Terms of Business

1. GENERAL

1.1 In these terms ‘Orbitec’ is Orbitec Limited and ‘the Buyer’ is the person named on the form of order, ‘Goods’ refers to any item or service supplied by ‘Orbitec’ to the buyer

1.2 References to any statute or statutory provision shall be construed as a reference to the same provision as amended consolidated extended re-enacted or replaced

1.3 The headings in these Conditions do not affect their construction

1.4 The Contract will be on these Conditions and any Special Conditions in the Quote (which shall prevail over conflicting terms in these Conditions) to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply) whether in an order confirmation or otherwise

1.5 These Conditions can only be varied if Orbitec agrees in writing

1.6 No order placed by the Buyer shall be deemed to be accepted by Orbitec until a written Acknowledgement of Order is issued by Orbitec or (if earlier) Orbitec delivers the Goods to the Buyer

2. DESCRIPTION AND QUOTES

2.1 The description of the Goods is set out in the Quote and/or Orbitec’s Acknowledgement of Order. All drawings specifications advertising or other material issued by Orbitec are issued for the sole purpose of giving an approximate idea of the Goods

2.2 Orbitec may alter or amend the Goods without liability to the Buyer

3. DELIVERY

3.1 Delivery of the Goods shall be to the Delivery Address. The Buyer may at its option collect the Goods from Orbitec’s premises at a time and date agreed by the parties.

3.2 Where a Delivery Date or a Collection Date is specified it is an estimate only and time for delivery is not and cannot become of the essence. Otherwise delivery or collection will be within a reasonable time

3.3 Orbitec will not be liable for any loss (including loss of profit) costs damages or expenses caused (directly or indirectly) by any delay in the delivery or collection or by non-delivery or by non-availability for collection of the Goods however caused

3.4 If for any reason the Buyer does not accept delivery of the Goods or collect the Goods in the agreed date or if Orbitec is unable to deliver the Goods on the agreed date/the Delivery Date due to the Buyer’s fault without prejudice to any other remedy available to it Orbitec shall be entitled to treat this Contract as repudiated by the Buyer

4. RISK/TITLE

4.1 The Goods are at the risk of the Buyer from the time of leaving Orbitec’s premises

4.2 Title in the Goods will not pass to the Buyer until Orbitec has received from the Buyer all sums due to it in respect of

4.2.1 the Goods and

4.2.2 all other sums which are or which become due to Orbitec from the Buyer on any account

4.3 Until title in the Goods has passed to the Buyer the Buyer will

4.3.1 hold the Goods on a fiduciary basis as Orbitec’s bailee

4.3.2 store the Goods (at no cost to Orbitec) so marked that they remain readily identifiable as Orbitec’s property

4.3.3 keep the Goods in good condition and insured on Orbitec’s behalf for their full sales price against all risks

4.3.4 pay any proceeds of the insurance referred to in condition 4.3.3 to Orbitec

4.4 Orbitec has an irrevocable licence at any time to enter any premises where the Goods are stored to inspect them or (where the Buyer’s right to possession has terminated) to recover them

5. PRICE AND DEPOSITS

5.1 The price for the Goods (‘the Price’) (or where this is a contract of hire the “Rental due”) is set out in the Acknowledgement of Order

5.2 Any deposit paid by the Buyer shall be non-returnable

6. PAYMENT

6.1 Payment of the Price is due within 30 days of the date of Orbitec’s invoice

6.2 Time for payment is of the essence for all payments due hereunder

6.3 The Buyer shall make all payments due without any deduction or set-off

6.4 If Orbitec upon reasonable grounds doubts the Buyer’s ability or intention to make payment it may request security for such payment which the Buyer shall provide before delivery and if no such security is given Orbitec shall be entitled to cancel this Contract forthwith

6.5 The Buyer will pay interest to Orbitec on all sums owed by the Buyer to Orbitec at the annual rate of 3% above the base rate from time to time of Barclays Bank Plc accruing on a daily basis from the due date for payment until payment is made

7. QUALITY

7.1 Subject to the remaining provisions hereof Orbitec warrants that Goods manufactured by Orbitec will be free from defects of workmanship/materials for a period of 1 year from the date of delivery or collection as the case may be

7.2 Orbitec shall not be liable for a breach of clause 7.1

7.2.1 unless Orbitec is given a reasonable opportunity after receiving the notice of examining such Goods

7.2.2 if the Buyer uses the Goods after giving such notice or

7.2.3 if the defect arises because the Buyer failed to follow Orbitec’s instructions as to the storage installation commissioning use or maintenance of the Goods or (if there are none) good trade practice or

7.2.4 if the Buyer alters or repairs the Goods or connects to or uses the same with items not supplied by Orbitec

7.3 Orbitec’s total liability in respect of clause 7.1 shall be limited to Orbitec at its option repairing or replacing the Goods

7.4 Orbitec makes no representation and gives no warranty as to the suitability or quality of the Goods and in particular (but without limitation) gives no warranty or other undertaking that the Goods are fit for use in any particular territory or will comply with any legislation whether in the UK or elsewhere

8. LIMITATION OF LIABILITY

8.1 Subject to condition 7 this clause 8 sets out the entire liability of Orbitec to the Buyer under this Contract or for any other act or omission of Orbitec

8.2 Orbitec does not exclude liability for death or personal injury to the extent that it results from the negligence of Orbitec its servants or agents

8.3 Orbitec accepts liability for any breach on its part of any undertaking as to title implied by s12 of the Sale of Goods Act 1979 or s8 of the Supply of Goods (Implied Terms) Act 1973

8.4 Orbitec is not liable for shortages in quantities delivered unless the Buyer notifies Orbitec of any short delivery of the Goods within 1 working day of the delivery. In such circumstances Orbitec’s liability shall be restricted to making good the shortage

8.5 Save as to the matters set out in 8.1 and 8.2 above the Buyer acknowledges and agrees that he is able (if he so wishes) to insure against the risk of any loss (including consequential loss) damage or delay or expense of any kind whatsoever and howsoever caused (including by the negligence of Orbitec its servants or agents)

8.6 Where fine or especial tolerances are required in the Goods supplied beyond those generally accepted in the trade, no liability will attach to Orbitec unless such fine tolerances are notified in writing to Orbitec at the time of order Orbitec has acknowledged in writing that it is prepared to accept such order THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO CONDITION 8.7

8.7 Subject to conditions 8.2 and 8.4 above

8.7.1 Orbitec shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit loss of business depletion of goodwill or otherwise) costs expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with this Contract

8.7.2 Orbitec’s total liability in contract tort (including negligence or breach of statutory duty) misrepresentation or otherwise arising in connection this Contract shall be limited to the Price

8.7.3 Save as set out herein all liability for any representations whether oral or in writing and all guarantees, conditions or warranties whether expressed or implied by statute, common law or otherwise is hereby excluded and Orbitec shall not be liable for any loss (including consequential loss) damage or delay or expense of any kind whatsoever and howsoever caused (including by the negligence of Orbitec its servants or agents)

9. INDEMNITY

9.1 The Buyer shall indemnify Orbitec against all and costs, claims, demands, damages, expenses, liabilities, losses and proceedings whatsoever

9.1.1 which may be brought against or incurred by Orbitec or by the Buyer as a result of any event involving the Goods other than death or personal injury resulting solely from the negligence of Orbitec, its employees or agents

9.1.2 which may be suffered or incurred by Orbitec as a result of any breach or default by the Buyer of any term of this Contract

10. BREACH AND LIQUIDATION

10.1 If

10.1.1 the Buyer shall commit any breach of any term (express or implied) of his Contract or

10.1.2 the Buyer convenes a meeting of creditors or goes into liquidation or has a receiver/administrator/administrative receiver appointed or a resolution is passed or a petition is presented for the winding up of the Buyer or any other proceedings are commenced relating to the solvency of the Buyer

10.1.3 any distress or execution is levied upon the Buyer’s property or its assets then the Buyer shall be deemed to have repudiated this Contract and Orbitec may forthwith or at any time thereafter terminate this Contract

10.2 Orbitec shall have the right forthwith to determine the Contract and to cancel any Goods in transit Orbitec shall be entitled to a lien on all goods in Orbitec’s possession (notwithstanding that such goods or some of them may have been paid for) for the unpaid price of any goods sold and delivered to the Buyer by Orbitec under this or any other contract between the Buyer and Orbitec

10.3 No payment subsequently accepted by Orbitec shall in any way prejudice the rights of Orbitec hereunder. The Buyer shall no longer be in possession of the Goods with Orbitec’s consent and without prejudice to any other rights or remedies available to it Orbitec shall be entitled to repossess the Goods (for which purpose the Buyer grants Orbitec an irrevocable right to enter any premises in which the Goods are located)

10.4 The termination of this Contract or exercise of any of the rights and remedies set out above shall not affect any rights of Orbitec or liabilities of the Buyer subsisting at the date of termination

11. ASSIGNMENT/CROSS HIRING

11.1 This Contract is not assignable by the Buyer. Orbitec may assign the Contract or any part of it to any person, firm or company

11.2 Acknowledging that Orbitec also is in the business of hiring goods similar to or the same as the Goods to others the Buyer shall use the Goods only for its own purposes and shall not be entitled to hire, let, crosshire, share or otherwise part with possession thereof to any third party for commercial gain

12. FORCE MAJEURE

12.1 Orbitec may defer the date of delivery or cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of any part of its business due to circumstances beyond its control. If the event in question continues for a period in excess of 60 days, Orbitec shall be entitled to give notice in writing to the Buyer to terminate the Contract.

13. GENERAL

13.1 Each right or remedy of Orbitec under the Contract is without prejudice to any other right or remedy of Orbitec whether under the Contract or not

13.2 The Buyer waives all and any claims and rights of set-off against or any payment due hereunder and agrees to pay all other amounts due hereunder regardless of any equity, set-off or cross-claim on the part of the Buyer against Orbitec

13.3 If any provision of the Contract is found by any court, tribunal or administrative body to be wholly or partly illegal, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, voidness, voidability, unenforceability or unreasonableness be deemed severed and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

13.4 Failure or delay in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.

13.5 Any waiver by Orbitec of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default

13.6 This contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

13.7 The Buyer shall not

13.7.1 use the goods in or

13.7.2 resell the goods to any person who is or may be resident in or who is or may be carrying on business in (or who intends to supply the Goods to any such person) any country which is the subject of any embargo, direction or recommendation of the UK in relation to the export or use of goods of a type similar to or identical to the Goods.

14. COMMUNICATIONS

14.1 All communications between the parties about this Contract must be in writing and delivered by first class post or by fax to either party’s registered office or such other address as is notified in writing

14.2 Communications shall be deemed to have been received:

14.2.1 if sent by post, 3 days after posting (exclusive of the day of posting);

14.2.2 if sent by fax on a working day before 4.00 pm, at the time of transmission and otherwise on the next working day