Vigilis Tree Shelters Ltd Terms & Conditions

The parties agree to the following terms and conditions:

“Seller” means Vigilis Tree Shelters Limited. “Buyer” means the person purchasing Goods from the Seller under the Contract. “Contract” means the contract between the Seller and the Buyer for the sale and purchase of Goods incorporating or in accordance with these General Sales Terms. “Goods” means the goods set out in the Order. “Order” means the Buyer’s written order for Goods.

Basis of Contract. These General Sales Terms apply to the Contract to the exclusion of any other terms that either party seeks to impose or incorporate or which may be implied. An Order constitutes an offer by the Buyer to purchase Goods in accordance with these General Sales Terms and shall only become binding on the parties once accepted by the Seller in writing. The Buyer shall ensure that the terms of the Order are complete and accurate.

Price. Unless otherwise agreed in writing by the Seller, the price of the Goods (the “Price”) shall be the Seller’s list price for the Goods prevailing on the date of delivery together with any value added tax or other tax thereon. The Seller may, by giving notice to the Buyer at any time, increase the Price to reflect any increase in the cost of the Goods, any request by the Buyer to change the delivery date, quantity or type of Goods ordered or the specification of the Goods or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.

The Seller may invoice the Buyer for the Goods on or at any time after delivery. The Buyer shall pay each invoice within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Seller from time to time and time of payment is of the essence. The Buyer shall pay all amounts due in full and cleared funds without any deduction or withholding and the Buyer shall not be entitled to assert any credit, set-off or counterclaim against the Seller. The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer. If the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment, the Seller shall be entitled to charge interest on the overdue amount at the rate of 5% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment, whether before or after judgment.

Delivery. Unless otherwise agreed in writing by the Seller, the Seller shall arrange delivery of the Goods to the Buyer at the Buyer’s cost. Delivery dates are approximate only and the time of delivery is not of the essence. If the Buyer fails to take delivery of the Goods on the scheduled delivery date, then delivery of the Goods shall be deemed to have been completed and the Seller shall store the Goods until delivery takes place and charge the Buyer for all related costs and expenses (including insurance). If the Buyer has not taken delivery of the Goods within 3 days after the scheduled delivery date, the Seller may resell or otherwise dispose of all or part of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the Price or charge the Buyer for any shortfall below the Price. The Seller may deliver the Goods by installments.

Risk/Title. Risk in the Goods shall pass to the Buyer on completion of delivery. Title to the Goods shall not pass to the Buyer until the Seller has received payment in full and cleared funds for the Goods and all other sums which are or become due to the Seller. Until title to the Goods has passed to the Buyer, the Buyer shall (a) hold the Goods on a fiduciary basis on behalf of the Seller; (b) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property; (c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (e) notify the Seller immediately if it becomes subject to any of the events listed in clause 11; and (f) give the Seller such information relating to the Goods as the Seller may require from time to time. The Buyer may, however, resell or use the Goods in the ordinary course of its business. If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 11, or the Seller reasonably believes that any such event might occur, then, without limiting any other right or remedy the Seller may have, the Seller may at any time require the Buyer to deliver up the Goods and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.

Warranty. The Seller warrants only that the Goods on delivery shall conform in all material respects with the data sheets published by the Seller from time to time. All other warranties, conditions or undertakings as to quality or description (howsoever made or implied) shall be excluded to the fullest extent permitted by law. The Seller is not liable for a breach of warranty or a defect in the Goods unless it is notified to the Seller within 14 days after the date of delivery or, if the defect would not be apparent on reasonable inspection, within one month after the date of delivery. In respect of any nonconforming or defective Goods, the Seller shall, at its election, repair the Goods or supply replacement Goods or grant to the Buyer a credit equal to the Price (in which event the Seller shall be deemed not to be in breach of the Contract or have any liability to the Buyer for the non-conforming or defective Goods); provided in each case that the Buyer, upon request, returns the relevant Goods (unaltered) to the Seller for inspection as soon as possible and at its own risk and expense.

The Seller shall not be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for (a) any loss of profit or indirect or consequential loss arising under or in connection with the Contract; or (b) for nonconforming or defective Goods if the Buyer makes any further use of such Goods after giving notice in accordance with clause 7 or the defect arises because of any act or omission by the Buyer (including any unauthorized alteration or repair of the Goods, a failure to follow oral or written instructions as to storage, installation, use and maintenance of the Goods (or good trade practice) or fair wear and tear, wilful damage, negligence or abnormal storage or working conditions) or the defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer. The Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the Price. Nothing in these General Sales Terms shall limit or exclude the Seller’s liability for fraud, death or personal injury caused by its negligence or any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.

The Buyer shall indemnify the Seller, its affiliates and its and their directors, officers, employees, agents and contractors in full against all claims, losses, liabilities, damages and expenses (including legal and other professional fees and expenses) arising as a result of or in connection with (a) the Buyer’s use of the Goods; or (b) any infringement or alleged infringement by the Buyer of any copyrights, patents, trade secrets or other intellectual property rights of third parties; or (c) the Buyer’s breach of the Contract.

Compliance with Laws. The Buyer represents and warrants that it shall at all times comply with all applicable laws, regulations, codes, rules, ordinances, judgments, orders and decrees including without limitation any anti-bribery and corruption laws. Upon request, the Buyer shall promptly provide the Seller with any and all information reasonably requested to confirm or in connection with such compliance.

Termination. The Seller shall be entitled, at any time by giving written notice to the Buyer and without prejudice to its other rights and remedies, to suspend any deliveries of Goods and/or terminate any Order and/or the Contract forthwith if: (a) the Buyer fails to pay to the Seller on the due date any amount payable under the Contract; (b) the Buyer commits a material breach of the Contract; (c) the Buyer or any of its affiliates becomes insolvent or bankrupt or enters into liquidation or any order, decision or proceeding to that effect is made, taken or commenced; (d) the Buyer or any of its affiliates makes an arrangement or composition with its creditors; (e) the Buyer or any of its affiliates has a liquidator, receiver, manager, administrator or administrative receiver or equivalent officer in any jurisdiction appointed in respect of its undertaking or any part thereof; (f) any event occurs or proceeding is taken with respect to the Buyer or any of its affiliates that has an effect equivalent or similar to any of the foregoing or the Seller believes that any of the foregoing might occur. Provisions of these General Sales Terms which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination. Upon termination for any reason, all amounts owing by the Buyer to the Seller, whether under the Contract or for any other reason, shall become immediately due and payable.

Confidentiality and IP. The Buyer shall keep in strict confidence all information (including without limitation all technical or commercial data, intellectual property, know-how, specifications, inventions, technology, processes or initiatives) disclosed by or relating to the Seller, its affiliates or their businesses or activities and of which the Buyer becomes aware (“Information”). The Buyer shall only use the Information in performing its obligations under the Contract and shall restrict disclosure of Information to those of its officers and employees as need to know the same for the purpose of performing its obligations under the Contract and it shall ensure that such officers and employees are subject to like obligations of confidentiality. Ownership of the Information shall remain vested in the Seller and the Buyer shall not use the Information in any way so as to gain commercial advantage over the Seller (including without limitation through abuse of the Seller’s intellectual property rights).

Force Majeure. Delay in performance or failure to perform hereunder shall be excused to the extent caused by circumstances beyond the reasonable control of the party claiming such excuse (including without limitation acts of God, lock-outs, strikes or other labour disputes, fire, explosion, flood, epidemic, machine breakdown, inability to obtain supplies, governmental actions or war). The party claiming such excuse shall give written notice to the other party as soon as reasonably practicable giving its best estimate of the expected period of delay.

Whole Agreement, No Amendment. The Contract constitutes the entire agreement between the parties relating to the subject matter thereof. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. No variation of the Contract or any Order shall be effective unless it is in writing and signed by or on behalf of the parties.

Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

Notices. Any notice or other communication given under or in connection with the Contract shall be in writing, addressed to that party at its registered office or principal place of business (or such other address as that party may nominate in writing in accordance with this clause) and shall be delivered personally, sent by pre-paid first-class post or fax.

Status. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. A person who is not a party to the Contract shall not have any rights under or in connection with it.

Assignment and Subcontracting. The Buyer shall not, without the prior written consent of the Seller, assign, transfer, charge or subcontract the Contract or any of its rights or obligations under the Contract or purport to do any of the same.

Severance. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.

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

The parties agree to the following terms and conditions:

Definitions. “Buyer” means Vigilis Tree Shelters Limited. “Seller” means the person supplying Goods or Services to the Buyer under the Contract. “Contract” means the contract between the Buyer and the Seller for the sale and purchase of Goods or Services incorporating or in accordance with these General Sales Terms. “Goods” and/or “Services” means the goods and/or services set out in the Order. “Order” means the Buyer’s written order for Goods or Services.

Basis of Contract. Subject to clause 24, these General Purchase Terms apply to the Contract to the exclusion of any other terms that either party seeks to impose or incorporate or which may be implied and the Seller waives any right which it otherwise might have to rely on any such terms. An Order constitutes an offer by the Buyer in accordance with these General Purchase Terms and shall only become binding on the parties once accepted by the Seller (whether expressly or impliedly by fulfilling the Order or commencing performance or otherwise).

Price. Unless otherwise agreed in writing by the Buyer, the price of the Goods or Services (the “Price”) shall be as stated in the Order and shall, unless otherwise agreed in writing by the Buyer, be inclusive of value added tax and all other charges. No variation in the price or extra charges shall be accepted by the Buyer.

Payment. The Seller may invoice the Buyer for the Goods on or at any time after delivery of the Goods or performance of the Services. Unless otherwise agreed in writing, the Buyer shall pay each invoice within 60 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Seller from time to time and time of payment is not of the essence. The Buyer may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Seller.

Delivery. Unless otherwise agreed in writing by the Buyer, the delivery of Goods or the performance of Services hereunder must be in strict conformity with the Order and time shall be of the essence as regards such delivery or performance.

Risk/Title. Risk in and title to the Goods shall pass to the Buyer on completion of delivery. All materials, equipment, tools, dies, moulds, drawings, specifications and data supplied by the Buyer to the Seller (and all copyright, design rights and any other forms of intellectual property rights therein) shall at all times be and remain the exclusive property of the Buyer and the Seller shall (a) hold the same in safe custody at its own risk; (b) maintain and keep the same in good condition until returned to the Buyer; (c) not use the same other than in fulfilling the Order or in accordance with the Buyer’s written instructions; and (d) return the same to the Buyer on request.

Warranty. The Seller represents and warrants that (a) any Goods will be transferred to the Buyer in terms of the Order with good and marketable title, free and clear of all liens and encumbrances; (b) any Goods will be of the best available design, be of the best quality, material and workmanship, be free of defects and without faults and conform in all respects with the Order and all applicable specifications and/or samples; and (c) any Services will be rendered to the highest standards of quality and workmanship, be rendered in accordance with generally accepted practices, involve no unreasonable risk of injury or damage, be free of defects and without faults and conform to all applicable specifications.

Indemnity. The Seller shall indemnify the Buyer, its affiliates and its and their directors, officers, employees, agents and contractors in full against all claims, losses, liabilities, damages and expenses (including legal and other professional fees and expenses) arising as a result of or in connection with (a) defective workmanship, quality or materials; (b) an infringement or alleged infringement of any copyrights, patents, trade secrets or other intellectual property rights caused by the manufacture, supply or use of the Goods or Services; and (c) the Seller’s negligence or breach of the Contract.

Insurance. The Seller shall at all material times and at its own cost have in place with insurers acceptable to the Buyer insurance to cover public and product liability in an amount per occurrence of at least £1,000,000 (or such higher amount as may be appropriate). Upon receipt of written request the Seller shall provide the Buyer with a relevant certificate of insurance and proof that all premiums have been paid.

Compliance with Laws. The Seller represents and warrants that it shall at all times comply with all applicable laws, regulations, codes, rules, ordinances, judgments, orders and decrees including without limitation those relating to customs, intellectual property, fair competition, employment, working conditions, environmental matters, health and safety, bribery and corruption and the manufacture, sale, use or registration of chemical substances (including without limitation the regulations for the registration, evaluation, authorisation and restriction of chemicals (REACH)).

Licenses, Consents, Permits. The Seller represents and warrants that it has obtained and maintains in full force and effect all licenses, consents, permits, approvals, authorizations and the like required lawfully to perform its obligations under the Contract.

Safety. If the Goods or the Services involve any risk of injury or death to persons or damage to property, the Seller shall provide the Buyer with a written description of the nature and extent of such risk and of any precautions which should be taken to minimize such risk.

Termination. The Buyer shall be entitled, at any time and without cause, to terminate the Order or any part thereof by giving written notice to the Seller. In such event all work on the Order shall be discontinued and the Buyer shall pay to the Seller, upon presentation of appropriate and satisfactory invoices, all reasonable costs actually incurred by the Seller prior to termination; provided that the Seller shall use all reasonable efforts to minimize wasted costs including without limitation by selling or making use of the Goods or Services or any part thereof. The Seller acknowledges that payment of the above costs shall constitute performance by the Buyer in full and the Buyer shall have no other liability to the Seller (including without limitation for loss of profits or consequential loss) as a result of any such termination. The Buyer shall also be entitled, at any time by giving written notice to the Seller and without prejudice to its other rights and remedies, to terminate any Order and/or the Contract forthwith if: (a) the Seller commits a material breach of the Contract; (b) the Seller or any of its affiliates becomes insolvent or bankrupt or enters into liquidation or any order, decision or proceeding to that effect is made, taken or commenced; (c) the Seller or any of its affiliates makes an arrangement or composition with its creditors; (d) the Seller or any of its affiliates has a receiver, manager, administrator or administrative receiver or equivalent officer in any jurisdiction appointed in respect of its undertaking or any part thereof; (e) any event occurs or proceeding is taken with respect to the Seller or any of its affiliates that has an effect equivalent or similar to any of the foregoing or the Buyer believes that any of the foregoing might occur. Provisions of these General Purchase Terms which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.

Remedies. Without prejudice to any other right or remedy which the Buyer may have, if the Seller breaches any express or implied warranty or any term or condition of the Contract, the Buyer shall be entitled (a) to rescind the Contract; (b) to reject the Goods or Services (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller; (c) at the Buyer’s option to give the Seller the opportunity at its expense either to remedy any defect in the Goods or Services or to supply replacement Goods or Services and carry out any other necessary work to ensure that the terms of the Contract are fulfilled; (d) to refuse to accept any further deliveries of the Goods; and/or (e) to carry out at the Seller’s expense any work necessary to make the Goods or Services comply with the Contract. The Buyer may, in any event, hold the Seller liable for all damages (and the Buyer’s defense costs and legal fees) as may have been suffered in consequence of the Seller’s breach or from the Seller’s negligence, strict liability or other fault.

Confidentiality and IP. The Buyer shall keep in strict confidence all information (including without limitation all technical or commercial data, intellectual property, know-how, specifications, inventions, technology, processes or initiatives) disclosed by or relating to the Seller, its affiliates or their businesses or activities and of which the Buyer becomes aware and, if the Contract involves creative or developmental tasks, created or generated by the Seller (“Information”). The Buyer shall only use the Information in performing its obligations under the Contract and shall restrict disclosure of Information to those of its officers and employees as need to know the same for the purpose of performing its obligations under the Contract and it shall ensure that such officers and employees are subject to like obligations of confidentiality. Ownership of the Information shall remain vested in the Seller and the Buyer shall not use the Information in any way so as to gain commercial advantage over the Seller (including without limitation through abuse of the Seller’s intellectual property rights).

Force Majeure. Delay in performance or failure to perform hereunder shall be excused to the extent caused by circumstances beyond the reasonable control of the party claiming such excuse (including without limitation acts of God, lock-outs, strikes or other labour disputes, fire, explosion, flood, epidemic, governmental actions or war); provided that such circumstances are not the result of that party’s failure to exercise due diligence. The party claiming such excuse shall give written notice to the other party as soon as reasonably practicable giving its best estimate of the expected period of delay.

Whole Agreement, No Amendment. The Contract (and, if applicable, the Vigilis Tree Shelters On-site Addendum to General Purchase Terms) constitutes the entire agreement between the parties relating to the subject matter thereof. No variation of the Contract or any Order shall be effective unless it is in writing and signed by or on behalf of the parties.

Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

Notices. Any notice or other communication given under or in connection with the Contract shall be in writing, addressed to that party at its registered office or principal place of business (or such other address as that party may nominate in writing in accordance with this clause) and shall be delivered personally, sent by pre-paid first-class post or fax.

Status. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. A person who is not a party to the Contract shall not have any rights under or in connection with it.

Assignment and Subcontracting. The Seller shall not, without the prior written consent of the Buyer, assign, transfer, charge or subcontract the Contract or any of its rights or obligations under the Contract or purport to do any of the same.

Severance. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected.

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

On-Site Addendum. If the Contract involves the performance of work on the Buyer’s premises, the Vigilis Tree Shelters On-site Addendum to General Purchase Terms shall apply and shall be deemed to be a part of the Contract and shall be incorporated herein by reference.