TERMS AND CONDITIONS OF SALE OF ECOSTRAD LIMITED

1 Definitions and Interpretation

1.1       In these terms, the following words and expressions shall have the following meanings, unless otherwise stated:

“Business Day” a day other than Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Conditions” the terms and conditions set out in this document as amended from time to time in accordance with clause 13.4.

“Contract” the contract between Ecostrad and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

“Customer” the person or firm who purchases the Goods from Ecostrad.

“Delivery Location” has the meaning given in clause 3.2.

“Ecostrad” Ecostrad Limited, a company registered in England and Wales with company number 12715725, whose registered address is at Firecrest House Market Flat Lane, Scotton, Knaresborough, HG5 9JA.

“Force Majeure Event” an event, circumstance or cause 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 but not limited to 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, extremes of weather, 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, pandemics, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors or difficulty or increased expense in obtaining workmen, materials or transport or other circumstances affecting the supply of the Goods or of raw materials by Ecostrad’s normal source of supply or the manufacture of the Goods by Ecostrad’s normal means or the delivery of the Goods by Ecostrad’s normal route or means of delivery.

“Goods” the goods (or any part of them) set out in the Order.

“Insolvency Event” the other party: (a) enters liquidation or a winding up petition is presented against the company; (b) has a receiver, liquidator, administrator, trustee or an individual with a similar role appointed over any of its assets; (c) proposes to make any arrangements with its creditors or passes a resolution to place the company into liquidation; or (d) suffers an event which, under the law of a different country, is equivalent to any of the previously specified acts or events;

“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know how and trade secrets) 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.

“Order” the Customer’s order for the Goods, as set out in the Customer’s purchase order form or the Customer’s written acceptance of Ecostrad’s quotation.

1.2       A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.3       A reference to a party includes its personal representatives, successors and permitted assigns.

1.4       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.

1.5       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.

1.6       A reference to writing or written includes email but not fax.

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 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 Order are complete and accurate.

2.3       The Order shall only be deemed to be accepted when Ecostrad issues a written acceptance of the 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 advertising produced by Ecostrad is 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 Ecostrad shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.

3 Delivery

3.1       Ecostrad shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, any relevant Customer and Ecostrad 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 Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.

3.2       Ecostrad shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (the “Delivery Location”) at any time after Ecostrad notifies the Customer that the Goods are ready.

3.3       Delivery is completed on the Goods’ arrival at the Delivery Location. The Customer is responsible for unloading the Goods. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.

3.4       Ecostrad shall not be liable for any failure or delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Ecostrad with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. If Ecostrad fails to deliver the Goods, its liability shall be limited only to the direct costs incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.

3.5       If the Customer fails to accept delivery of the Goods within 3 Business Days of Ecostrad notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Ecostrad’s failure to comply with its obligations under the Contract in respect of the Goods:

3.5.1    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 Ecostrad notified the Customer that the Goods were ready; and

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

3.6       If 10 Business Days after the day on which Ecostrad notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, Ecostrad 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.

3.7       Ecostrad 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 The Goods

4.1       The Goods are described on Ecostrad’s website (the “Website”).

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

4.3       Ecostrad warrants that on delivery, and for a period of 12 months from the date of delivery, the Goods shall:

4.3.1    conform in all material respects with their description;

4.3.2    be free from material defects in design, material and workmanship; and

4.3.3    be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

4.4       In addition to the warranty contained in clause 4.3, Ecostrad also offers the warranty as set out on the Website for the time period specified on the Website.

4.5       Subject to clause 4.6, if:

4.5.1    the Customer gives notice in writing to Ecostrad within a reasonable time of discovery that some or all of the Goods do not comply with the relevant warranties set out in clauses 4.3 and 4.4;

4.5.2    Ecostrad is given a reasonable opportunity of examining such Goods; and

4.5.3    the Customer (if asked to do so by Ecostrad) returns such Goods to Ecostrad’s place of business at the Customer’s cost,

Ecostrad shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

4.6       Ecostrad shall not be liable for the Goods’ failure to comply with the relevant warranties set out in clauses 4.3 and 4.4:

4.6.1    the Customer or any end user makes any further use of such Goods after giving notice in accordance with clause 4.5;

4.6.2    the defect arises because the Customer or any end user failed to follow Ecostrad’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;

4.6.3    the Customer or any end user alters or repairs such Goods without the written consent of Ecostrad;

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

4.6.5    the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

4.7       Notwithstanding clause 4.5, if the Customer gives notice in writing to Ecostrad within 14 days of the date of the invoice issued in accordance with clause 6.6 that the Goods it has received are damaged, faulty or otherwise contrary to the warranty given in clause 4.3 (“Damaged Goods”):

4.7.1    Ecostrad will replace such Goods (“Replacement Goods”) and request that the Damaged Goods are returned to Ecostrad;

4.7.2    Ecostrad will issue an invoice for the Replacement Goods at the point of dispatch; and

4.7.3    such invoice will be credited unless Ecostrad does not receive the Damaged Goods within 14 days of the notification given by the Customer pursuant to this clause 4.7.

4.8       Except as provided in this clause 4, Ecostrad shall have no liability to the Customer in respect of the Goods’ failure to comply with the relevant warranties set out in clauses 4.3 and 4.4.

4.9       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.

4.10     These Conditions shall apply to any repaired or replacement Goods supplied by Ecostrad.

5 Title and Risk

5.1       Risk in the Goods shall pass to the Customer on completion of delivery.

5.2       Title to the Goods shall not pass to the Customer until the earlier of:

5.2.1    Ecostrad receiving payment in full (in cash or cleared funds) for the Goods in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment; or

5.2.2    the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 5.4.

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

5.3.1    store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Ecostrad’s property;

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

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

5.3.4    notify Ecostrad immediately if it becomes subject to any of the events listed in clause 11.1.3; and

5.3.5    give Ecostrad such information as Ecostrad may reasonably require from time to time relating to:

5.3.5.1 the Goods; and

5.3.5.2 the ongoing financial position of the Customer.

5.4       Subject to clause 5.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Ecostrad receives payment for the Goods. However, if the Customer resells the Goods before that time:

5.4.1    it does so as principal and not as Ecostrad’s agent; and

5.4.2    title to the Goods shall pass from Ecostrad to the Customer immediately before the time at which resale by the Customer occurs.

5.5       At any time before title to the Goods passes to the Customer, Ecostrad may:

5.5.1    by notice in writing, terminate the Customer’s right under clause 5.4 to resell the Goods or use them in the ordinary course of its business; and

5.5.2    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.

5.6       Where the Customer has resold Goods to end users, it shall be solely responsible for dealing with any end user queries or returns.

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 Ecostrad’s published price list in force as at the date of the Order.

6.2       Ecostrad may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

6.2.1    any factor beyond Ecostrad’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

6.2.2    any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or

6.2.3    any delay caused by any instructions of the Customer or failure of the Customer to give Ecostrad adequate or accurate information or instructions.

6.3       The price of the Goods excludes VAT, which the Customer shall pay in addition at the prevailing rate, subject to the receipt of a valid VAT invoice. The price includes the costs and charges of packaging and delivery of the Goods.

6.4       Where the Customer is required to pay a deposit, Ecostrad shall invoice the Customer for the deposit once the Order has been placed by the Customer and accepted by Ecostrad. The deposit shall be payable within 5 days of such invoice. The Customer acknowledges that Ecostrad shall not order or supply any Goods until the deposit has been paid in full and in clear funds. The deposit is non-refundable.

6.5       If the Customer fails to pay the deposit by the date it is due, Ecostrad may cancel the Contract by notice in writing to the Customer.

6.6       Ecostrad may invoice the Customer for the Goods on or at any time after completion of delivery.

6.7       Save for the deposit, the Customer shall pay each invoice submitted by Ecostrad within 60 days of the end of the month in which the invoice is received or in accordance with any credit terms agreed by Ecostrad and confirmed in writing to the Customer.

6.8       All payments shall be made in full and in cleared funds to a bank account nominated in writing by Ecostrad from time to time. Time for payment shall be of the essence of the Contract.

6.9       If the Customer pays an invoice in shorter timescales than those specified in clause 6.7, the Customer shall, at Ecostrad’s discretion, be entitled to an early settlement discount, on such terms as are agreed in writing between Ecostrad and the Customer.

6.10     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).

7 Returns

7.1       Subject to clause 7.2, the Customer may return Goods to Ecostrad provided that:

7.1.1    any such returns are agreed in writing with Ecostrad prior to their return;

7.1.2    such Goods are non-faulty and are returned in the same condition in which they were delivered and, to the extent the Customer has removed the Goods from their packaging for inspection purposes, such goods have been returned in the original packaging and the packaging has not been damaged or destroyed;

7.1.3    this clause 7.1 shall not apply to Goods that have been discontinued by Ecostrad since delivery of the Goods; and

7.1.4    not more than 12 months has elapsed since the date of the Order.

7.2       The Customer may only exercise its rights under clause 7.1 where, at the same time as returning Goods pursuant to clause 7.1, the Customer submits an Order for new Goods for an amount equal to or greater than three times the value of the Goods that are being returned.

7.3       The Customer shall be responsible for all transit and delivery costs in respect of any Goods that the Customer returns pursuant to this clause 7.

8 Onward Sales

8.1       The Customer acknowledges and agrees that it shall be permitted to advertise and sell the Goods online provided that:

8.1.1    all and any sales shall only be made to end customers who are trade only and have a pre-registered trade account with the Customer (“Trade Customers”);

8.1.2    pricing for the onward sale of the Goods shall only be visible to Trade Customers; and

8.1.3    where the website is accessible and visible to the world at large, the pricing should state to ‘call for further information/price’.

8.2       For the avoidance of doubt, the Customer shall not be permitted to sell the Goods to non-trade customers.

9 Intellectual Property Rights

9.1       All Intellectual Property Rights arising out of or in connection with the Goods shall belong to Ecostrad or its third party licensors (as the case may be).

9.2       No right or licence is granted to the Customer in respect of the Intellectual Property Rights of Ecostrad, except the right to use, or re sell the Goods in the Customer’s ordinary course of business.

10 Limitation of Liability

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

10.1.1  death or personal injury caused by negligence;

10.1.2  fraud or fraudulent misrepresentation;

10.1.3  breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

10.1.4  defective products under the Consumer Protection Act 1987.

10.2     Subject to clause 10.1, Ecostrad shall in no circumstances be liable for loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill and/or indirect or consequential loss.

10.3     Subject to clause 10.1, Ecostrad’s total liability to the Customer shall in no circumstances exceed:

10.3.1  the price paid for the relevant Goods, in respect of any liability relating to the Goods; or

10.3.2  an amount equal to the price paid by the Customer in relation to Orders placed in the 3 months prior to the claim arising, in respect of any other liability arising under the Contract.

10.4     This clause 10 shall survive termination of the Contract.

11 Termination

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

11.1.1  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 14 days of that party being notified in writing to do so;

11.1.2  the Customer fails to pay any amount due under the Contract on the due date for payment;

11.1.3  one or more of the following applies to the Customer: (a) it ceases to trade; (b) it is unable to pay its debts; or (c) it suffers an Insolvency Event; or

11.1.4  the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

11.2     For the purposes of clause 11.1.1, a material breach includes:

11.2.1  a breach of any of the obligations set out in clauses 8.1 and 8.2; or

11.2.2  a breach that has a serious effect on the benefit which Ecostrad would otherwise derive from the Contract.

11.3     Without limiting its other rights or remedies, Ecostrad may suspend supply of the Goods if the Customer becomes subject to any of the events listed in clause 11.1.3, or Ecostrad 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.

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

11.5     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.

11.6     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.

12 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 a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 120 days or more, the party not affected may terminate the Contract by giving not less than 7 days’ written notice to the affected party.

13 General

13.1     Assignment and other dealings. 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 Ecostrad’s prior written consent.

13.2     Confidentiality.

13.2.1  Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.2.

13.2.2  Each party may disclose the other party’s confidential information:

13.2.2.1           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 13.2; and

13.2.2.2           as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

13.2.3  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.

13.3     Entire Agreement. 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. 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 these Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract or these Conditions.

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

13.5     Waiver. No failure or delay by a party to exercise any right or remedy provided under these Conditions 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.

13.6     Severability. If any provision or part-provision of the Contract or these Conditions 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 or these Conditions. If any provision of the Contract or these Conditions is deemed deleted under this clause, 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.

13.7     Notices. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

13.7.1  delivered by hand or pre-paid first-class post or other next working day service at its registered office (if a company) or its principal place or business (in any other case); or

13.7.2  sent by email to the email address notified by each party in writing, or such other address as the parties may agree from time to time.

13.8     Any notice shall be deemed to have been received:

13.8.1  if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

13.8.2  if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and

13.8.3  if sent by email, at 9.00am on the next Business Day after transmission.

13.9     Third party rights. 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.

13.10   Governing law and jurisdiction. 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 English law. The parties agree that the English courts 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.