STANDARD TERMS AND CONDITIONS OF SUPPLY

 

 

 

The following Standard Terms and Conditions for Supply of Products and Services ("Terms and Conditions") shall govern all orders made by you (the “Customer”) for licences, purchases or delivery of, Products (as defined below) and Services (as defined below). TSL professional Products Ltd. (hereinafter ‘TSL’) shall not be bound by any terms additional to or different from those in these Terms and Conditions that may appear in any purchase order or in any other communication be it hard copy, electronic or verbal, unless TSL issues a specific amendment to these Terms and conditions as detailed in clause 26 of this document. All Quotations (as defined below) shall be deemed to incorporate and be governed by these Terms and Conditions. TSL’s acceptance of an order is subject to and conditional on Customer’s acceptance of these Terms and Conditions.

1 Definitions:

“Documentation” means any user manuals, reference manuals, installation, release, application or methodology notes, written utility programs and other materials in any form which are supplied by TSL for use in conjunction with Products together with such Updates thereto as TSL may from time deliver to the Customer.

1.2 “Error” means a defect that causes a Product not to perform substantially in accordance with the applicable specification set forth in the Documentation.

1.3 “Error Correction” means the use of reasonable commercial efforts to remedy an Error.

1.4 “Firmware” means the firmware embedded in or supplied with the Hardware for use in conjunction with the Hardware, together with such additional or replacement firmware as may from time to time be made available by TSL, or supplied by TSL in performance of warranty obligations or pursuant to a Support and Maintenance Agreement in the form of an Update, Error Correction or as part of a Workaround, including all copies made thereof.

1.5 “Warranty Period” means a period of 12 months from the date the Product(s) are delivered to the Customer.

1.6 “Hardware” means tangible, physical equipment directly involved in the performance of signal processing, communication, or other information technology functions made available from, or through, TSL, together with Updates thereto.

1.7 Quotation has the meaning set out in Clause 2.

1.8 “Product(s)” means, together, or individually, as the context may so require, the Hardware, Software, Firmware and Documentation purchased from TSL by Customer, including, in respect of the foregoing, (a) any Workarounds, Error Corrections and Updates as may from time to time be provided by TSL, as part of a purchased Support and Maintenance Service agreement.

1.9 “Software” means the object code version of the particular software programme identified in the applicable Quotation, together with such additional or replacement software as may from time to time be made available by TSL in performance of warranty obligations or pursuant to a Support and Maintenance Agreement in the form of an Update, Error Correction or as part of a Workaround, including all copies made thereof.

1.10 “Services” means the provision of support and maintenance and/or professional services in the use and operation of Hardware and Software, together with the provision of Corrections, Workarounds and Updates in relation thereto.

.11 “Service Level Agreement” means an Agreement for the provision of Support and Maintenance Services in respect of one or more Products.

1.12 “Update(s)” means improvements, enhancements or modifications to existing features and / or functionality of the Hardware, Software or Documentation which may include Error Corrections that TSL makes available to customers with a current Support and Maintenance Agreement for no additional licence fee.

1.13 “Workaround(s)” means a change in the procedures followed or data supplied by TSL to avoid an Error without substantially impairing use of the Hardware or Software.

2 Quotations: Only a written quotation of prices and terms for Products or Services executed by an authorised representative of TSL shall constitute a quotation hereunder (a "Quotation"). Services will be provided by TSL only if Customer has purchased Products pursuant to a Quotation and the applicable Quotation specifies such Services. Unless specified explicitly, Quotations shall be valid for a period of 30 days from the date of issue.

3 Orders and Acceptance of Orders: All orders must be made by Customer in writing and are subject to these Terms and Conditions and TSL’s acceptance. All payments made by Customer are non-refundable except as otherwise provided herein.

4 Prices: Unless otherwise specified in a valid Quotation, all prices for Products and Services shall be as specified in TSL’s current price list and shall be net shipping, insurance, handling and taxes unless specified. Discounts, if any, applicable to qualifying Products and Services shall be only as specified in a Quotation.

5 Terms of Payment: Unless otherwise specified in a Quotation or order, all amounts due for Products or Services must be prepaid before delivery. Any other payment terms offered by TSL are subject to Customer and TSL maintaining a mutually acceptable credit arrangement. TSL reserves the right to withdraw any credit advanced at any time. If Customer fails to pay the price or any other payment due hereunder when due, TSL may recover, in addition to the price or other payment, interest thereon at the rate of one and one half percent (1.5%) per month and reasonable legal fees for the collection of such amounts. If Customer fails to pay the price or any other amount due and payable hereunder, TSL shall cease to be obligated to provide warranty remedies hereunder.

6 Delivery: With the exception of quotations, orders and invoices in the USA clearly described as DDP (Duty, Delivery Paid), all Products will be shipped Ex Works (as defined in Incoterms 2000) from TSL's facility in Marlow, England. TSL will advise the Customer that the goods are ready for collection and the Customer must make arrangements to collect the goods from the TSL facility within five (5) days of the notice. If the goods are not collected within the five (5) day period TSL reserves the right to charge a storage fee to the customer equal to 3% of the value of the shipment per week of delay, rounded down to a complete week. If the Customer asks TSL to manage the delivery, TSL will obtain a quotation and obtain the agreement of the Customer before scheduling the shipment with the Customer selected carrier. The quotation will not include any taxes, customs duty or fuel surcharges that the carrier or importing authorities may impose and in all cases additional charges shall remain the responsibility of the Customer. TSL shall not be deemed thereby to assume any liability in connection with the shipment, nor shall the carrier be construed to be the agent of TSL. TSL will use reasonable efforts to ship as close to the estimated despatch as detailed in the order confirmation.

Shipment shortages must be reported to TSL in writing within five (5) working days of receipt by Customer. Delivery of Services shall be deemed to have taken place upon performance of such Services.

7 Taxes: All prices are exclusive of taxes (including without limitation any value added, use, sales, or similar tax). Customer shall pay all import duties, levies or other import charges, and all sales, use, value added, property or other taxes of any nature, assessed upon or with respect to any of the Products or Services, which are imposed by any nation or community of nations or any political subdivision of any nation, but excluding taxes based upon TSL's net income. Customer shall pay on or before their due dates all such taxes, fees, duties and charges which arise out of or in connection herewith.

If the Customer requests special documents, for instance but not limited to; Certificates of Origin, ATR customs documentation, Certificate of Conformity etc., TSL reserves the right to re-charge the costs of obtaining such documents to the Customer which may include an administration fee. The Customer will be advised of any additional costs and agreement secured in advance of any instructions being made.

Where the customer wishes to use a Letter of Credit (LOC) the costs associated with raising and administrating the LOC including Bank charges will be always be the responsibility of the Customer.

8 Software and Firmware Licences:

8.1 TSL hereby grants to Customer, and Customer hereby accepts, a non-exclusive, non-transferable, non-sublicensable licence to operate any Software or Firmware and use any related Documentation provided by TSL pursuant hereto solely for Customer’s own internal use. Customer’s licence rights are limited to those expressly granted by these Terms and Conditions and by the licence terms and conditions embedded on or supplied with the medium on which the Software or Firmware is supplied. TSL and its licensors reserve all other rights.

TSL, or its licensors, own all intellectual property rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software, Firmware and / or Documentation. Customer may not: (i) modify, adapt, decompile, disassemble, or reverse engineer the Software, Firmware, Updates or Documentation, (ii) create derivative works based on the Software Firmware, or Documentation; (iii) make unauthorized copies of the Software, Firmware, Updates and Documentation; (iv) allow any further disclosure, distribution or relocation (other than within the Customer), resale, lease, loan, rental, licence, or assignment of any type or nature or unauthorised third party use or access to the Software, Firmware, Updates or Documentation thereof without the prior written consent of TSL; (v) use the Software, Firmware or Documentation for the benefit of, or to support or provide services to any third party; (vi) disclose to any third party the results of any Software or Firmware performance benchmarks or any specific detailed comparisons between the Software or Firmware and any Customer or third-party product; (vii) to the fullest extent permitted by law, use any functionality of the Software, Firmware or any output generated by such functionality to augment or replace functionality in a third party product or as an add-in to any third party product without TSL’s prior written consent; or (viii) use the Software, Firmware or Documentation for any purpose that competes with the Product or to substantially duplicate its capabilities. For the avoidance of doubt, the Software, Firmware and Documentation are licensed and not sold.

8.2 All temporary and permanent Error Corrections, patches, Workarounds, releases, versions and Updates supplied by or on behalf of TSL in the provision of the Services provided under these Terms and Conditions are supplied to Customer subject to a non-exclusive, non-transferable, non-sublicensable licence to operate any such items and use any related documentation provided by TSL pursuant thereto solely for Customer’s own internal use in conjunction with the Product.

9 Confidentiality:

9.1 All information that is identified as constituting Confidential Information at the time of disclosure by means of a clearly obvious confidential stamp or legend or by means of a clear oral representation prior to an oral or visual disclosure. Information that is disclosed orally or visually or in writing without a confidential stamp or legend, shall constitute Confidential Information only if it would be reasonably apparent to a reasonable person that such information is of a confidential or proprietary nature. For purposes of clarification and not limitation, the following shall be deemed to constitute Confidential Information regardless of whether it is disclosed orally or visually or in writing without a mark, stamp or legend indicating that it is deemed to be Confidential Information: hardware, firmware and software in object and source code form, and any related technology, ideas, algorithms or information contained therein, and any trade secrets related to any of the foregoing; product plans, costs, prices, customer names, non-published financial information, marketing plans, business opportunities, personnel, research, development or know-how and these Terms and Conditions. In addition to the foregoing, information that is orally or visually or in writing without a confidential stamp or legend, shall constitute Confidential Information if TSL, within ten (10) days after such disclosure, delivers a written document or documents describing such information and referencing the place and date of such oral, visual or written disclosure.

9.2 As used herein, the term “Confidential Information” does not include any information which (i) is or becomes generally available to the public other than as a result of the commission of a breach of these Terms and Conditions, (ii) is known prior to disclosure or is hereafter furnished by a third party, as a matter of right and without restriction on disclosure; or (iii) is developed independently without use of, or reference to, any Confidential Information so long as a Customer claiming independent development can provide clear and convincing evidence of such independent development, (iv) is required to be disclosed pursuant to a judicial, administrative or governmental proceeding provided that TSL has been provided with a reasonable opportunity to seek an appropriate protective order or to waive the provisions of these Terms and Condition.

9.3 Customer agrees that it shall protect TSL’s Confidential Information from unauthorised disclosure and shall use the same degree of care that Customer uses to protect its own like information. Customer shall not disclose Confidential Information to third parties without the prior written consent of TSL. Nor shall Customer use TSL’s Confidential Information for purposes other than that which is necessary for Customer to use and operate the Product(s). Customer shall limit use of, and access to, the Product(s) and related Documentation to such of Customer’s employees and contractors as are directly involved in the operation and maintenance of the Products. All appropriate copyright and other proprietary notices and legends shall be retained on the Product and Customer shall maintain and reproduce such notices on all authorized copies of the Software and related Documentation. Customer shall hold the Product and related Documentation strictly confidential. Customer shall, by all appropriate means, prevent disclosure to, or display or use of, the Product and related Documentation by third parties and employees not authorised to use the Product.

10 Warranties:

10.1 TSL warrants that the Hardware shall be free from defects in workmanship for a period of twelve (12) months and that the Software shall perform substantially as described in the documentation furnished by TSL for a period of ninety (90) days. The warranty period starts when the Product is delivered. A warranty claim is only valid if the Customer notifies TSL or its authorised representative during the warranty period of any defect in the Product or substantial non-performance of the Software. Customer’s sole remedy under this warranty shall be, at TSL’s discretion, the repair or replacement of the non-conforming Software or defective Hardware. No Product shall be returned to TSL without TSL’s prior authorisation and with the relevant RMA number clearly marked. TSL reserves the right to use the services of third parties to perform any repairs or replacements of the non-performing Product. TSL does not warrant that the Products are free from defects or that all defects can be corrected. The warranty for any replacement or repaired Product shall expire at the end of the original warranty period, with the exception where a subsequent failure is attributed to a failed repair where an additional 12 months warranty from the date of the repair will apply. In the case where products are returned under warranty and at TSL expense and ‘no fault is found’ TSL reserves the right to charge any shipment costs to the Customer.

10.2 The foregoing warranty shall not apply, if (i) the Products have been tampered with by any unauthorised individual, or to the extent that any non-conformance or defect was caused by or attributable, whether in whole or in part, to: (a) any associated or complementary equipment or software not furnished by TSL, (b) modification, misuse, neglect or abuse of, or accident to, the Products, (c) exposure of the Products to conditions beyond the environmental, power or operating constraints specified by TSL, or (d) installation or wiring practices not in accordance with those recommended by TSL; or, (ii) Customer has either failed to comply with the provisions of Clause 8.

10.3 TSL warrants that all Services provided under these Terms and Conditions shall be performed in a professional and workmanlike manner.

10.4 No action arising out of these Terms and Conditions may be brought by either party more than one (1) year after the cause of action has accrued except that actions for non-payment.

11 Disclaimer: THE WARRANTIES IN CLAUSE 10 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTY WHATSOEVER IS MADE WITH RESPECT TO THE SERVICES.

TSL’S EXPRESS WARRANTY SHALL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF, TSL RENDERING TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE PRODUCTS.

12 Limitation of Liability:

12.1 UNDER NO CIRCUMSTANCES SHALL TSL'S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS, THE SERVICES, THESE TERMS AND CONDITIONS OR TSL'S PERFORMANCE OR ASSERTED FAILURE TO PERFORM HEREUNDER, IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE PURCHASE PRICE OF THE APPLICABLE PRODUCT OR SERVICE THAT GAVE RISE TO THE CLAIM.

NOTHING IN THESE TERMS AND CONDITIONS SHALL HOWEVER LIMIT OR EXCLUDE TSL’S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF TSL.

12.2 IN NO EVENT WILL TSL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR TORT DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS, SERVICES OR TSL'S PERFORMANCE OF ANY OF ITS OBLIGATIONS UNDER THESE TERMS AND CONDITIONS, WHETHER OR NOT TSL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.3 THE PROVISIONS OF THIS CLAUSE ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN TSL AND CUSTOMER. TSL’S PRICING OF PRODUCTS AND SERVICES REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

13 Intellectual Property Indemnity:

13.1 TSL shall defend or, at its option, settle, any claim, action or proceeding brought against Customer that any Product or Service infringes a trade mark, patent, copyright or trade secret or other intellectual property right, and shall indemnify and hold harmless Customer against all damages and costs finally awarded against Customer in any such action or proceeding, provided that Customer (a) promptly notifies TSL in writing of the claim, (b) gives TSL full authority, information and assistance to defend such claim and (c) gives TSL sole control of the defence of such claim and all negotiations for the compromise or settlement thereof. If a Product or any part thereof becomes, or in TSL's opinion is likely to become, the subject of a valid claim of infringement or the like under any trademark, patent, copyright or trade secret or other intellectual property right law, TSL shall have the right, at its option and expense, either to obtain for Customer a license permitting the continued use of the Product or such part, to replace or modify it so that it becomes non-infringing, or to grant Customer a credit for the then-value of the Product, as depreciated on a straight line basis over a three-year life and to terminate the license thereof, and Customer shall return such Product to TSL. TSL shall have no liability hereunder for any costs incurred or settlement entered into without its prior written consent. TSL shall have no liability hereunder with respect to any claim based upon (i) the combination of the Product with other products not furnished by TSL; (ii) any addition to or modification of the Products by any person or entity other than TSL; (iii) TSL furnishing to Customer any information, data, service or applications assistance, other than the Products and the printed manuals relating thereto; or (iv) use of a superseded or altered release of the Product.

13.2 THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF TSL AND ITS LICENSORS AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER PROPRIETARY RIGHTS INFRINGEMENT BY THE PRODUCTS, ANY SERVICE, ANY PART THEREOF OR THE USE THEREOF, AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND INDEMNITIES WITH RESPECT THERETO. NOTWITHSTANDING THE FOREGOING, ALL OPEN SOURCE SOFTWARE OR FREEWARE INCLUDED WITH THE SOFTWARE IS PROVIDED WITHOUT INDEMNIFICATION.

14 Proprietary Rights:

14.1 The Products and Services ordered or delivered pursuant to this Agreement are provided to Customer solely for Customer’s use and shall not be distributed or resold to third parties. Unless otherwise agreed in writing, any resale or redistribution of TSL Products by Customer shall be void. Customer shall not change, remove or obscure any labels, plates, insignia, lettering or other markings that are on the Products at the time of delivery.

14.2 The Products incorporate proprietary technology and trade secrets of TSL. All right, title and interest in and to the Products, other than that expressly granted to Customer herein, shall remain vested in TSL and its third party suppliers.

Customer shall not, and shall not permit others to, copy, translate, modify, create derivative works from, reverse engineer, disassemble, dissect or decompile the Products or Software, except as may be required by law. All appropriate copyright and other proprietary notices and legends shall be retained on all Products supplied by TSL, and Customer shall maintain and reproduce such notices on all authorized copies of the Software and related documentation.

14.3 Customer shall hold the Software and related Documentation strictly confidential. Customer shall limit use of, and access to, the Software and related documentation to such of Customer's employees and contractors as are directly involved in the operation and maintenance of the Products. Customer shall, by all appropriate means, prevent disclosure to, or display or use of the Software and related documentation by third parties and employees not authorised to use the Products hereunder. Customer shall enter into binding written agreements with employees and contractors to prevent unauthorized publication, disclosure or use of Software and related documentation. In the event that Customer is in default of its obligations under this Clause and TSL requests the return of Products and / or Software, Customer shall immediately discontinue use of and shall return to TSL the original and all copies of the Software, related documentation and the related Products.

15 End of Life Policy: Products have a finite production life span and the Customer acknowledges that insofar as any Product is or becomes the subject of an End of Life Announcement, with effect from the Last Time Buy Date determined by that End of Life Announcement, the Services provided under these Terms and Conditions shall not extend to Error Corrections, patches or Workarounds other than those which TSL, in its sole discretion, determines are necessary to deal with operability related issues affecting the Products.

17 Remote Systems Access Policy: TSL may require access to the Customer’s network to undertake remote fault testing and diagnosis and the ability of TSL to have such access is a pre-requisite to the delivery of the services supplied during the warranty period. If access is denied the Customer will be responsible for the costs of any necessary on-site remedial activity.

18 On-site support Offerings: Customer may request on-site support and training. Such services are provided by TSL for an additional charge (excluding expenses) that will be quoted to the Customer, with a PO issued by the Customer to be invoiced at the time of execution. On-site support visits are subject to engineer availability.

19 Exclusions from Services: The following are specifically excluded from the scope of Services to be provided:

19.1 Customer’s use of TSL Software versions that are no longer supported or which have entered TSL’s End of Life Programme and are beyond their allocated End of Support date;

19.2 Electrical work external to the Products;

19.3 Repair of damages, defects or malfunctions due to any cause external to the Product adversely affecting the Product’s operability or serviceability which shall include, but not be limited to, excess temperature, fire, flood, water, wind, lightning and transportation, or due to accident, abuse, neglect, misuse, tampering, or any act of God;

19.4 Repair of non-conforming or damaged Products caused by failure to provide a suitable installation environment including, but not limited to, the failure to provide adequate electrical power and properly use, manage and supervise the equipment in accordance with TSL’s specifications;

19.5 Repair of non-conforming or damaged Products caused by the use of the Products for purposes other than normal and intended use, from using accessories or supplies not approved by TSL, or from modification or replacement of any components on any boards supplied with the Products;

19.6 Furnishing software, supplies or accessories, painting or refinishing the machines or furnishing material therefore, making specification changes or performing services in connected with the relocation of the Products, or adding or removing approved accessories, attachments or other devices except as set forth herein; and

19.7 Defects or errors which would not have arisen had Customer taken the steps recommended by TSL personnel in the performance of either the Warranties listed in 10 above or any approved Maintenance Agreement.

Any Services provided as a result of any of the above may be invoiced to the Customer as an additional charge based on TSL’s then-current rates.

20 Access to Products: In cases where on-site assistance is required or requested by Customer, Customer shall provide the TSL personnel with full and free access to the Products and in a place, which conforms to the health and safety regulations of the country where the TSL personnel is to perform such Services. If persons other than TSL’s technical engineers repair, modify or attempt to perform Services on any Products covered by these Terms and Conditions, and as a result thereof, any Services by TSL are required to restore the Products to acceptable operating condition, such Services will be provided only at the applicable TSL rates and terms then in effect.

21 Engineering Changes:

20.1 Engineering changes determined applicable by TSL will be made available to Customer for Products covered by these Terms and Conditions. Customer may, by providing notice, elect to have only those changes mandated by TSL for safety purposes, such changes will be provided at no cost to Customer.

21.2 If Customer requests installation of engineering changes, including safety changes, at times other than during TSL’s normal working hours, TSL reserves the right to assess Customer an additional charge for such service at the applicable TSL rates and terms then in effect.

22 Default: TSL reserves the right to terminate or suspend Services in the event Customer is in default under these Terms and Conditions with TSL and such default is not corrected within five (5) business days after written notice. In addition, the contract formed between Customer and TSL on the basis of these Terms and Conditions, and all charges due thereunder will become immediately due and payable in the event that Customer makes an assignment for the benefit of creditors or a voluntary or involuntary petition is filed by or against Customer under any bankruptcy or insolvency laws.

23 Cancellation of Orders:

23.1 Regular, non-custom and non-special orders for Products accepted by TSL may be cancelled by Customer only upon written notice to TSL forty five (45) days before the Products are to be shipped. Such cancelled orders are subject to a forty percent (40%) cancellation fee. Custom and special orders accepted by TSL may not be cancelled unless otherwise agreed by TSL in writing.

23.2 TSL may cancel any accepted order and may delay or decline to make any further shipments in the event of (a) any non-payment or other default by Customer, (b) any conduct prohibited by Clause 14 of these Terms and Conditions, (c) bankruptcy or insolvency of Customer, or (d) any proceeding brought by or against Customer, voluntarily or involuntarily, under any provision of any bankruptcy or other insolvency law of any nation or community of nations and any political subdivision thereof.

24 Import and Export: Customer shall supply TSL with such documents, information and undertakings as may be required to enable TSL in a timely fashion to apply for export licenses or comply with import requirements, where necessary, or to apply for any authorisation required to allow TSL to deliver the products to the Customer. The Customer shall not export either directly or indirectly any Products, or any direct product thereof, without first obtaining express written authorisation from TSL.

25 Assignment: This Agreement, including these Terms and Conditions, shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Customer may not assign or transfer its rights or obligations hereunder without the prior written consent of TSL.

26 Agreement:

These Terms and Conditions, including Quotation(s) or accepted order(s), constitute the entire agreement between the parties with respect to the subject matter hereof and no addition to or modification of any provision hereof shall be binding upon TSL unless made in the form of a written Addendum to these Terms and Conditions, which Addendum is signed by an authorised officer of TSL. Without limiting the generality of the foregoing, TSL shall not be bound by any terms additional to or different from those in these Terms and Conditions, including pre-printed terms, that may appear in, or be referenced in, Customer’s purchase orders or any other communications irrespective of whether TSL (a) countersigns such purchase order or communication; or, (b) causes Product(s) to be delivered subsequent to receipt of such purchase order or communication. All Quotations shall be deemed to incorporate these Terms and Conditions and shall accordingly be governed by the provisions of these Terms and Conditions.

27 Severability: In the event that any term, clause or provision of these Terms and Conditions is construed to be or adjudged invalid, void or unenforceable, such term, clause or provision will be modified or severed in such manner as to cause these Terms and Conditions to be valid and enforceable while preserving to the maximum extent possible the terms, conditions and benefits of these Terms and Conditions, and the remaining terms, clauses and provisions will remain in full force and effect.

28 Notices: All notices or other communications required or permitted shall be in writing and shall be deemed duly served if sent by a recognised commercial courier or other express mail service, or by certified or registered mail, return receipt requested, first class postage prepaid, to TSL at the address stated on the face hereof and to the Customer at the address given in the Quotation or order signed by Customer, or to such other address as the parties may designate from time to time by giving notice as prescribed in this Clause. Any such notice shall be deemed to be served on the second business day after posting.

29 Governing Law: These Terms and Conditions shall be governed by, and construed and enforced in accordance with, the laws of England and Wales. No failure by TSL to enforce or take advantage of any of its rights shall constitute a waiver of TSL's right subsequently to enforce any of its rights. The Customer and TSL agree to submit to the exclusive jurisdiction of the English courts.

30 Property and Title:

30.1 No right, title or interest in or to the Products shall pass from TSL to the Customer unless and until all monies owed by the Customer to TSL for all Products ordered by the Customer have been paid in full. While TSL’s ownership continues the Customer shall keep such Products labelled as belonging to TSL and separate and identifiable from all other goods in its possession as bailee for TSL.

30.2 In the event of a failure by Customer to pay the purchase price in full TSL shall have the power to resell the Products and TSL and its agents and employees may forthwith enter any premises or land occupied or owned by the Customer and remove the Products. Risk of damage to or loss of the Products shall pass to the Customer when the Products are made available for collection by the Customer.

The Customer shall indemnify TSL against any loss or damage to the Products prior to the passing of title therein while in the Customer’s custody.

31 Force Majeure: Except for payment of funds, neither TSL nor Customer shall be liable for any failure or delay in performing its obligations hereunder during any period in which such performance is prevented or delayed by causes beyond its reasonable control, including without limitation, flood, war, embargo, strike or other labour dispute, riot or the intervention of any government authority. If any such contingency occurs, TSL may allocate production and deliveries among its customers.

32 No Third Party Beneficiaries: TSL and Customer agree that these Terms and Conditions are intended to govern the rights and obligations between TSL and Customer only and that there are no express or implied third party beneficiaries under these Terms and Conditions.