For purchases from Element Six Technologies US Corp the following terms apply:

 

1. Definitions

Conditions: the terms and conditions of sale as set out in this document, and as amended from time to time in accordance with clause 11.5.
Contract: the contract between the Buyer and Seller for the sale and purchase of Goods in accordance with these Conditions. Goods: the goods (or any part of them) as set out in the Purchase Order.
Purchase Order: the Buyer’s order for the Goods as set out in the Buyer’s purchase order form, or the Buyer’s written acceptance of the Seller’s quotation.
Order Confirmation: the Seller’s written confirmation to supply the Buyer’s order of the Goods.

 

2. Scope

In these Conditions, the “Seller” means the Element Six subsidiary, as further set out in the Order Confirmation. The Seller is a member of the Element Six group of companies (the “Group”) and the Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of the Group. The “Buyer” means the person or entity who purchases the Goods from the Seller. The following terms apply to all sales of Goods (including future sales), subject to written amendment by the Seller. These Conditions are accepted by the Buyer when placing an order with the Seller. Any terms and conditions contained in the documentati on of the Buyer, including but not limited to the Purchase Order, shall not be binding on the Seller. Any further terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing are excluded. This applies despite knowledge by the Seller of existing contradictory terms and conditions.

 

3. Basis of the Sale

3.1. The Purchase Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions.

 

3.2. The Purchase Order shall only be deemed to be accepted when the Seller issues the Order Confirmation, which is subject to these Conditions, at which point the “Contract” shall come into existence.

 

3.3. A quotation for the Goods given by the Seller shall not constitute an offer. Unless otherwise stated in the quotation given, a quotation shall only be valid for a period of 60 days from its date of issue.

 

3.4. The Seller’s employees or agents are not authorised to make any representations concerning the Goods, unless confirmed by the Seller in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.

 

3.5. Any advice or recommendation given by the Seller or its employees or agents to the Buyer including any advice as to the storage, application or use of the Goods, which is not confirmed in writing by the Seller, is followed or acted upon entirely at the Buyer’s own risk, and accordingly, the Seller shall not be liable for any such advice or recommendation which is not so confirmed.

 

3.6. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

 

4. Orders and specifications

4.1. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order, including any applicable specification, submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with the Conditions.

 

4.2. The Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party's intellectual property rights (or any claim for infringement of any patent, copyright, design or trade mark) arising out of or in connecti on with the Seller's use of the specification as supplied by the Buyer. This clause 4.2 shall survive termination of these Conditions.

 

4.3. The Seller reserves the right to amend the specification if required by any applicable statutory or regulatory requirement, and the Seller shall notify the Buyer in any such event.

 

4.4. No order which has been accepted by the Seller may be cancelled by the Buyer except with the written agreement of the Seller.

 

5. Price of the Goods

5.1. The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s standard price list current at the date of acceptance of the order. This price shall be quoted on the Order Confirmation accepting the Buyer’s order.

 

5.2. Except as otherwise stated under the terms of any quotation and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an Ex-Works basis (Incoterms 2020).

 

5.3. The price is exclusive of any applicable value added tax, which the Buyer may be additionally liable to pay to the Seller, as well as any freight, packaging, transport or insurance costs incurred on delivery, which shall be invoiced to the Buyer. Customs duties, clearance charges or equivalent duties shall be for the account of the Buyer.

 

5.4. The Seller may by giving written notice to the Buyer, increase the price of the Goods to reflect the increased in the cost of the Goods, that is due to:

 

5.4.1. any factor beyond the Seller's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

 

5.4.2. any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the specification of the Goods; or

 

5.4.3. any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.

 

5.5. The Buyer may cancel its order within two working days of being informed of an increase in the price of the Goods from the price that was indicated on the Order Confirmation. If the Buyer does not exercise this right of cancellation within two working days, the Buyer shall be bound by the new price.

 

6. Terms of Payment

6.1. The Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Buyer wrongfully refuses to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer at any time after the Seller has tendered delivery of the Goods.

 

6.2. The Buyer shall pay the price of the Goods purchased in full within 30-days of the date of the Seller’s invoice, notwithstanding that delivery may not have taken place and the title in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.

 

6.3. Payment shall be made in United States Dollars or such currency as may be agreed from time to time by the Parties.

 

6.4. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:

 

6.4.1. cancel the Contract or suspend any further deliveries to the Buyer;

 

6.4.2. appropriate any payment made by the Buyer to such of the Goods as the Seller may think fit; and

 

6.4.3. charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 2 percent per annum above the US Prime Interest Rate as listed on the previous day in the Wall Street Journal, until payment in full is made.

 

6.5. Notwithstanding any other term or condition herein and in particular notwithstanding any terms of credit extended to the Buyer under any other separate agreement, where the balance on the Buyer’s account with the Seller (being the value of invoices charged to the Buyer for which the Seller has not received payment) equals or exceeds the Buyer’s agreed credit limit, the Seller may, in its sole discretion, refuse to accept further orders from the Buyer or refuse to make further shipments or sales to the Buyer.

 

6.6. Further, the Seller may, in its sole discretion, refuse to accept orders from the Buyer or make sales to the Buyer where the value of the Goods ordered by the Buyer, would, if invoiced to the Buyer’s account, cause the balance on the said account to equal or exceed any agreed credit limit. Any decision made by the Seller in the exercise of its sole discretion as provided for in this sub-clause shall not, and shall not be deemed to, prejudice, limit, hamper or affect any subsequent exercise by the Seller of its sole discretion.

 

7. Delivery

7.1. Delivery of the Goods shall be made by the Seller delivering the Goods to a carrier at location of dispatch, by the posting of the Goods from location of dispatch or by the delivery of the Goods to the Buyer at the Seller’s place of business, being the location of dispatch, unless otherwise agreed in writing between the Buyer and the Seller.

 

7.2. Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing.

 

7.3. The Seller shall not be liable for any delay in delivery of the Goods that is caused by the Buyer's failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

 

7.4. Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Seller to del iver any one or more of the installments in accordance with these Conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

 

7.5. Any claim for shortage in delivery must be notified to the Seller in writing within 3 days of the date of receipt of the Goods by the Buyer.

 

8. Risk and Property

8.1. Risk of damage to or loss of the Goods shall pass to the Buyer:

 

8.1.1. in the case of Goods to be delivered to the Buyer at the Seller’s place of business or delivered to a carrier at the Seller’s place of business, at the time when the Seller notifies the Buyer that the Goods are available for collection or that the Goods have been dispatched with a carrier; or

 

8.1.2. in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.

 

8.2. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the title in the Goods shall not pass to the Buyer until the Seller has received payment in full (in cash or cleared funds) for the Goods and any other goods agreed to be sold by the Seller to the Buyer for which payment is then due.

 

8.3. Until such time as the title in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall:

 

8.3.1. keep the Goods separate from the goods of the Buyer and third parties so that they remain readily identifiable as the Seller’s property, and shall keep the Seller’s Goods properly stored, protected and insured against all risks for their full price from the date of delivery, but shall be entitled to use the Goods in the ordinary course of business; and

 

8.3.2. not remove, deface or obscure any identifying marks or packaging on or related to the Goods.

 

8.4. The Buyer hereby irrevocably authorises the Seller or its representatives to enter upon the Buyer’s premises where the Goods are stored, or are thought to be stored, for the purpose of repossessing them and, if the Seller so chooses, subsequently reselling them.

 

9. Warranties and Liability

9.1. The Seller warrants that on delivery, the Goods shall conform in all material respects with their description and any specification agreed to in writing; be free from material defects in material and workmanship; and be of satisfactory quality.

 

9.2. Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

 

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

 

9.4. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet the Buyer’s specification which is notified to the Buyer in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge for the replacing items or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.

 

9.5. The Seller shall not be liable for the Goods' failure to comply with the warranty set out in clause 9.1 if:

 

9.5.1. the Buyer makes any further use of such Goods after giving notice in accordance with clause 9.3;

 

9.5.2. the defect arises because the Buyer failed to follow the Seller's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

 

9.5.3. the defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer; or

 

9.5.4. the Buyer alters or repairs such Goods without the written consent of the Seller.

 

9.6. Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.

 

9.7. Subject to clause 9.6, the Seller’s total liability to the Buyer shall not exceed the value of the Contract.

 

9.8. Neither party shall be liable or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the obligations in relation to the Goods, if the delay or failure was due to any cause beyond their reasonable control, including, but not limited to any Act of God, explosion, fire, acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental or local authority, war, civil commotion, insurrection, international sanctions or boycotts, import or export regulations or embargoes, difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery, labour disputes of whatever nature whether involving employees of the Seller or Buyer or of any third party.

 

9.9. This clause 9 shall survive termination of these Conditions.

 

10. Cancellation

10.1. If the Buyer makes any voluntary arrangement with its creditors, becomes subject to an administration, or goes into liquidation, or if an encumbrancer takes possession of assets or a receiver is appointed; or if the Buyer ceases to, or threatens to cease to, carry on business; or the Seller takes the reasonable view that any of the events mentioned above is likely to occur and notifies the Buyer accordingly, then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract without any liability to the Buyer, and if Goods have been delivered but not paid for, they shall become due and payable immediately.

 

10.2. Further, if the Buyer commits a material breach of any term of the Contract and if such a breach is remediable, fails to remedy such breach within 14 days of being notified in writing to do so, then the Seller shall be entitled to cancel the Contract without any liability to the Buyer, and if Goods have been delivered but not paid for, they shall become due and payable immediately.

 

11. General

11.1. The subject matter of the Contract between the Parties shall be treated as confidential by the Buyer and shall not be disclosed or used other than by the Buyer in performing under this Contract.

 

11.2. 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 thereon.

 

11.3. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

 

11.4. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

 

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

 

11.6. This Contract constitutes the entire agreement between the Seller and Buyer.

 

11.7. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

 

11.8. The Seller and Buyer may not transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the other party. The Seller may assign any or all its rights or obligations under the Contract to any of its affiliates without the prior consent of the Buyer.

 

11.9. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

 

11.10. Any dispute arising out of, under or in connection with these Conditions or the sale of the Goods shall be governed in all respects by and construed and enforced in accordance with the laws of the state of New York, without regard to its conflicts of law principles. Exclusive jurisdiction over any cause of action arising out of these Conditions shall be in the courts of the state of New York. The Contract and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the state of New York.

 

11.11. Any sale of Goods by Buyer to Seller shall at all times be subject to all applicable export control laws and regulations of the United States, including, but not limited to, U.S. Export Administration Regulations. The Buyer agrees and assures the Seller that no items, equipment, materials, services, technical data, technology, software or other technical information or assistance furnished by the Seller, or any good or product resulting from these, shall be exported or re-exported by the Buyer or its authorized transferees, if any, directly or indirectly, unless in accordance with applicable U.S. export laws and regulations. This obligation shall survive any expiration, termination or discharge of any other contractual obligations of the Buyer.