Terms and Conditions of Sale

1.1 The following Conditions of Sale shall apply to all contracts between TriMark Europe Ltd ("the Company") and the Customer and shall override any terms and conditions stipulated, incorporated or referred to by the Customer whether in the sale, order or in any negotiations and these Terms and Conditions shall be binding upon the Company and the Customer.

1.2 If the Terms and conditions of the Customer are in any way inconsistent with these conditions, the Customers acceptance of any of the goods or the giving by the Customer of any delivery instructions shall constitute unqualified acceptance by a Customer of these conditions.

2.1 "the Company" means TriMark Europe Limited.

2.2 "the Customer" means the person firm or corporation with whom the Company contracts for the sale of Goods upon the terms of these Conditions.

2.3 "the Contract" means the contract for the sale of the Goods by the Company to the Customer incorporating these Conditions arising from the Company's acceptance of the Customers Order.

2.4 "working day" means the day of the week except a day which is a Saturday, a Sunday or a bank, public or statutory holiday.

2.5 "Goods" means the articles or services as detailed within the Contract.

3.1 All prices are exclusive of Value Added Tax, which will be charged at the rate applicable.

3.2 The Company shall be entitled to adjust the Price before or after the Contract is entered into to reflect the additional cost to the Company of supplying the Products caused by any reason beyond the control of the Company including (without limitation) changes in exchange rates or the action of any government or authority or increases in labour, raw materials, production, transport and insurance costs.

3.3 In the case of Goods to be delivered unless expressly stated to the contrary the price excludes carriage to that destination. Cases and other packing materials are used in the delivery of the Goods to the Customer will be charged for.

4.1 Unless otherwise expressly stated in writing, all quotations and estimates issued by the Company are invitations to treat. Quotations shall only be available for acceptance for a maximum period of 30 days from the date thereof and may be withdrawn or altered by the Company within such period at any time without notice. No contract shall be made by the acceptance by the Customer of any quotation made by the Company.

4.2 The Company shall notify Customers of its acceptance of an order placed by a Customer by forwarding to such Customer an Order Acknowledgement, Advice Note or other appropriate confirmation whereupon the contract between the Company and the Customer shall be deemed to be made.

4.3 Any quotation is made on the basis that orders will be placed by Customers in the quantities therein stated. Should a Customer place an order for part quantities only, the Company reserves the right to submit a revised quotation.

5.1 Title to and property in the Goods shall remain vested in the Company (notwithstanding their delivery and the passing of the risk therein to the Customer) until

(a) the price of the Goods; and

(b) all other money due from the Customer to the Company on any other account or pursuant to any other contract has been paid discharged or satisfied in full

5.2 Until the title to and property in the Goods pass to the Customer the following provisions shall apply:

5.2.1 the Company may at any time without prior notice to the Customer repossess and resell the Goods if any of the events specified in Condition 13 occurs or if any sum due from the Customer to the Company under the Contract or on any other account or pursuant to any other contract is not paid on the due date for payments. For the purpose of exercising its right under this subparagraph the Company, its employees or agents together with any vehicles considered by the Company to be necessary shall be entitled at any time without prior notice to the Customer to free and unrestricted entry upon and access to the Customer's premises and/or other location where any of the Goods are situated.

5.2.2 The Customer shall store the Goods in a proper manner in conditions, which adequately protect and preserve them without charge to the Company and ensure that are clearly identified as belonging to the Company. The Company shall be entitled to examine the Goods in storage at any time during normal business hours and upon giving the Customer reasonable notice of its intention to do so and to enter upon any premises owned or occupied or access to which are controlled by the Customer for that purpose.

5.2.3 The rights and remedies conferred upon the Company by this Condition 5 are in addition to and shall not in any way prejudice, limit or restrict any other rights or remedies of the Company under the Contract.

6.1 If the Company arranges delivery, the goods shall be at the Customers risk immediately on delivery to the Customers premises or any other delivery point indicated in the Contract.

6.2 If the Customer arranges the carriage of the goods, the goods shall be at the Customers risk immediately on delivery to the carrier or, if earlier, as from notification to the Customer that the goods are ready for despatch and the Customer must insure the Goods accordingly.

8.1 Any figures or statements in the Contract or in any other document supplied by the Company as to the performance or capacity of the Goods are upon the assumption that they will be used in conditions suitable for their proper and effective operation and are only approximate.

8.2 If in the Contract the Company expressly guarantees the accuracy of such figures or statements then, in the event of the Goods after commissioning failing to achieve them, the Company shall be entitled to a reasonable period and to reasonable facilities to enable it to bring the Goods up to the guaranteed figures or statements and the contractual time for delivery of the Goods shall be extended for such reasonable period. If by the Contract the Company undertakes only that the Goods will comply with such figures or statements subject to such margin or tolerance then, in the event of the Goods after commissioning failing to achieve and comply with such undertaking the Company shall be entitled to a reasonable period and reasonable facilities to bring the Goods up to such figures or Statements subject to such margin or tolerance, and the contractual time for delivery of the Goods shall be extended for such reasonable period.

8.3 Subject to the provisions of (a) and (b) above, all weights, dimensions and other figures or statements as to performance or capacity contained in the Contract or in any other document supplied by the Company before or after the Contract shall be approximate only.

8.4 The description and illustrations contained in the Company's catalogues, price lists and other advertising matter are intended merely to present a general idea of the goods described therein and none of them shall form part of the Contract.

9.1 If the Goods are to be supplied entirely in accordance with designs, drawings, specifications and other data supplied by the Customer and provided that the Goods are so supplied the Company shall not be liable to the Customer in contract or in tort (including breach of statutory duty) for any loss or damage the Customer may suffer because the Goods subsequently prove to be unsuitable for the purpose or purposes for which the Customer required them to prove not to be merchantable quality within the meaning of the Sale of Goods Act 1979.

9.2 Where the Goods supplied or any part thereof are not of the Company's own manufacture the guarantee below shall not apply but the Company will use all reasonable endeavours to pass on to the Customer the benefit of any guarantee or warranty given by the supplier of such Goods to the Company.

9.3 Subject to 9.1 above and to the provisions of Condition 8 if the Customer establishes to the reasonable satisfaction of the Company that:

9.3.1 There is a defect in the materials or workmanship of the Goods

9.3.2 There is a failure on the part of the Company to supply the Goods in accordance with the designs, drawings, specifications or other data supplied by the Customer;

9.3.3 There is some other failure on the part of the Company in relation to the Goods to conform with the Contract, then the Company shall at its option either:-

(a) replace the Goods with goods which in all respects are in accordance with the Contract; or

(b) repair or make good such defect or failure free of charge (including all costs of transportation of the Goods to and from the parties for that purpose) to the Customer, subject in every case to the remaining provisions of this Condition

9.4 Paragraph 9.2 of this Condition ("the Guarantee") shall not apply:-

9.4.1 Unless the Customer notifies the Company in writing of the alleged defect or failure immediately upon its first becoming aware, thereof and in any event within 6 months of the date upon which the risk in the Goods passed to the Customer under the provision of Condition 6.

9.4.2 Unless the Customer as soon as reasonably practical after first becoming aware of the alleged defect or failure returns the Goods in each case where it is practicable to do so to the Company, carriage paid, for inspection examination and testing and in any other case permits the Company to have access to the Goods at the Customer's premises for such purposes;

9.4.3 If the alleged defect or failure is caused by other parts of any component or assembly into which the Goods are incorporated by the Customer.

9.5 If the Company elects to replace the Goods it shall at its own expense deliver the replacement goods to the Customer at the address at which the defective goods were located and the title to the defective goods shall (if it has vested in the Customer) re-vest in the Company and the Customer shall make any such arrangements as may be necessary for the purpose of delivering up the defective goods to the Company. If the Company elects to repair or make good the Goods and such work is to be carried out at the Customer's premises the Customer shall permit the Company to have such access to the Goods on such premises as the Company may require for that purpose.

9.6 The Guarantee is in substitution for any other legal remedy of the Customer in respect of the alleged defect or failure and the liability of the Company shall in all such cases and for all such purposes be limited to the obligation imposed by the Guarantee. Any other condition warranty representation or undertaking on the part of the Company as to the quality of the Goods or their fitness or suitability for any purpose however and whenever expressed or which may be implied by statute custom of the trade or otherwise is hereby excluded and the provisions of Sections 13 to 15 inclusive of the Sale of Goods Act 1979 shall not apply to the Contract except where the Customer deals as consumer within Section 12 of the Unfair Contract Terms Act 1977. Except as and to the extent provided by the Guarantee the Company shall not be liable to the Customer in contract or in tort (including breach of statutory duty) for any loss or damage direct, indirect or consequential (including economic loss of any kind) which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by the Company, its employees or agents.

9.7 Nothing contained in this Condition shall operate so as;

9.7.1 to exclude the liability of the Company for death or personal injury resulting from the negligence of the Company its employees or agents;

9.7.2 to exclude the conditions and warranties implied by Section 12 of the Sale of Goods Act 1979.

9.7.3 To impose on the Company any liability in respect of any representation suggestion or comment with regard to the Goods made by the Company its employees or agents in the course of any negotiations between the Company and Customer leading to the making of the Contract unless in the case of any such representation the Company has expressly agreed in writing that it shall be a term of the Contract.

10.1 Dates of period for delivery are approximate. If having used its reasonable endeavours to comply with any date or dates specified in the Contract for the despatch or delivery of the Goods to the Customer the Company is unable to do so such failure shall not constitute a breach of contract by the Company entitling the Customer to terminate the Contract and/or to claim damages against the Company and the Company shall be entitled to an extension of the time fixed for delivery which is reasonable in all circumstances.

10.2 If the Company so agrees the Customer may collect the Goods in which case the Customer shall collect them within 3 days of being notified that they are ready for collection failing which the Company may despatch the Goods at the Customer's risk and expense or store them in which event the Customer shall pay the Company reasonable storage charges and the Goods shall be stored at the Customer's risk. If the Customer requests the Company to delay despatch of the Goods and the Company agrees to do so the Customer shall pay the Company's reasonable storage charges and the Goods shall be stored at the Customer's risk as from the date upon which the Goods are ready for despatch.

11.1 The Customer shall be solely responsible for the accuracy of its designs, drawings, specifications and other data (if any) supplied to the Company by the Customer its employees or agents and in conformity with which the Company is to supply the Goods notwithstanding that the Company may have examined, inspected, studied or commented to the Customer upon any such designs, drawings, specifications or other data.

11.2 The Customer shall indemnify the Company against all actions proceedings claims costs and expenses which may be brought against or incurred by the Company by reasons of its supplying the Goods in accordance with such designs drawings specifications and other data whether or not it is alleged in such actions proceedings and claims that any patent trade mark design copyright design right confidential information or other intellectual property or other exclusive right of any third party has been infringed.

12.1 If any of the following events occurs or in the opinion of the Company is reasonably likely to occur:-

(a) the Customer commits any breach of Contract; or

(b) any distress or execution is levied upon any of the goods or property of the Customer and is not paid out within 7 days; or

(c) the Customer (or where the Customer is a partnership any partner thereof) offers to make any arrangements with or for the benefits of its or his creditors generally or a petition is presented to make the Customer or any such partner bankrupt; or

(d) the Customer (being a limited company) has an Administrative Receiver or a receiver and Manager appointed of the whole or any part of its undertaking property or assets or a petition is presented or an order is made or resolution is passed for the winding up of the Customer or for the appointment of an Administrator thereof the Company may without prejudice to any other rights or remedies it may have against the Customer forthwith suspend further performance of the Contract or by notice in writing to the Customer terminate the Contract as it thinks fit

12.2 Not withstanding any such suspension or termination, the Customer shall pay the Company in accordance with the Contract for all Goods despatched by the Company prior thereto and shall indemnify the Company against any loss liability or expense incurred by the Company in connection with the Contract including (without prejudice to the generality of the foregoing) loss of profit, liabilities and expenses in connection with the materials and tooling obtained or produced for the purposes of the Contract and the cost of labour and overhead expenses reasonably attributable to the Contract.

13.1 If the Company is delayed or prevented from performing the Contract or any part thereof by circumstances beyond its reasonable control including (but without limiting the generality of the foregoing) strikes, lockouts, or other industrial action, inability to obtain materials or labour, power or machinery breakdown or failure, fire, flood, civil commotion or any cause of whatever kind and whenever occurring, then the Company may suspend further performance of the Contract for so long as it is so delayed or prevented and such suspension shall not constitute a breach of the Contract on the part of the Company. The Company shall notify the Customer in writing of any such suspension of performance of the Contract and if such suspension continues for more than 12 weeks either the Company or the Customer may by notice in writing to other terminate the Contract but without prejudice to the Company's right to be paid in accordance with the Contract for any part of the Goods which may have been despatched to the Customer prior to the suspension of performance by the Company and to be reimbursed all other costs, charge and expenses incurred by the Company pursuant to the Contract to the date of such notice of termination where it is given by the Company and up to the date of receipt thereof by the Company where it is given by the Customer.

14.1 Without prejudice to Clause 8 hereof, and to any other remedies of the Company, the Company shall in respect of all unpaid debts due from the Customer have a general lien on all goods and property of the Customer in its possession and shall be entitled on the expiration of 14 days notice to the Customer to dispose of such goods and property as it thinks fit and to apply any proceeds towards reduction of such debts.

15.1 The Customer shall not be entitled to cancel an order which has been accepted by the Company except upon terms which reimburse the Company for its loss of profits and all costs charges and expenses (including costs of tooling and purchase of materials) incurred by the Company in respect of the order up to the date of receipt by the Company of written notification of cancellation by the Customer.

16.1 Unless the Customer has a credit account with the Company the Contract price for the Goods shall be payable with the Customer's order or against a pro-forma invoice.

16.2 Where the Customer has a credit account with the Company, payment for the Goods shall be made not later than the 30th day of the month following the month in which the Company issued its invoice in respect of the sale of the Goods to the Customer unless the Company has agreed in writing to extend additional credit to the Customer. The time stipulated for payment shall be of the essence of the Contract and failure to pay within the period specified shall entitle the Company on the expiration of 7 (seven) days notice in writing to the Customer to suspend further performance of the Contract pending payment and in addition the Company shall be entitled without liability wholly or partly to cancel the Contract or any other contract between the Company and the Customer without prejudice to any other remedy available to the Company.

16.3 Customers wishing to open a credit account with the Company must furnish credit references which unless otherwise stated shall be one bank reference and two trade references.

16.4 Where Goods are delivered by instalments, the Customer shall pay for each instalment in accordance with the terms of this Condition.

16.5 Unless otherwise agreed in writing, the Customer shall not be entitled to set off against any monies due to the Company under the Contract, any amount claimed by or due to the Customer from the Company whether pursuant to the Contract or on any other account whatsoever.

16.6 The Company shall be entitled to interest (as well as before as after any judgement) on any part of the price not paid by its due date from that date until actual payment at the rate of 4% per annum above Barclays Bank plc's base lending rate prevailing from time to time during such period.

16.7 The Company, may by notice in writing to the Customer, declare all other sums owing by the Customer to the Company (whether under the Contract or any other contracts or on any other account) which at the date of the notice are not immediately due and payable to be immediately due and payable and the Customer shall pay the same to the Company accordingly.

17.1 The rights and remedies of the Company in respect of the Contract or in respect of any failure by the Customer to observe or comply with terms thereof shall not be diminished waived or extinguished by the granting or any indulgence, forbearance or extension of time by the Company nor by any failure of or delay by the Company in asserting or exercising any such rights or remedies.

18.1 The Contract shall be governed by and construed in all respects in accordance with English Law and the Company and the Customer submit themselves to the exclusive jurisdiction of the English Courts.

19.1 The headings to these Conditions are inserted for ease of reference and shall not affect their construction.

20.1 A Certificate of Conformance is required with every delivery.

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TriMark proprietary products are warranted against defects in workmanship for a period 12 months following the date of delivery to TriMark’s customer. Where TriMark does not have design control with regard to customer supplied products, materials or specifications, the warranty is limited to non-conforming product.

This warranty is expressly limited to persons who purchase TriMark’s products for the purpose of resale or use in the ordinary course of the buyer’s business. This warranty does not cover any product that (1) exceeds published engineering specifications; (2) has been abused, misused, - disassembled, altered, or improperly installed; (3) is used in an application not previously approved by TriMark; (4) is used in a manner inconsistent with any instructions regarding its use; (5) or is destroyed/damaged by fire, lightning or an act of God.

This warranty is exclusive, and TriMark makes no other warranty of any kind whatsoever, expressed or implied, with respect to the products manufactured and sold by it, whether as to merchantable quality, fitness for a particular purpose or any other matter. Without prior written authorisation from the Board of Directors, no agent, employee or representative of TriMark has any authority to bind TriMark to any affirmation, representation or warranty concerning TriMark products or parts, except as stated herein.

If any product supplied by TriMark is found to be defective by TriMark in its sole discretion, TriMark reserves the right to replace, rework, repair, or give credit for defective product. TriMark will replace such defective product exclusive of any labour, shipping, transportation or delivery cost associated with the replacement. TriMark will not be responsible for the cost of removal of a defective product. This remedy shall be the exclusive remedy available for any defects in the products manufactured and sold by TriMark or for damages resulting from any other cause whatsoever, including without limitation, TriMark's negligence. TriMark shall not in any event be liable to any buyer for consequential or incidental damages of any kind, whether for defective or non-conforming goods, negligence, on the basis of strict liability or for any other reason. The purpose of this exclusive remedy shall be to provide the buyer with replacement of products or parts sold by TriMark found to be defective in workmanship or negligently manufactured. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as TriMark is willing and able to replace said defective products or parts in the prescribed manner.

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