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Terms

Conergy UK Limited
General Terms and Conditions of Purchase

1. Application of terms

1.1 These standard conditions for the purchase of goods and/or services shall apply to and govern all contracts for the supply to Conergy UK Limited or any of its affiliates (“Customer“) of the goods and/or services described in any purchase order (“Goods” and “Services“, respectively) issued by the Customer from time to time (“Order“) to any person, firm or company who accepts the Order (“Supplier“) and shall govern the Contract and shall prevail over and supersede any terms or conditions contained or referred to in correspondence or in any quotation, acknowledgement or other document of the Supplier.

1.2 The Customer will not be liable for any Order unless it is signed by a duly authorised signatory of the Customer. Any variations to these conditions shall have no effect unless agreed in writing and signed by a director of the Customer or duly authorised signatory

2. Order acceptance, variation and cancellation

2.1 Return by the Supplier to the Customer of an order acknowledgment, delivery of the relevant Goods, or provision of the relevant Services, (whichever is the earlier), shall constitute conclusive evidence of the Supplier’s acceptance of the relevant Order and each such accepted Order shall constitute a separate contract between the Customer and the Supplier subject to these conditions (“Contract“).

2.2 The Supplier shall notify the Customer within four working days of the date of the Order if the Supplier intends to refuse the Order. Under no circumstances is the Supplier to unreasonably refuse to accept an Order.

2.3 Materials, equipment, tools, dies, moulds, copyright, design rights or any other forms of intellectual property rights in all drawings, specifications and data supplied by the Customer to the Supplier or not so supplied but used by the Supplier specifically in the manufacture of the Goods and/or provision of the Services shall at all times be and remain the exclusive property of the Customer but shall be held by the Supplier in safe custody at its own risk and maintained and kept in good condition by the Supplier until returned to the Customer and shall not be disposed of other than in accordance with the Customer’s written instructions, nor shall such items be used otherwise than as authorised by the Customer in writing.

2.4 The Customer reserves the right to vary any aspect of the Order at any time prior to dispatch of the Goods and/or commencement of the provision of the Services. Any such variation must only be undertaken on the authority of an official amendment to the Order and such must be signed by a duly authorised signatory of the Customer.

2.5 The Customer may at any time prior to dispatch of the Goods and/or commencement of the provision of the Services cancel the Order at no cost to the Customer.

2.6 Any Goods provided shall be of the best available design, of the best quality, material and workmanship, conform to any regulatory manufacturing requirements (ie BSE) be without fault and conform in all respects with the Order and

specification and/or patterns supplied or advised by the Customer to the Supplier.

2.7 Any Services provided shall be performed with the best care, skill and diligence and in accordance with best practice in the Supplier’s industry, profession or trade.

2.8 The Customer’s rights under these conditions are in addition to the statutory conditions implied in favour of the Customer by the Sale of Goods Act 1979 or the Supply of Goods and Services Act 1982.

2.9 If the results of any inspection or testing cause the Customer to be of the opinion that the Goods and/or Services do not conform or are unlikely to conform with the Order or to any specifications and/or patterns supplied or advised by the Customer to the Supplier, the Customer shall inform the Supplier and the Supplier shall immediately take such action as is necessary to ensure conformity and in addition the Customer shall have the right to require and witness further testing and inspection.

2.10 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Supplier’s obligations under the Contract.

3. Delivery of Goods and/ or Provision of Services

3.1 The Supplier shall deliver the Goods (carriage paid) or commence the provision of the Services, as applicable, on the date specified in the Order or, if no date is given, within 28 days of the Order (“Delivery Date” or “Performance Date“, respectively). Unless otherwise agreed, deliveries shall only be accepted and Services shall only be performed during business hours. (8am to 6pm excluding weekend and bank-holidays)

3.2 From the Performance Date, the Supplier shall diligently and efficiently perform such Services until completion. Timely delivery and/or performance of the Goods and/ or Services shall be of the essence and, unless with the Customer’s express prior consent, on no account shall the Customer be obliged to accept any Goods and/or Services delivered or performed earlier than the Delivery Date or Performance Date.

3.3 The Supplier shall not deliver any Goods in instalments, unless with the Customer’s express prior consent.

3.4 The Customer may, at any time prior to dispatch of the Goods and/or commencement of the provision of the Services, give notice to the Supplier postponing the Delivery Date or Performance Date. Such notice will specify the commencement and likely duration of the postponement.

3.5 Unless otherwise agreed the Supplier shall deliver the Goods to, and/or perform the Services at, the premises specified in the Order.

3.6 The Supplier shall procure, obtain and/or maintain (as applicable) the necessary licences, permits and any other authority required to deliver the Goods to the Customer, and/or perform the Services, and shall observe all health and safety rules and regulations and any other security requirements or applicable law that apply at the Customer’s premises and/ or apply to the supply of the Goods and/ or provision of the Services.

3.7 Unless stated otherwise in the relevant Order, the Supplier shall deliver any Goods to the Customer free of any import duties or taxes payable.

3.8 The Supplier shall ensure that any Goods are adequately packed and labelled (and in accordance with any industry standards, where applicable) to prevent damage during transportation and storage.
3.9 The Supplier shall ensure that each delivery of Goods is accompanied by a delivery note showing the Order number, date of Order, number of packages and contents.

3.10 If any Goods are not delivered and/or Services are not provided in full accordance with all the requirements of the Contract, without prejudice to any other rights which it may have, the Customer reserves the right to: (a) cancel the Order in whole or part; (b) purchase substitute goods and/ or services elsewhere; (c) deduct from the amounts payable to the Supplier any costs, expenses and losses incurred by the Customer as a reasonably foreseeable consequence of the failure to deliver or perform in accordance with the Contract; and/or (d) receive a full refund of any amounts paid by the Customer to the Supplier in advance within 28 days of the Customer informing the Supplier of such event

3.11 If any Goods are delivered to the Customer in excess of the quantities ordered, or any Services are provided in excess of those requested, the Customer shall not be bound to pay for the excess and any excess shall be and shall remain at the Supplier’s risk and shall be returnable at the Supplier’s expense.

4. Risk and title

4.1 Any Goods shall remain at the risk of the Supplier until delivery to the Customer is complete (including off-loading and stacking) when ownership of those Goods shall pass to the Customer or, if earlier, when payment for those Goods is made by the Customer.

5. Acceptance of Goods

5.1 The Customer shall not be deemed to have accepted any Goods until it has had a reasonable time to inspect them following delivery. The Customer shall also have the right to reject the Goods and/or Services as though they had not been accepted up until a reasonable time after any latent defect in the Goods and/or Services has become apparent.

5.2 Rejected Goods (including Goods delivered in excess of the relevant Order) may be returned to the Supplier at the Supplier’s risk and expense. The Customer will be under no liability to pay for rejected Goods.

6. Price and payment

6.1 The Supplier shall invoice the Customer for any Goods and/or Services in accordance with the prices set out in the Order. Unless otherwise expressly agreed, the Supplier shall invoice the Customer for any Goods following the date the Goods are delivered to the Customer’s premises and for any Services on completion of those Services.

6.2 Unless otherwise specified in the Order, the Supplier will invoice the Customer and the Customer will pay invoices in British Pounds Sterling.

6.3 VAT, where chargeable by the Supplier, shall be payable by the Customer at the rate prescribed by law. All other taxes, duties, customs or similar charges shall be the responsibility of the Supplier.

6.4 Except as otherwise agreed in writing by the Customer, payment of invoices will be made within 60 days from the date when the Customer receives a correct invoice which has been properly addressed and referenced with an official Customer purchase order number (“Due Date“). If the Customer disputes any invoice in good faith, it shall be entitled to withhold payment of the disputed amount pending resolution of the dispute but will pay the undisputed amount in accordance with the terms of this clause 6.4. Without prejudice to any other right or remedy, the Customer shall be entitled to set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer (however such liability arises).

6.5 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing any Services, and the Supplier shall allow the Customer to inspect such records at all reasonable times on request.

6.6 Unless the Customer disputes an invoice on reasonable grounds, the Supplier may charge interest on all sums outstanding beyond the Due Date. Such interest may be charged from the Due Date until the date of payment (including after any judgement has been obtained) at the rate of 2% per annum above the base rate of the Bank of England for the time being.

7. Warranties

7.1 The Supplier represents and warrants that: (a) it shall sell any Goods to the Customer with full title guarantee and that none of the Goods is subject to any charge, pledge or other encumbrance; (b) all Goods shall be of genuine and authentic manufacture, new and unused; (c) any Services shall be provided by personnel who are suitably skilled and experienced; (d) any Goods and/or Services shall comply with their published specifications and shall, for a period of 24 months from the date of delivery or performance, be free from defects in manufacture and workmanship; (e) any Goods (and their use and possession by the Customer or any of its affiliates) and/ or Services, do not and will not infringe the intellectual property rights of any third party; (f) any Goods and/or Services, and the Supplier in the performance of its obligations under the Contract, shall comply with all applicable laws, regulatory requirements and codes of practice of any competent authority for the time being in force.

7.2 In the event of any breach of any of the representations and warranties set out in clause 7.1, in addition to any other remedies available to the Customer under these conditions or otherwise, the Supplier agrees promptly to take (at no additional cost to the Customer) whatever action is necessary to remedy such breach, without interruption to the Customer’s ongoing business, time being of the essence.

8. Liability

8.1 The Supplier shall indemnify, defend and hold harmless the Customer and its affiliates against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) that the Customer or any of its affiliates incurs, suffers or for which it becomes liable howsoever arising as a result of or in connection with: (a) any breach of the Supplier’s obligations under clause 9; (b) any infringement by the Supplier of the Customer’s intellectual property rights; and/or (c) any claim that the use or possession of any Goods, or receipt of the benefit of any Services, by the Customer or any of its affiliates infringes the intellectual property rights of any third party.

8.2 For the duration of the Contract and for a period of one year thereafter, the Supplier shall maintain in force, with a reputable insurance company and at its own cost, suitable professional indemnity, product liability, public liability and such other insurance policies with a per claim policy limit to cover all liabilities that may arise under or in connection with the Contract and shall, on the Customer’s request from time to time, produce both the insurance certificate and/ or policy schedule in respect of each insurance.

9. Confidentiality

9.1 The Contract and any information or material of a confidential or proprietary nature (“Confidential Information“) supplied by (or on behalf of) the Customer

(including any information relating to its affiliates, business or financial or other affairs) to the Supplier are strictly confidential and will not be disclosed (in whole or in part) by the Supplier to any other person without the Customer’s prior written consent (except where disclosure is required by any government authority or pursuant to a court order). The Supplier shall apply to the Confidential Information no lesser security measures and degree of care than those which it takes in protecting its own confidential information and in any event no less than that which a reasonable person or business would take in protecting its own confidential information.

9.2 The Supplier shall not, without the prior written consent of the Customer, issue any press release or any marketing or publicity materials including reference to the Customer.

10. General

10.1 The Supplier shall not sub-license or assign, sub-contract or delegate any or all of its rights or obligations under the Contract without the prior written consent of the Customer.

10.2 If a party delays in enforcing any of its rights under the Contract (whether in relation to a breach by the other party or otherwise) or agrees not to enforce any of its rights, or to delay doing so, then unless the party concerned expressly agrees otherwise, that delay or agreement shall not be treated as waiving the rights of the party concerned. Any waiver of a party’s rights in relation to a particular breach of the Contract shall not operate as a waiver of any subsequent breach.

10.3 If any provision of these conditions is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of these conditions or the Contract as a whole. If any provision of these conditions is so found to be ineffective or unenforceable but would be effective or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it effective and enforceable.

10.4 The Supplier acknowledges that any Goods and/or Services supplied may be for the benefit of any of the Customer’s affiliates and that each such affiliate may enforce the terms of the Contract subject to and in accordance with these conditions and the provisions of the Contracts (Rights of Third Parties) Act 1999 (“Act“). Except as provided in this clause 10.4, no term of the Contract is enforceable under the Act by any person who is not a party to the Contract.

10.5 Any dispute or difference between the parties arising out of or in connection with the Contract or its interpretation (“Dispute“) shall be referred to the managing director (or equivalent officer) of each party. If any such Dispute remains unresolved for a period in excess of 14 days from the date it was referred to the latter representatives (or such other period as the parties may agree), it will be resolved in accordance with clauses 10.6 and 10.7.

10.6 Any Dispute which remains unresolved following the exhaustion of the procedure set out in clause 10.5 shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration (“LCIA“), which rules are deemed to be incorporated by reference into the Contract. Nothing in these conditions shall prevent either party, in cases in which interim, injunctive or declaratory relief is required, from commencing proceedings and pursuing claims before a court of competent jurisdiction.

10.7 The Contract is governed by English law. Subject to clause 10.6, both parties submit to the exclusive jurisdiction of the English Courts in relation to any dispute concerning these conditions or the Contract, but the Customer is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its intellectual property rights and/or Confidential Information.

Conergy UK Limited
General Terms and Conditions of Sale and Delivery

1. Basis of contract

1.1 These Conditions apply to any agreement entered into between Conergy UK Limited (“we”, “our” or “us”) and any person, firm or company (each a “Customer”) with whom we agree to the sale and purchase of goods (a “Contract”) as set out in an Order (“Goods”). The Contract shall apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

1.2 The Customer’s order for goods, whether set out in a purchase order, order form, email or other form of agreement to purchase Goods (each an “Order”) constitutes an offer by the Customer to purchase the Goods in accordance with the terms and conditions set out in this document (the “Conditions”). If there is a conflict between these Conditions and the terms set out in an Order, the terms set out in the Order shall prevail. The Customer is responsible for ensuring that the terms of the Order and any applicable specification submitted by the Customer are complete and accurate. The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence. For the avoidance of doubt, written notice may be validly given by email or fax.

1.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

1.4 Any samples, drawings, descriptive matter, or advertising, economic viability calculations and yield forecasts produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues, brochures or other materials are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force unless they are included in the technical product description agreed between us and the Customer.

1.5 Any tender or quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 days from its date of issue, provided that any day which is a Saturday, Sunday or public holiday in England shall not be included (and any qualifying day shall be known herein as a “Business Day”).

1.6 We shall reserve title and copyright to illustrations, drawings, calculations and other documents – including in electronic form. This shall in particular apply to those documents which are designated as confidential. The customer shall require our express written approval before passing them on to third parties.

2. Goods

In respect of any specification for Goods provided 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 2 shall survive termination of the Contract. The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.

3. Delivery

3.1 The Supplier shall ensure that:

(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

(b) if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.

(c) The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after the Supplier notifies the Customer that the Goods are ready. Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.

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

(e) If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

3.2 If the delivery, then:

Customer fails to accept delivery of the Goods on the due date for

(a) delivery of the Goods shall be deemed to have been completed at 12.00pm on the due date for delivery; and

(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

3.3 If 10 Business Days after the due date for delivery the Customer has still not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

3.4 The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.

3.5 The Supplier 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. Quality

4.1 In the event of any conflict between the terms of this clause 4 and any specific warranty, guarantee or other rights granted by us to the Customer, the terms of such specific warranty, guarantee or other rights shall apply.

4.2 The Supplier 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 their description;

(b) be free from material defects in design, material and workmanship; and

(c) be fit for any purpose held out by the Supplier.

4.3 Subject to clause 4.4, if:

(a) the Customer gives notice in writing to the Supplier 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 4.2;

(b) the Supplier is given a reasonable opportunity of examining such Goods; and

(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, then the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

4.4 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 4.2 in any of the following events:

(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 4.3;

(b) the defect arises because the Customer failed to follow the Supplier’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 Supplier following any drawing, design or specification supplied by the Customer;

(d) the Customer alters or repairs such Goods without the written consent of the Supplier;

(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;

(f) any discoloration of modules or other Goods, which does not impair their functionality;

(g) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or

(h) in the case of toll manufacturing or similar processes, the defect arises as a result of a defect in or unsuitability of goods or materials provided by the Customer.

4.5 Except as provided in this clause 4, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 4.2.

4.6 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

4.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

5. Title and risk

5.1 The risk in the Goods shall pass to the Customer as the soon as such Goods have left our warehouse for delivery to the Customer.

5.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods and any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.

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

5.4 hold the Goods on a fiduciary basis as the Supplier’s bailee;

(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 7; and

(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time,

but the Customer may resell or use the Goods in the ordinary course of its business.

5.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 7, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods 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.

6. Price and payment

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

6.2 The Supplier may, by giving notice to the Customer at any time up to [10] 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 Supplier’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 Supplier adequate or accurate information or instructions.

6.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

6.4 The price of the Goods is exclusive of amounts in respect of value added or other applicable sales taxes (“VAT”). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

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

6.6 The Customer shall pay the invoice in full and in cleared funds within 7 days of the date of the invoice unless otherwise agreed in the Order. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.

6.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (“due date”), then the Customer shall pay interest on the overdue amount at the rate permitted pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. Should costs and interest already have been incurred, we shall be entitled to offset any payment first against the costs, then the interest and finally against the principal outstanding.

6.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

7. Customer’s insolvency or incapacity

7.1 If the Customer (a) suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply, (b) undergoes or makes or suffers any arrangement to enter into any insolvency process or (c) ceases trading or (d) is or becomes, in our reasonable discretion, not credit worthy or capable of performing its obligations under the Contract, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.

7.2 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

8. Limitation of liability

8.1 Nothing in these Conditions shall limit or exclude the Supplier’s 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; or

(c) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

8.2 Subject to clause 8.1:

(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed [100]% of the price of the Goods.

9. Software Use

If software is included in the scope of delivery, the Customer shall be granted a non-exclusive and non-transferable right to use the software delivered including its documentation; it shall be transferred exclusively for use on the delivery item intended for this purpose. Use, duplication, revision, translation of the software and transformation from the object code into source code for other purposes shall be forbidden.

10. Force majeure

Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. For the purposes of these Conditions, a “Force Majeure Event” means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock- outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default or delay of suppliers or subcontractors.

11. General

11.1 Assignment and subcontracting. The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.

11.2 Severance. 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.

11.3 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

11.4 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.

11.5 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.

11.6 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.