GENERAL CONDITIONS OF SALE

GATE AUTOMATION DIRECT LTD (“THE SELLER”)

The Buyer’s attention is drawn in particular to the provisions of clause 1 INTERPRETATION

1.1 Definitions. In these Conditions, the following definitions apply:                                                                     

Additional Charges:

any additional charges arising under the Contract payable by the Buyer in addition to the price for the Goods and “Additional Charge” shall mean any one of the Additional Charges

Buyer:

the person firm or company who buys or agrees to buy the Goods from the Seller.

Conditions:

these terms and conditions of sale.

Contract:

the contract between the Seller and the Buyer for the sale and purchase of Goods in accordance with these Conditions.

Delivery Date:

the date specified by the Seller when the Goods are to be delivered or other such date as may be agreed by the parties in writing;

Delivery Location:

the location set out in the Order or such other location as the parties may agree in writing, or where no such location is specified, the Buyer’s premises detailed on the quotation given by the Seller to the Buyer in respect of the Goods.

Goods

all goods (or any part thereof) set out in the Order.

Group:

in relation to a company, that company, any subsidiary or holding company (as defined in section 1159 of the Companies Act 2006) of that company, and any subsidiary of a holding company of that company.

Order:                            

The Buyer’s order for the Goods, as set out in the Buyer’s purchase order form, the Buyer’s written acceptance of the Seller’s quotation, or overleaf, as the case may be.

Seller:    

GATE AUTOMATION DIRECT LTD, registered in England and Wales with company number 10350650, whose registered office is 2 Old Plough Close Weston on Trent Derby DE72 2BS.

Wasted Time Rate:      

the charge for wasted time at the Seller’s standard rate for wasted time of £1 (one pound) per minute up to and including 30 (thirty) minutes and thereafter at a charge of £2 (two pounds) per minute, or such other charge as notified to the Buyer from time to time.

1.2 Construction. In these Conditions, the following rules apply: (a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its personal representatives, successors or permitted assigns.

(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

(e) A reference to writing or written includes faxes and e-mails.

2. BASIS OF CONTRACT

2.1 These Conditions shall apply to the sale by the Seller of all Goods purchased by the Buyer and these Conditions shall govern the Contract to the exclusion of any other terms and conditions introduced or submitted by the Buyer.

2.2 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable specification of the Goods are complete and accurate.

2.3 The Order shall only be deemed to be accepted when the Seller acknowledges the Order in writing and not before, at which point the Contract shall come into existence.

2.4 Any tenders or quotations will not constitute an offer. Any tenders or quotations submitted to the Buyer shall remain valid for the period stated therein, but if no period is specified such tenders and quotations shall be valid for 30 days from the date thereof. All tenders and quotations shall be subject to these Conditions.

2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, pricelist, acceptance of offer, invoice or other documentation or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

2.6 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by an authorised director of the Seller in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on any such representations which are not so confirmed, save that nothing in these Conditions shall exclude the Sellers liability for fraudulent misrepresentation.

2.7 No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

3. GOODS

3.1 The Goods are described in the Seller’s catalogue as modified by any applicable specification. 3.2 Unless the Seller agrees otherwise, only the specifications referred to in the quotation shall form part of the Contract.

3.3 The Seller reserves the right subject to giving prior written notice to the Buyer to modify the said specifications where the Goods cannot in the opinion of the Seller be manufactured according to the said specifications and the Buyer agrees to accept the Goods as manufactured according to the specifications so modified in satisfaction of the Seller’s obligations as to manufacture of the Goods under the Contract.

3.4 To the extent that the Goods are to be manufactured in accordance with a specification supplied by the Buyer, the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Seller’s use of such specification. This clause 3.2 shall survive termination of the Contract.

3.5 The Seller reserves the right to make any changes to the Goods:

(a) which are required so that the Goods conform with any applicable statutory or EU requirement; or

(b) where such changes to the Goods do not materially affect the quality or performance of the Goods.

4. SAFETY

4.1 Any Goods supplied by the Seller shall be handled correctly by the Buyer and in accordance with any of the Seller’s instructions as notified to the Buyer from time to time. The Buyer must ensure that all appropriate

5. DELIVERY

5.1 Unless otherwise agreed by the Seller in writing, the Seller will deliver the Goods to the Delivery Location.

5.2 The Seller will reasonably endeavour to deliver the Goods on the Delivery Date, but the time of delivery or performance shall not be of the essence. The Seller shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

5.3 If the Seller fails to deliver the Goods (or any instalment thereof) the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the Price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, the Buyer’s fault, or the Buyer’s failure to provide the Seller with adequate instructions in relation to delivery or otherwise.

5.4 The Buyer shall provide the Seller with clear delivery instructions and accept delivery on the Delivery Date and at the Delivery Location. Upon delivery the Buyer shall sign a delivery note which will be conclusive evidence that delivery of the Goods has been made.

5.5 Unless the Seller agrees otherwise in writing, the Seller shall unload the Goods. The Buyer shall ensure that at least one representative is available to assist the Seller during the unloading of the Goods. Other than by reason of the Seller’s fault, the Buyer shall be charged, as an Additional Charge, for wasted time at the Wasted Time Rate and any other expenses incurred by the Seller for:

(a) any delay caused by the Buyer’s inability or unwillingness to accept delivery of, or to collect, the Goods; and/or

(b) each repeat delivery where the Seller or Seller’s carrier leaves the Delivery Location and subsequently returns to the Delivery Location with the Goods.

 5.6 If the Buyer fails to accept delivery of the Goods within three Business Days of the Seller notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with its obligations under the Contract:

(a) delivery of the Goods shall be deemed to have been completed at 9.00am on the third working day after the day on which the Seller notified the Buyer that the Goods were ready; and

(b) the Seller will store the Goods until delivery takes place and charge the Buyer for all related costs and expenses (including insurance).

5.7 If the Buyer has not accepted delivery of the Goods within 10 working days from day after the Seller notified the Buyer that the Goods were ready for delivery, the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.

5.8 The Seller shall have the right to deliver any Goods ordered in instalments. Failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of the Goods delivered in any one or more instalments shall not entitle the Buyer either to treat the Contract as a whole as repudiated or to reject or refuse to take delivery of any of the Goods delivered in any other instalment.

6. RISK AND TITLE

6.1 Risk in the Goods shall pass to the Buyer at the time of delivery, or if the Buyer wrongfully fails to takedelivery, the time when delivery is deemed to have taken place in accordance with clause 5.6(a).

 6.2 Title to the Goods shall not pass to the Buyer until the earlier of: the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums;

6.3 Until title to the Goods has passed to the Buyer, the Buyer shall:

(a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;

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

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

(d) notify the Seller immediately if it becomes subject to any of the events listed in clause 13.1;

(e) give the Seller such information relating to the Goods as the Seller may require from time to time; and (f) not pledge or in any way charge by way of security for any indebtedness any of the Goods.

6.4 Subject to clause 6.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Buyer resells the Goods before that time:

(a) it does so as principal and not as the Seller’s agent; an

(b) title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.

6.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 13.1, then, without limiting any other right or remedy the Seller may have:

(a) the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and

(b) the Seller may at any time:

(I) require the Buyer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and

(ii) 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.

7. PRICE

7.1 The price for the Goods shall be the price specified by the Seller in the quotation or, if no price is quoted, the price set out in the Seller’s published price list in force as at the date of delivery.

7.2 Unless otherwise agreed in writing, the price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer as an Additional Charge.

7.3 The price of the Goods and any Additional Charges are exclusive of amounts in respect of value added tax (VAT). The Buyer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

7.4 The Seller may, by giving notice to the Buyer 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:

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

(b) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or safety precautions are taken and that its staff is aware of and comply with all storage and usage instructions.

(c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions

8. PAYMENT

8.1 The Seller shall be entitled to invoice the Buyer for price of the Goods and any Additional Charges on or at any time before dispatch of the Goods or any instalment thereof. In the event that any Additional Charges arise following the issue by the Seller of the invoice, the Seller shall be entitled to invoice the Buyer as and when the Additional Charges arise.

8.2 Unless otherwise agreed in writing, the Buyer shall pay the invoice in full at time of order, or on day of installation and in cleared funds, the Company will no longer take Cheque of any type,

Payment shall be made to the bank account nominated in writing by the Seller.

8.3 The Buyer shall make payment for the price of the Goods in Sterling unless agreed otherwise in writing. Any payment received by the Seller in any other currency will not be deemed to be payment for the Goods in question.

8.4 If the Buyer fails to make payment due to the Seller under the Contract by the due date for payment then, without prejudice to any other right or remedy available to the Seller: Title to the Goods shall not pass to the Buyer until Payment is received in full

(a) all invoices issued to the Buyer by the Seller in respect of any Goods sold or supplied pursuant to the Contract or any goods sold or supplied pursuant to any other contract shall immediately fall due for payment;

(b) any credit, settlement terms, supply of goods or discount rates offered or extended by the Seller to the Buyer in respect of the same shall be cancelled immediately;

(c) the Buyer shall pay interest on the overdue amount at the rate of 10% per annum above Seller’s bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount; and

(d) the Seller shall be entitled to suspend any further deliveries of any Goods or goods agreed to be sold by the Seller to the Buyer or any instalment thereof (being the subject of the Contract or any other contract).

(e) If the Buyer falls to pay on time the seller reserves the right to remove all unpaid for goods from site at any time,

8.5 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). 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 against any amount payable by the Seller to the Buyer.

9. WARRANTY

9.1 The Seller warrants that:

(a) the Goods will correspond with the Seller’s specification for them on delivery;

(b) the Goods (except those wear items that are listed in the Seller’s guide entitled “Operations Guide Relating to the Goods” as notified to the Buyer and as amended from time to time) manufactured by the Seller or its Group, will be free from material defects for 3 years from the Delivery Date; and

(c) where the seller is supplying goods from other manufacturers; their standard recommended warranty will apply.

9.2 Subject to clause 9.3, if:

(a) the Buyer gives notice in writing to the Seller immediately on discovery but in any event within 14 days of discovery that some or all of the Goods do not comply with the warranty set out in clause 9.1;

(b) the Seller is given a reasonable opportunity of examining such Goods; and

(c) the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the

Buyer’s cost, the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

9.3 The Seller shall not be liable for Goods’ failure to comply with the warranty set out in clause 9.1 in any of the following events:

(a) the Buyer makes any further use of such Goods after giving notice in accordance with clause 9.2;

(b) the defect arises because the Buyer failed to follow the Seller’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;

(c) the defect arises as a result of the Seller following any drawing, design or Specification supplied by the Buyer;

(d) the Buyer alters or repairs such Goods without the written consent of the Seller;

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

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

9.4 Except as provided in this clause 9, the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 9.

9.5 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.

9.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.

10. LIABILITY

10.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b) fraud or fraudulent misrepresentation;

(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;

(d) defective products under the Consumer Protection Act 1987; or

(e) any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.

10.2 Subject to clause 10.1:

(a) the Seller shall under no circumstances whatever be liable to the Buyer, whether in contract, tort

(including negligence), breach of statutory duty, or otherwise, for any loss of profit, goodwill or any indirect or consequential loss arising under or in connection with the Contract; and

(b) 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 in no circumstances exceed 100% of price of the Goods.

11. FORCE MAJEURE

11.1 The Seller shall not be liable to the Buyer nor be deemed to be in breach of Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to

the Contract if the delay or failure was due to a Force Majeure Event. The following shall (without limitation) be regarded as Force Majeure Event: act of God, explosion, flood, tempest, fire or accident;

(b) war or threat of war, sabotage, insurrection, terrorism, civil disturbance or requisition;

(c) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

(d) import or export regulations or embargoes;

(e) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);

(f) difficulties in obtaining raw materials, labour, fuel, parts or machinery; and

(g) power failure or breakdown in machinery.

12. INTELLECTUAL PROPERTY

12.1 All specifications, drawings, designs and technical description, and all documents and information and “know-how” whatsoever supplied by the Seller to the Buyer is as between the Seller and the Buyer the Seller’s intellectual property and shall at all times be treated by the Buyer as confidential and shall not without the prior written consent of the Seller be used by the Buyer except for the purposes of the Contract.

12.2 The Buyer will indemnify the Seller against all actions claims demands costs charges, penalties, royalties and expenses arising directly or indirectly or incurred by reason of any infringement or alleged infringement of or any right attributable to any letters patent, registered design trade mark, trade name, copyright or proprietary right arising from the use of any instructions, specifications or designs whether express or implied supplied by the Buyer to the Seller.

13. INSOLVENCY OF BUYER

13.1 This Condition applies if:

(a) the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

(b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or

(c) the Buyer ceases, or threatens to cease, to carry on business; or

(d) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

13.2 If this Condition applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to terminate the Contract with immediate effect by giving written notice to the Buyer and/ or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for, all of the Seller’s outstanding invoices to the Buyer become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

13.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.

14. GENERAL

14.1 Notices. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at his registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

14.2 Severance. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions shall remain in full force and effect.

14.3 Waiver. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

14.4 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.

14.5 Variation. No variation of these Conditions may be given by any of the Seller’s employees unless confirmed in writing by an authorised director of the Seller and no collateral or supplemental contract may be made or construed unless confirmed in writing by an authorised director of the Seller on the Seller’s official stationery.

14.6 Entire Agreement. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Seller which is not set out in the Contract.

14.7 Governing law and jurisdiction. The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the nonexclusive jurisdiction of the English courts.

15. SPECIFICATIONS AND INSTRUCTIONS

15.1 Unless the Seller agrees otherwise, only the specifications referred to in the quotation shall form part of the Contract.

15.2 The Seller reserves the right subject to giving prior written notice to the Buyer to modify the said specifications where the Goods cannot in the opinion of the Seller be manufactured according to the said specifications and the Buyer agrees to accept the Goods as manufactured according to the specifications so modified in satisfaction of the Sellers obligations as to manufacture of the Goods under the contracts.

15.3 App Based Goods – the Buyer shall ensure that prior to supplying any app based goods to any customer it shall include within its customer terms and conditions for supply of the App based Goods a requirement for the customer to have read, understood and agreed to the app terms and conditions for the Goods prior to completion of purchase of the Goods. Where such Goods are supplied or installed by a third party for and/or on behalf of the Buyer the Buyer shall ensure that such installer also complies with this clause 10.3 by including this provision in its contract with the installer.