1

Where the Contract provides that Profins will deliver the Goods, they will be delivered to the Delivery Address on the Delivery Date during the Buyer’s usual business hours or delivery is ex works, by the Buyer collecting the Goods at Profins’ premises during Profins’ usual business hours at any time after Profins has notified the Buyer that the Goods are ready for collection. Unless otherwise provided in the Contract, any Services shall be performed at such time and at such places as may be required in order to enable the Goods to be delivered timeously in accordance with this Clause 7.

7.2

The Delivery Date is approximate only and Profins’ shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence of the Contract. The Goods may be delivered by Profins in advance of the Delivery Date on giving reasonable notice to the Buyer.

7.3

Delivery may be made in whole or by instalments. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Profins to deliver any one or more of the instalments in accordance with these Conditions shall not entitle the Buyer to repudiate the Contract with regard to those remaining instalments.

7.4

Profins will use all reasonable efforts to ensure that the Goods are packaged for transport to a reasonable standard required for normal handling to the Delivery Address. The Goods should not be returned to Profins without the prior agreement in Writing of Profins.

7.5

If Profins fails to deliver the Goods (or any instalment) as required by the Contract in circumstances where it is at fault, the Buyer will give Profins a reasonable opportunity to remediate the failure, failing which Profins’ liability shall be limited to reimbursing to the Buyer any additional costs it incurs in acquiring similar goods (at the best price available in the market) to replace those not delivered. For the purposes of this provision, additional costs are direct costs the Buyer has incurred which it would not have had to pay had it acquired the Goods under the Contract. If the Buyer fails to take delivery of the Goods or fails to give Profins adequate delivery instructions at the time stated for delivery then, without limiting any other right or remedy available to Profins, Profins may store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage, or sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

8

Export Terms and Export Restriction

8.1

Where the Goods are supplied for export from the United Kingdom, the provisions of Clauses 8.2 to 8.5 shall (subject to any special terms agreed in Writing between the Buyer and Profins) apply notwithstanding any other provision of these Conditions.

8.2

The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.

8.3

The Goods shall be delivered ex works and the Buyer must obtain at its own risk and expense any export licence or other official authorisation and carry out, where applicable, all customs formalities necessary for the export of the Goods.

8.4

The Buyer shall be responsible for arranging for testing and inspection of the Goods at Profins’ premises before shipment. Profins shall have no liability for any claim in respect of any defect in the Goods which should have been reasonably apparent on inspection before shipment (whether such goods were/were not inspected) and which is discovered after shipment, or in respect of any damage during transit.

8.5

Payment of all amounts due to Profins shall be made by irrevocable letter of credit opened by the Buyer in favour of Profins and confirmed by a bank in England acceptable to Profins or, if Profins has agreed in Writing on or before acceptance of the Buyer’s order to waive this requirement, by acceptance by the Buyer and delivery to Profins of a bill of exchange drawn on the Buyer payable 60 days after sight to the order of Profins at such branch of a clearing bank in England as may be specified in the bill of exchange.

8.6

The Buyer shall not offer the Goods for resale in any country which is the subject of an applicable UK government sanction regime, embargo or export restriction nor will the Buyer sell the Goods to any person if the Buyer knows or has reason to believe that that person intends to resell the Goods in any such country.

9

Risk and Property

9.1

Risk of damage to or loss of the Goods shall pass to the Buyer: in the case of Goods to be delivered at the Delivery Address on the Delivery Date or, if the Buyer wrongfully fails to take delivery of the Goods, the time when Profins has tendered delivery of the Goods; or in the case of Goods to be delivered ex works, at the time when Profins notifies the Buyer that the Goods are available for collection. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until Profins has received in cash or cleared funds, payment in full of the Price and all other goods agreed to be sold by Profins to the Buyer for which payment is then due.

9.2

Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as Profins’ fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Profins’ property, but the Buyer may use the Goods in the ordinary course of its business. Until such time as the property in the Goods passes to the Buyer, Profins may at any time require the Buyer to deliver up the Goods to Profins and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. In the event that the Buyer sells or otherwise disposes of the Goods before such time as the property in Goods passes to the Buyer, Profins shall be entitled to the proceeds of such sale or disposal. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Profins, but if the Buyer does so all moneys owing by the Buyer to Profins under the Contract shall (without limiting any other right or remedy of Profins) forthwith become due and payable.

10

Warranties and Liability

10.1

Subject to the following provisions Profins warrants that the Goods will correspond with any Specification in all material respects and will be free from defects in material and workmanship and the Services will be provided with reasonable care and skill.

10.2

Profins shall be under no liability under the Warranties in respect of any defect in the Goods which has arisen as a result of

10.2.1

any requirement of the Buyer including any Specification supplied by the Buyer, fair wear and tear, negligence, abnormal working conditions, failure to follow Profins’ instructions in relation to installation or use of the Goods or otherwise, or alteration or repair of the Goods without Profins’ approval;

10.2.2

the unsuitability of, or any defects in, any Buyer Material supplied to Profins and used in the Goods or in respect of which Profins is to supply the Services (as the case may be);

10.2.3

the unsuitability of, defect in, or defect in the treatment or manufacturing process for, any raw materials provided by a third party to Profins and which is incorporated in the Goods, but in such circumstances Profins will use its reasonable endeavours to assign the Buyer the benefit of any warranties or rights of recourse that Profins may have against such third party in respect of such defects; or

10.2.4

the unsuitability of, or any defects in, any goods or materials purchased from a third party by Profins and then supplied to the Buyer under the Contract, provided that Profins has used reasonable endeavours to assign to the Buyer the benefit of any warranties or rights of recourse that Profins may have against such third party in respect of such defects.

10.3

Profins shall have no liability under the Warranties if the total Price has not been paid by the due date(s) for payment under the Contract.

10.4

Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law, whether as to fitness for purpose, satisfactory quality or otherwise, are excluded to the fullest extent permitted by law.

10.5

Subject to Clause 8.4, a claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with any Specification shall (whether or not delivery is refused by the Buyer) be notified to Profins within 7 days from the Delivery Date or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify Profins accordingly, the Buyer shall not be entitled to reject the Goods and Profins shall have no liability for such defect or failure, and the Buyer shall be bound to pay the Price as if the Goods had been delivered in accordance with the Contract.

10.6

To the extent permitted by law, Profins shall not be liable to the Buyer for any representation (unless fraudulent), under contract (including the express provisions of the Contract), in delict or otherwise, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever which arise out of or in connection with the supply of the Goods and the Services (including any delay in supplying or any failure to supply the Goods and/or the Services in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of Profins under or in connection with the Contract shall not exceed the Price.

11

Termination

11.1

Profins may at any time by notice in Writing to the Buyer, terminate the Contract with immediate effect or suspend any further deliveries to the Buyer in the event that:-

11.1.1

the Buyer ceases to conduct its business or Profins has reasonable grounds for believing that the Buyer has ceased or intends to cease to conduct its business; or

11.1.2

there is a material change in the management, ownership or control of the Buyer’s business unless such change of control has been previously approved in Writing by Profins; or

11.1.3

the Buyer sells or otherwise disposes of all or a substantial part of its assets unless the sale or disposal concerned has been approved in Writing by Profins; or

11.1.4

the Buyer fails to make any payment of the Price on the due date. In addition, in such event, Profins may appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and Profins) as Profins may think fit (notwithstanding any purported appropriation by the Buyer); or

11.1.5

the Buyer materially breaches its obligations under this Contract. Where the material breach is capable of being remedied the Contract may only be terminated where the Buyer has failed to remedy the breach within 7 days after being asked in Writing to do so by Profins. Notwithstanding the above, Profins may terminate this Contract immediately in the case of a material breach capable of remedy where the breach is persistent. A breach of this Contract will be persistent where the Buyer has been in material breach of the same provision of this Contract more than once (whether or not the previous beach was timeously remediated); or

11.1.6

the Buyer is the subject of a voluntary arrangement or a moratorium, makes a proposal for any other composition, scheme or arrangement with or for the benefit of its creditors, is unable to pay its debts, is the subject of a petition for winding up, has a receiver or administrator appointed or suffers a distress or execution to be levied on any property used in connection with its business or any events analogous thereto occur under the laws of any other jurisdiction to which the Buyer is subject.

11.2

Any termination of the Contract pursuant to this Clause 11 shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party.

12

Intellectual Property and Confidential Information

12.1

Except as expressly provided in the Contract, the Buyer does not have any rights in respect of any of Profins’ intellectual property rights or in any associated goodwill.

12.2

Where the Buyer supplies Buyer Material, or provides any Specification, the Buyer confirms that their use by Profins for the purposes of the Contract, will not cause Profins to infringe any third party intellectual property rights and the Buyer undertakes that it will indemnify Profins upon demand against all losses, actions, claims, proceedings, judgements, damages, compensation, obligations, injuries, expenses and costs (including the cost of defending any legal proceedings) incurred by Profins as a result of such infringement or alleged infringement.

12.3

Where Profins discloses to the Buyer any Confidential Information the Buyer will ensure that such Confidential Information shall be kept confidential and the Buyer will not use or disclose the same other than for the purposes of the Contract without the prior written consent of Profins. Upon demand by Profins, the Buyer shall return to Profins or, if requested to do so by Profins, destroy or permanently delete from any electronic media or storage, all of the Confidential Information and any copies of it made by the Buyer.

12.4

The provisions of this Clause 12 shall apply during the continuance of the Contract and after its expiry or termination howsoever arising.

13

General

13.1

If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract and the remainder of the provision in question shall not be effected.

13.2

Any notice under these Conditions shall be in Writing.

13.3

The Contract is personal to the Buyer and the Buyer shall not assign, transfer or sub-contract any of its rights or obligations under it without the prior consent of Profins in Writing.

13.4

Profins shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of Profins’ obligations in relation to the Goods, if the delay or failure was due to any cause beyond Profins’ reasonable control including, but without limitation, strikes, difficulty in obtaining raw materials, labour, fuel, parts or machinery, and power failure or breakdown of machinery.

13.5

The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.