PAUA TRADING LIMITED STANDARD TERMS AND CONDITIONS OF SALE

1. INTERPRETATION

1.1 Definitions:

Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions means the terms and conditions set out in this document as amended from time to time.
Contract means the contract between the Seller and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer means the person or firm who purchases the Goods from the Seller.
Delivery Location has the meaning given in clause [4.2].
Force Majeure Event means an event, circumstance or cause beyond a party’s reasonable control.
Goods means the goods (or any part of them) set out in the Purchase Order.
Purchase Order means the Customer’s order for the Goods, as set out in the Customer’s purchase order form, or the Customer’s written acceptance of the Seller’s quotation, as the case may be.
Specification means any specification for the Goods including any related plans and drawings, that is agreed by the Customer and the Seller.
Seller: Paua Trading Limited (a private limited company registered in England and Wales with company number 10072991)

1.2 Interpretation

(a)  A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b)  A reference to a party includes its successors and permitted assigns.
(c)  A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d)  Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e)  A reference to writing or written includes fax and email.

2. BASIS OF CONTRACT

2.1. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2. The Purchase Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Purchase Order and any applicable Specification submitted by the Customer are complete and accurate.

2.3 The Purchase Order shall only be deemed to be accepted when the Seller issues a written acceptance of the Purchase Order, at which point the Contract shall come into existence.

2.4  The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

2.5  Any samples, drawings, descriptive matter or advertising produced by the Seller and any illustrations contained in the Seller’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.6  A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of twenty (20) Business Days from its date of issue.

3. GOODS

3.1 The Goods are as described in the applicable Specification.

3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier 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 reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.2 shall survive termination of the Contract.

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

4. DELIVERY

4.1 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.2 The Goods shall be delivered on an Ex Works basis and the Customer shall collect the Goods from the Seller’s premises (or such other location as may be specified in the Purchase Order) (Delivery Location) within ten (10) Business Days of the Seller notifying the Customer that the Goods are ready. For the avoidance of doubt the Customer shall be responsible for payment of freight and insurance from the Delivery Location.

4.3 The Seller may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

4.4 Delivery is completed on the completion of loading of the Goods onto the vehicle of the Customer or its carrier at the Delivery Location.

4.5 The Seller shall have no liability for any failure to make the Goods available for collection to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6 If the Customer fails to arrange collection of the Goods within five (5) Business Days of the Seller notifying the Customer that the Goods are ready for collection, then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with its obligations under the Contract in respect of the Goods:

(a)  delivery of the Goods shall be deemed to have been completed at 9:00 am on the third Business Day after the day on which the Seller notified the Customer that the Goods were ready; and
(b)  the Seller shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.7 If twenty (20) Business Days after the day on which the Seller notified the Customer that the Goods were ready for collection the Customer has not taken actual delivery of them, the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.

5. QUALITY

5.1 The Seller warrants that on delivery, and for a period of 12 months from the date of delivery (the warranty period), the Goods shall:
(a) conform in all material respects with the Specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by the Seller.

5.2 Subject to clause 5.3, if:
(a)  the Customer gives notice in writing to the Seller during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1
(b)  the Seller is given a reasonable opportunity of examining such Goods; and
(c)  the Customer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Customer’s cost, the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3 The Seller shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 if:

(a)  the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b)  the defect arises because the Customer 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;
(c)  the defect arises as a result of the Seller following any drawing, design or Specification supplied by the Customer;
(d)  to the extent the Customer alters or repairs such Goods;
(e)  the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f)  the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.4 Except as provided in this clause 5, the Seller shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.

5.5  The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

5.6  These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.

6. TITLE AND RISK

6.1  The risk in the Goods shall pass to the Customer on completion of delivery.

6.2  Title to the Goods shall not pass to the Customer until the earlier of the date on which:

(a)  the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b)  the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a)  not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(b)  maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(c)  notify the Seller immediately if it becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and
(d)  give the Seller such information as the Seller may reasonably require from time to time relating to the Goods.

6.4  Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Customer resells the Goods before that time:

(a)  it does so as principal and not as the Seller’s agent; and
(b)  title to the Goods shall pass from the Seller to the Customer immediately before the time at which resale by the Customer occurs.

6.5  At any time before title to the Goods passes to the Customer, the Seller may:

(a)  by notice in writing, terminate the Customer’s right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and
(b)  require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7. PRICE AND PAYMENT

7.1 The price of the Goods shall be the price set out in the Purchase Order, or, if no price is quoted, the price set out in the Seller’s published price list in force as at the date of delivery.

7.2 The Seller may, by giving notice to the Customer at any time up to three (3) Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

(a) 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);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Seller adequate or accurate information or instructions.

7.3 The price of the Goods:

(a)  excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Seller at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b)  excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

7.4 The Seller may invoice the Customer for the Goods on or at any time after the completion of delivery.

7.5 The Customer shall pay each invoice submitted by the Seller:

(a)  within thirty (30) days of the date of the invoice; and
(b)  in full and in cleared funds to a bank account nominated in writing by the Seller, and
(c)  time for payment shall be of the essence of the Contract.

7.6 If the Customer fails to make a payment due to the Seller under the Contract by the due date, then, without limiting the Seller’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

7.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. LIMITATION OF LIABILITY

8.1 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise. The Customer is responsible for making its own arrangements for the insurance of any excess loss.

8.2 Nothing in in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987.

8.3 Subject to clause 8.2, the Seller’s total liability to the Customer shall not exceed a sum equal to the price of the Goods purchased pursuant to the relevant Purchase Order to which the liability relates.

8.4 Subject to clause 8.2, the following types of loss are wholly excluded:

(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.

8.5 This clause 8 shall survive termination of the Contract.

9. TERMINATION

9.1 Without limiting its other rights or remedies, the Seller may terminate this Contract with immediate effect by giving written notice to the Customer if:

(a)  the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within five (5) days of that party being notified in writing to do so;
(b)  the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c)  the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d)  the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to perform the terms of the Contract is in jeopardy.

9.2  Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Customer and the Seller if the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d), or the Seller reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

9.3  Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

9.4  On termination of the Contract for any reason the Customer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Customer immediately on receipt.

9.5  Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

9.6  Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

10. FORCE MAJEURE

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for two months, the party not affected may terminate the Contract by giving fourteen (14) days’ written notice to the affected party.

11. GENERAL

11.1  Assignment and other dealings.

(a)  The Seller may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(b)  The Customer may not assign, 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 Seller.

11.2 Confidentiality.

(a) Each party undertakes that it shall not at any time during the term of the Contract or otherwise disclose
to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

11.3 Intellectual Property
(a) Any intellectual property which is owned, controlled or developed by the Supplier and incorporated into the Goods shall at all times continue to be owned and/or controlled by the Supplier
(b) Each of the Supplier and the Customer hereby grants to the other a limited, non-exclusive, revocable, non-transferable license to display its name, trademarks or logos on its Internet website, presentations, public events, films and press releases, strictly for the purposes of promoting the development and/or sale of the Goods.

11.4 Entire agreement
(a)  The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b)  Each party agrees that it shall have no remedies in respect of 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.

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

11.6 Data Protection The parties shall each and at all times comply with all applicable laws concerning the retention, protection and use of personal data.

11.7 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

11.8 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 11.8 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

11.9 Notices
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i)  delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii)  sent by email to the address specified in the Purchase Order.

(b) Any notice or communication shall be deemed to have been received
(i)  if delivered by hand, at the time the notice is left at the proper address;
(ii)  if sent by pre-paid first-class post or other next working day delivery service, at 9:00 am on the two Business Day after posting; and
(iii)  if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.9(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

11.10 Third party rights.
(a)  Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b)  The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

11.11 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.

11.12 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.