CONDITIONS OF SALE FOR MULTIVAC UK LTD

1. DEFINITIONS
1.1 In these conditions of sale.
(a) “business day” a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
(b) “conditions” means these Conditions of Sale.
(c) “contract” means the contract between you and us for the sale of the goods or the provision of services or any combination of the two.
(d) “consumables” means goods which are used by the equipment to manufacture packaging which are not spare parts.
(e) “equipment” means goods which are items of machinery or equipment including the tooling (if applicable).
(f) “goods” means the equipment, spare parts, consumables and all other items supplied under the contract.
(g) “goods specification” means the technical specification referred to in clause 6.2 in the case of the equipment, and any specification made available by us in the case of spare parts or consumables.
(h) “manufacturer” means Multivac Sepp Haggenmueller GmbH & Co KG or the manufacturer of any ancillary goods which may be required to complete the contract.
(i) “order” means your purchase order form, your written acceptance of our quotation, or overleaf, as the case may be.
(j) “packaging” means the packaging produced by the equipment.
(k) “services” means the services set out in our quotation or order form which we are to provide under the contract.
(l) “spare parts” means a component part of the equipment used for the repair or replacement of failed parts.
(m) “tooling” the plastic injection moulding tool which is a component part of the equipment for the production of packaging.
(n) “us” “we” “our” means Multivac UK Ltd (which shall include our employees and sub-contractors).
(o) “you” “your” means the person who accepts our quotation or whose order is accepted by us.
(p) “intellectual property” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
(q) “warranty start date” means in the case of the spare parts, the date of delivery and in the case of equipment, the earlier of the date on which you confirm acceptance of the equipment in writing or your first use of the equipment in the normal course of your business.

2. THE AGREEMENT
2.1 All contracts made by us shall be deemed to incorporate these conditions.
2.2 These conditions shall override and take the place of any other terms and conditions in any document or other communication used by you in concluding the contract with us.
2.3 The order shall be deemed to be accepted on the earlier of: the date five business days after it is received by us provided that we do not reject it in writing before that date; or any act by us consistent with fulfilling the Order. No quotation shall constitute an offer.
2.4 You may not cancel or withdraw an order without our written permission. Cancellation of a contract by you without our written permission will entitle us to repudiate the contract and retain any monies paid in advance.
2.5 You may not assign the contract without our prior written approval.
2.6 We shall sell and you shall purchase the goods and services in accordance with our quotation accepted by you or your order accepted by us.
2.7 The headings used in these conditions are for convenience only and shall not affect their interpretation.

3. PRICE
3.1 Unless otherwise expressly stated in writing by us orders are accepted subject to availability of the goods from the manufacturer and on the basis that the price stated is subject to variation to take account of changes in manufacturer’s prices and where relevant rates of exchange, freight and insurance rates and import or export duties or tariffs between the date of order and date of delivery. We will give you written notice of any increase in price.
3.2 No deduction or delay in payment is permitted in respect of set-offs or counter-claims unless previously agreed by us in writing.
3.3 Unless otherwise stated, the price is exclusive of delivery costs, transportation, insurance, customs duties, VAT or any other sales tax and any other charges or taxes following delivery.

4. PAYMENT
4.1 Unless otherwise agreed in writing payment for all equipment shall be due:
(a) as to 30% of the total price plus V.A.T. at the time of order.
(b) as to 60% of the total price plus V.A.T. prior to delivery or on notification of readiness for delivery, whichever is the earliest.
(c) as to the balance of 10% of the total price plus V.A.T. on satisfactory commissioning of the equipment.
(d) Should the customer delay delivery or installation of equipment 60 days from the end of month of expected delivery, then the full amount due becomes immediately payable.
4.2 Unless otherwise agreed in writing payment for goods which are not equipment and all services and supplies shall be due 30 days from invoice date.
4.3 Time for payment shall be of the essence and if any sum owed by you to us is overdue:
(a) interest and compensation shall be charged as provided for under the Late Payment of Commercial Debts (Interest) Act.
(b) we shall be entitled to suspend delivery, withhold any services, demand security, or terminate the contract and retain all monies paid in advance.

5. DELIVERY AND PASSING OF PROPERTY AND RISK
5.1 Any period or times stated for delivery of the goods or the provision of the services (including installation) are to be regarded as estimates and whilst we will do our best to keep to such periods and times, no guarantee is given and we accept no responsibility for loss or damage resulting from delay in delivery or installation.
5.2 Unless otherwise agreed in writing the goods will be obtained by us from the manufacturer, and are for delivery at your premises.
5.3 The property in the goods shall not pass until you have paid to us the full price thereof.
5.4 The risk in the goods shall pass to you on delivery.

6. DESCRIPTIONS AND EXCLUSIONS
6.1 The description of the goods and any services contained in our quotation, your order, and the goods specification is deemed to be exhaustive. If there is any conflict or ambiguity between these documents, the following order of priority shall determine which documents shall prevail: goods specification, our quotation, your order.
6.2 Where the contract is for the sale of equipment, we will undertake a technical review of your order and reserve the right to make changes to the equipment specification as appropriate to fulfil your requirements. We will issue the final technical specification to you prior to delivery of the equipment. Any changes made to the specification do not require your consent and will not result in a change in price unless you have asked us to make such changes.
6.3 All descriptions of goods and any services are approximate only and intended to serve merely as a guide and accordingly we shall not be liable for their accuracy.
6.4 All of our catalogues, technical circulars, price lists and other literature are subject to change at our discretion.
6.5 In relation to the services, we shall have the right to make any changes to the services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or the quality of the services.
6.6 You shall be responsible for ensuring that the goods (and in the case of the equipment and its settings) are fit for your intended purpose. We do not warrant that the goods will be fit for any particular purpose and we recommend that you undertake your own assessments, including shelf life trials, to establish the suitability of the goods prior to your commercial use.
6.7 We shall not be responsible for the items listed below which shall be expressly excluded from the contract and in relation to which you accept responsibility. Any delay in the provision of any of these items may delay the performance of the contract and you shall reimburse us immediately on demand for any charges and costs (in particular storage costs) we incur as a result:
(a) evaluation of the suitability of your premises for the installation and operation of the equipment including, but not limited to all buildings and construction works, foundations, factory floor, pits and cable ducts and other construction works on your site; electricity supply up to the main switch on your site; connection and supply lines to the connecting points of the equipment on your site for utilities such as process gases, cooling water, compressed air and exhaust pipes etc.; wiring and tubing of any peripheral hardware;
(b) any on-site inspection required to check that your site fulfils the safety regulations and/or any other legal requirements for the operation of the equipment;
(c) any on-site inspection of the ambient temperature and humidity at your site where the equipment shall be operated;
(d) all preparatory work for the erection, assembly and installation of the equipment on your site including unloading from the delivery truck, unpacking, transportation and positioning on your assembly site; assembly crane, fork-lift truck, hoisting devices including operator and tools on your site;
(e) any consumables and products which shall be packaged with the equipment required for the assembly and installation of the equipment by the manufacturer at Multivac Germany, Bahnhofstrasse 4, 87787 Wolfertschwenden, Germany and for the assembly and installation of the equipment at your site and for the training;
(f) any consumables and products which shall be packaged with the equipment for production, research and development purposes and/or testing;
(g) any training required on Multivac premises ;
(h) un-crating of the equipment on your site and removal of crating material;
(i) the waste disposal of packaging material, packaging, waste products and similar items (including provision of sufficient and adequate waste containers);
(j) any updates of the equipment software;
(k) any construction drawings of the equipment and/or parts of the equipment and/or the moulding tool and/or parts of it;
(l) any tools necessary for the production and/or construction of the equipment or parts of the equipment and/or the moulding tool and/or parts of the moulding tool;
(m) any seismic anchorage;
(n) access to the equipment installation site on your site which must be suitable for the transport arrangements required for the performance of this contract;
(o) levelled surfaces for the storage of materials and equipment; and
(p) any heater or cooler or any other system, necessary to reach and maintain the ambient temperature and humidity required for the proper operation and packaging of the equipment.

7. WARRANTY
7.1 Subject to clause 7.7 we warrant that on delivery, and for a period of 6 months from the warranty start date (warranty period), the equipment and the spare parts shall:
(a) conform in all material respects with their description;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979)
7.2 Insofar as the benefit of any warranty in respect of the consumables which may be or have been given to us by the manufacturer or the suppliers may be assignable, you will be entitled to the benefit thereof.
7.3 You shall not rely upon any representation as to the goods’ fitness for any particular purpose unless the same shall have been made by us in writing.
7.4 Subject to clause 7.5, if:
(a) you give notice to us in writing during the warranty period within 3 working days of discovery that some or all of the goods do not comply with the warranty set out in clause 7.1;
(b) we are given a reasonable opportunity of examining such goods; and
(c) you (if we ask you to do so) return such goods to our place of business at your cost,
we shall, at our option, repair or replace the defective goods, or refund the price of the defective goods in full.
7.5 We shall not be liable for failure to comply with the warranty set out in clause 7.1 in any of the following events:
(a) improper installation or start-up of the goods by you or a third party;
(b) the defect arises because you failed to follow our 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 due to corrosion or fair wear and tear of the goods which for the avoidance of doubt shall include all knives and gaskets;
(d) you use the goods in a way not notified to us at the time we enter into the contract or subsequently approved in writing;
(e) you alter or repair the goods without our prior written consent and should our prior written consent have been granted, you have not followed our instructions;
(f) you use non-compatible consumables or materials, including films;
(g) the defect is caused or contributed to by materials or products not supplied by us;
(h) the defect is caused or contributed to by the input documents (as defined in clause 12) or anything contained in them;
(i) your continuous use of goods with a potential defect/failure which has led to a defect/failure of the goods;
(j) a defect/failure arises as a result of wilful damage, negligence, or abnormal storage or working conditions;
(k) any electronic or chemical impacts, abnormal temperatures, meteorological conditions or any other similar or natural circumstances not attributable to us;
(l) if you do not grant us a reasonable time in order to make necessary repairs and/or supplying replacements where we think fit;
(m) if our warranty obligations under clause 7.1 are not permitted by law including import/export controls; or
(n) you alter or repair the goods without our written consent;
(o) the goods differ from their description or their specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements;
(p) if execution of our warranty obligations is not permitted by law or regulation.
7.6 Except as provided in this clause 7, we shall have no liability to you in respect of the goods' failure to comply with the warranty set out in clause 7.1.
7.7 In the event that we are threatened with or involved in any legal action, whether civil or criminal, (‘the action”) concerning goods or services supplied to you under the contract:
(a) you will on receipt of a written demand from us make any of the goods available to us for inspection at such times as we may reasonably request and deliver to us copies of all documents in your custody, possession or control relating to the goods and services concerned which are relevant to the action.
(b) you will assist us in avoiding or defending the action or minimising the damage resulting from the action including but not limited to tracing all parties whose products may have been packaged by the goods.

8. LIMITATION OF LIABILITY
8.1 Each of the sub-clauses in this clause 8 are to be treated as separate and independent.
8.2 Nothing in these conditions shall be deemed to exclude or limit our liability for death or personal injury resulting from negligence or fraudulent misrepresentation or any breach of the Consumer Protection Act 1987.
8.3 No waiver of any of these conditions shall affect any other condition.
8.4 Subject to clause 8.2 we shall not in any circumstances be liable to you in respect of indirect and/or consequential loss or damage such as (but not limited to) loss of profit, products, production and pure financial loss arising out of the contract or in connection with any goods or services sold thereunder.
8.5 Subject to clause 8.2 our total liability to you in respect of all losses other than those in 8.4 above whether in contract, tort (including negligence and breach of statutory duty) misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the contract shall be limited to the contract price.
8.6 You are obliged to undertake regular careful examinations of the goods and we will not be liable for loss or damage caused by a defect or danger which could have been discovered by such an examination.
8.7 Save as expressly stated herein or in the guarantee supplied with the equipment, all warranties and conditions whether express or implied by statute (including in particular Section 13, 14 and 15 of the Sale of Goods Act 1979), usage, trade custom or otherwise relating to the quality or nature of the equipment or their life or wear or fitness for any particular purpose or use under any specific conditions are hereby expressly excluded.

9. HEALTH AND SAFETY AT WORK ACT
9.1 The equipment will be fitted with such guarding and safety devices as we may consider necessary to ensure, so far as is reasonably practicable, that it is safe when properly used in accordance with the operating manuals. You shall be solely responsible for and shall keep us indemnified against any loss, liability or expense arising directly or indirectly from use of the equipment other than in accordance with such operating manuals. If you require any guarding or safety device addition to the above, this will be provided as an addition to the equipment specification and the price and any estimated times for completion will be adjusted accordingly. You will be responsible for compliance with any requirements of local legislation.
9.2 You will ensure that only fully trained staff operate the equipment.

10. INSPECTION AND REJECTION
10.1 You are obliged to undertake a careful inspection of the goods on delivery or collection as the case may be.
10.2 You are obliged to notify us in writing prior to completion of the commissioning of the goods of any damage, defects, non-compliance with specification or malfunction (“malfunction”) and we will not be liable for any malfunction which would have been apparent from a careful inspection if the terms of this clause are not complied with.
10.3 In all cases where malfunction is complained of you will notify us by telephone within 24 hours and in writing within 48 hours and provide us with an opportunity to inspect the equipment complained of.
10.4 You will not be entitled to reject the goods or delay payment if you or your employees servants or agents are responsible for the malfunction or if in our opinion the malfunction can be rectified by repair at your premises instead of replacement of the goods.
10.5 We will, at our discretion, repair or replace defective goods with non-defective material and you will only be entitled to reject the goods in the event that we are unable to rectify a defect and provided always that where such a defect is minor, you will only be entitled to a reasonable negotiation on the purchase price.

11. FORCE MAJEURE
We shall not be responsible for any failure or delay on our part to fulfil any obligations to you caused by events or circumstances outside our control (which shall include failure of the manufacturers to deliver the goods required by us to fulfil your order).

12. INTELLECTUAL PROPERTY RIGHTS
12.1 Subject to clause 12.2 all intellectual property subsisting in the drawings, specifications and other documents provided by us in connection with the contract (materials), the goods and our services belong to us. If the goods are commissioned by you or their design or manufacture otherwise includes any specification, drawings, guidelines, input or contribution (input documents) from you, you agree that all intellectual property subsisting in such Input Documents shall belong to us and you hereby assign all of your rights, title and interest in such intellectual property to us and will sign all documents and do all acts necessary to vest such in us. You may use the input documents and the materials for the sole purpose of operating and servicing the goods for their intended purpose.
12.2 We shall not own the intellectual property rights in the packaging design where you have specified the design.
12.3 You shall be responsible for the following which shall be expressly excluded from the contract:
(a) Any intellectual property licence and/or third party approvals necessary for the manufacture, subsequent sale and/or distribution of the packaging and/or the subsequent sale and/or distribution of the products packaged with the equipment;
(b) Any third party approvals (including but not limited to governmental approvals, official permissions) necessary for the use and operation of the equipment within the jurisdiction where the equipment shall be operated;
(c) Any liability for any infringement of third party intellectual property rights which is arising out of or in connection with: the modifications of the goods made by you and/or any other third party without our prior written approval; modifications of the goods made by you and/or any other third party after our prior written approval but not in accordance with our instructions or those of our employees and/or subcontractors; any input documents provided by you or any third party and/or products provided by you or any third party
12.4 You shall indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other professional costs and expenses) suffered or incurred by us arising out of or in connection with any claim made for infringement of third party intellectual property rights as anticipated by clause 12.3(c) above.
12.5 You shall immediately notify us in writing giving full particulars if any of the following matters come to your attention:
(a) any actual, suspected or threatened infringement of the intellectual property rights in the goods or services; or
(b) any claim made or threatened that the goods or services infringe the intellectual property rights of any third party.
12.6 If a court of competent jurisdiction determines that the goods or services infringe the intellectual property rights of any third party where such infringement is not caused or contributed to by input documents provided by you or modifications made to the equipment by you we shall indemnify you against all liabilities, costs and expenses you suffer or incur arising out of such infringement provided that if a third party notifies an intention to make a claim, or notifies an intention to make a claim, against you which may give rise to a claim under this indemnity, you shall immediately give notice of the claim, specifying the claim in detail and the provisions of clause 12.7 shall apply.
12.7 In respect of any of the matters listed in clause 12.4 and 12.6 above:
(a) we shall, at our absolute discretion, decide what action to take, if any;
(b) we shall have exclusive control over and conduct of all claims and proceedings;
(c) you shall not make any admissions other than to us and shall provide us with all assistance that we may reasonably require in the conduct of any claims or proceedings.
12.8 If any claim is made, or likely to be made, under clause 12.6 above, we may at our sole option and expense:
(a) procure the right for you to continue to use the goods;
(b) modify the goods so that they cease to be infringing provided that the goods shall comply with the contract;
(c) terminate the contract immediately by notice in writing to you and refund the price paid on return of the goods.
12.9 We shall not in any circumstances have any liability for any claim of infringement of intellectual property rights:
(a) if you do not grant us a reasonable time in order to take the actions set out in clause 12.8 above;
(b) if the actions set out in clause 12.8 above are economically unreasonable, cannot be realised within a reasonable period or are not permitted by law; or
(c) you do not comply with clauses 12.5 and 12.7 above.

13. FURTHER OBLIGATIONS
13.1 You shall:
(a) ensure that the equipment is safe for the use for which it is intended;
(b) obtain at your own expense all licences, permits and consents necessary for the provision of the equipment;
(c) only make use of the equipment for the purposes authorised in this agreement; and
(d) comply with all regulations and practices in force or use in the territory where the equipment is operated to safeguard our rights in the equipment.

14. TERMINATION
14.1 Without prejudice to any other rights we may by notice in writing to you terminate any contract forthwith or suspend any further deliveries or provision of services under the contract, without any liability to you if:
(a) You shall commit any breach of any of the terms of this or any other contract with us and on our part to be observed or performed PROVIDED if such breach is in our opinion remediable that we have previously given you notice thereof and the same had not been remedied within seven days thereafter; or
(b) You become subject to any of the events listed below or we reasonably believe that you are or about to become subject to them:
(i) you suspend, or threaten to suspend, payment of your debts or are unable to pay your debts as they fall due or you admit inability to pay your debts or are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986; or
(ii) you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors; or
(iii) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up; or
(iv) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over you; or
(v) the holder of a qualifying floating charge over your assets has become entitled to appoint or has appointed an administrative receiver;
(vi) a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets; or
(vii) one of your creditors or encumbrancers attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 days; or
(viii) any event occurs, or proceeding is taken, with respect to you in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1(c) to clause 11.1(i) (inclusive); or
(ix) you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business; or
(x) you undergo a change of control (as defined by section 84 of the Income and Corporation Taxes Act 1988).

15. GENERAL
15.1 All contracts shall be governed by and construed in accordance with English Law and all disputes arising under such contracts shall be submitted to the exclusive jurisdiction of the English courts.
15.2 The parties to the contract do not intend that any term of the contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
15.3 The Contract constitutes the entire agreement between the parties. You acknowledge that you have not relied on any statement, promise or representation made or given on our behalf which is not set out in the Contract.
15.4 Except as set out in these conditions (which shall include, without limitation, clause 6.2), no variation of the contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by us.
15.5 Any notice given to a party under the Contract shall be in writing and addressed to that party at its registered office or principal place of business (if not a company) and shall be delivered and addressed as follows:
(a) by hand or commercial courier when left at the address ;
(b) by prepaid first class post or recorded delivery at 9.00am on the second working day after posting.
15.6 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

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