1. INTERPRETATION

In these Conditions ‘the Company’ means Betts Metals Sales Limited and Stephen Betts and Sons Limited ‘the goods’ means the goods the subject of this contract of sale or supply

2. ACCEPTANCE AND VARIATION OF CONDITIONS

The following Conditions and the provisions of the Sale of Goods Act 1979 not inconsistent therewith shall apply to all contracts except to the extent that they are varied in writing by our authorised representative. If the terms and conditions stated in the customer’s order are inconsistent with these Conditions, or if they contain a provision purporting to override these Conditions, our Acknowledgment of Order shall constitute a counter offer. The contract shall come into being when the customer has accepted our counter-offer either expressly or impliedly. If the customer, after receiving our counter-offer notifies us that he does not accept these conditions, then the formation of a contract shall be subject to negotiation.

3. AVAILABILITY OF MATERIALS AND INFORMATION

Acceptance of orders and completion of contracts are subject to:

3.1 such materials, components and services (including suppliers from sub-contractors) and

3.2 such specifications, information and other material being available or being made available as will enable us to proceed with and complete the contract and to continue manufacture without interruption

4. PRICES

We shall be entitled to take into account fluctuations in the cost of materials, components, labour and services, including services provided by us (such as metal handling and financing) at the date of despatch of the goods. Unless otherwise agreed:

4.1 products containing Gold or Silver will be charged at prices based on the next available market fixing following the receipt of the customer’s order, or on a subsequent date at our discretion

4.2 products containing Platinum Group Metals and/or metals other than Gold or Silver will be charged at the prices ruling either:

4.2.1 on the day of receipt of the customer’s order, or where this is not possible on the next available business day thereafter or on the day of despatch of the goods, or where this is not possible on the next available business day thereafter at our discretion Unless otherwise stated, freight and insurance will be charged at rates ruling on the day of despatch of the goods.

5. TAXES AND CUSTOMS DUTIES

We shall be entitled to add to the price the amount of any, or the increase in any, sales, excise and other taxes payable by us in respect of the sale of the goods.

6. QUANTITIES

Although we will use our best efforts to supply the exact quantity of material ordered, the customer shall accept the supply of quantity (whether more or less) within 5 percent of the stipulated amount of this order. In such circumstances the invoice value of the goods shall be subject to a corresponding adjustment. Subject as aforesaid, the prices quoted are for the quantities and despatch conditions stipulated in the Quotation and do not necessarily apply to other quantities or to different conditions of despatch

7. DESPATCH DATES

Although we will use all reasonable efforts to meet our despatch forecasts, such forecasts are estimates only and accordingly time for delivery shall not be of the essence. We shall not be liable in any circumstances for loss, whether direct or consequential, arising from delay in despatch.

8. WITHHOLDING OF DELIVERY We shall be entitled without prejudice to any of our other remedies to withhold delivery of any goods if either:

8.1 payment of any amount stated in any invoice issued by us is then outstanding and overdue, or

8.2 upon the invoicing of such goods the customer’s credit limit (if any) with us would thereby be exceeded In determining the customer’s credit limit for such purposes the aggregate invoice value of all invoices issued to the customer by us and which are then outstanding including unpaid accounts, shall be taken into account

9. PASSING OF RISK

The risk in the goods shall pass to the customer either:

9.1 on delivery to the address specified by the customer either by us or by our delivery agent or by a common carrier, or

9.2 on delivery to the customer, the customer’s servant or the customer’s agent

10. PASSING OF OWNERSHIP

10.1 until we have received full payment for all goods whatsoever that we have supplied at any time to the customer:

10.1.1 the goods shall remain our property and the customer shall store the goods separately and/or keep them in such a way that they can be readily identified as being our property. The customer shall ensure that the goods shall be kept free from any charge, lien or other encumbrance

10.1.2 notwithstanding any inconsistency (if any) with any other provision of these Conditions the customer acknowledges and admits that until full payment for the goods has been made it holds the goods in a fiduciary relationship as our bailee

10.1.3 subject to 10.1.6 and 10.1.7 below, the customer shall have our authority to use the goods or any of them in its manufacturing process on the basis that where the same are converted into a new product, either with or without the admixture of any other goods or thing whatsoever, and in what ever proportions, we shall have full legal and beneficial ownership of the new product

10.1.4 subject to 10.1.6 and 10.1.7 below, the customer shall be at liberty to sell the goods and the new products referred to in 10.1.3 above in the ordinary course of business on the basis that the net proceeds of sale shall be our property and (notwithstanding that any period of credit permitted under the contract may not have expired) the customer shall account to us on demand provided always that the customer shall have no authority to enter into any contract of sale on our behalf and any contract of sale would accordingly be concluded in the name of the customer

10.1.5 where the goods or any new products have been sold by the customer the customer shall at our request and expense assign to us its rights against the sub-purchaser

10.1.6 without prejudice to any other remedy that we may have we may at any time revoke the customer’s power of manufacture and sale by notice to the customer if the customer is in default in payment of any sum whatsoever due to us (whether in respect of the goods or any other goods supplied at any time by us to the customer or for any reason whatsoever) or if any bill of exchange, cheque or negotiable instrument drawn or accepted by the customer in our favour or at our request is dishonoured on presentation for payment, of if we have bona fide doubts as to the solvency of the customer.

10.1.7 the customer’s power of manufacture and sale shall automatically cease if a receiver is appointed over any of the assets or the undertaking of the customer or if the customer goes into voluntary liquidation (otherwise than for the purpose of reconstruction or amalgamation) or calls a meeting of or makes any arrangement or composition with its creditors or commits any act of bankruptcy.

10.1.8 Upon the determination of the customer’s power of manufacture and sale under 10.1.6 and 10.1.7 above:

10.1.8.1 all amounts payable in respect of the goods that have been resold either in their original state or as new products shall immediately become due notwithstanding that any period of credit permitted under the contract may not have expired, and

10.1.8.2 the customer shall immediately place the remaining goods and new products at our disposal and we shall be entitled to enter upon any premises of the customer for the purpose of removing the same and remove the same from the premises (including severance from the realty where necessary). Such return or retaking of possession shall not cancel or otherwise affect this Contract of Sale relating to such goods or the obligation of the customer to complete the purchase and to pay the purchase price in respect thereof (where the same remains outstanding)

10.1.9 we may maintain an action for the price of the goods notwithstanding that ownership of them has not passed to the customer

10.1.10 we or any person nominated by us shall at any time and from time to time until payment in full for the goods has been made by the customer have full access to all the books of account and documents and papers of the customer relating to any one or more of the following:

10.1.10.1 the customer’s dealings with us

10.1.10.2 the customer’s dealings with the goods and new products

10.1.10.3 the customer’s dealings with the proceeds of the sale of the goods and new products

10.1.11 nothing in this Condition shall confer any right upon the customer to return the goods or to refuse or delay payment for them

10.2 for the purpose of this Condition “the goods” shall mean all goods which are subject of any contract of sale or supply between us and the customer.

11. DAMAGE IN TRANSIT AND NON-DELIVERY

Where the risk in the goods has not passed to the customer, we will accept responsibility

11.1 for damage in transit (by repairing or at our option replacing the goods) provided that we are given written notice of such damage within such time and in such manner as will enable us to comply with the carrier’s conditions of carriage applicable to damage in transit, and

11.2 for non-delivery (by at our option recovering or replacing the goods) provided that where we have notified the customer of dispatch of the goods we are given written notice of non-delivery within such time and in such manner as will enable us to comply with the carrier’s conditions of carriage applicable to non-delivery

12. PAYMENT BY CUSTOMERS

Unless otherwise stipulated payment in full is due 30 days from the end of month of invoice

13. FAILURE TO PAY If the customer fails to make payment when due the amount unpaid shall incur compound interest at the rate of 2.5 per cent per month in respect of the whole or part of each month that the amount outstanding shall remain unpaid provided that we shall be entitled (but not bound) to vary the rate of compound interest from time to time having regard to any fluctuations in the lending rates of United Kingdom Banks

14. GENERAL LIEN

Without prejudice to any other remedies we may have in respect of unpaid debts due to us from customers we shall have a general lien on all such customer’s goods or property in our possession (whether worked or not) and we shall be entitled on the expiration of 21 days notice in writing to the customer to dispose of such goods or property as we think fit and to apply any proceeds received towards such debts.

15. SUITABILITY AND FITNESS

15.1 although we use every effort to ensure that all goods are manufactured to specification it is in all cases, including repeat orders, for the customer to ensure by tests or otherwise, that the goods are fit and suitable for the purpose for which the customer requires them in the conditions in which they will be used

15.2 any customer who claims that goods are defective as regards materials or workmanship must give us written notice to that effect and, if requested by us, return the goods to us properly packaged, carriage paid within 30 days of the date of receipt of the goods and in such notice give details of the alleged defect

15.3 we will replace goods which we accept are defective either as regards materials or workmanship provided that they have not been tampered with or subjected to improper treatment and provided that the defects are not as a result of faulty design or incorrect specification by the customer. Goods returned to us and replaced shall become our property

15.4 under no circumstances shall we be under any liability for any direct loss, damage or injury to the customer caused by our negligence, and our liability to the customer shall not under any circumstances exceed the purchase price of the goods

15.5 under no circumstances shall we be under any liability for any indirect, contingent or consequential loss, damage or injury to the customer, however arising:

15.6 we shall not be under any liability in respect of any claim made against the customer by any third party, and the customer shall indemnify us against any claims brought by third parties relating to the goods This condition is in substitution for and (to the extent permitted by English Law) excludes all conditions and warranties as to merchantable quality and fitness implied by statute, common law or otherwise

16. CANCELLATION OR VARIATION BY CUSTOMERS

16.1 no order for goods may be cancelled or varied by the customer without our written agreement. If the customer purports to cancel or vary his order without such agreement or refuses to accept delivery and at the time of such purported cancellation or variation or refusal the market price of any item purchased by us for the execution of the order is lower than the price at which we acquired the same, then without prejudice to any other contractual rights that we may have we shall be entitled to charge the customer with the difference. In addition, we shall be entitled to charge the customer with the full cost of manufacture incurred by us up to the date of the purported cancellation, variation or refusal of any goods specifically manufactured to the customer’s order, including the costs incurred by us in respect of all items ordered, supplied or manufactured specifically for execution of the order in question

16.2 if work on an order is suspended because of the customer’s instructions or lack of instructions, we reserve the right to treat such circumstances as a cancellation by the customer

17. CANCELLATION BY SELLER We shall be entitled to cancel the contract by written notice and without prejudice to any other rights which we may have if:

17.1 the customer shall go into liquidation

17.2 the customer shall have an administration order made against it

17.3 a distress or execution is levied or enforced upon any of the property of the customer and is not paid out or discharged within 14 days

17.4 an encumbrancer takes possession or a receiver is appointed of the undertaking of the customer or any of his property, or

17.5 the customer stops payment or ceases or threatens to cease to carry on his business or pay his debts as and when they fall due

18. FORCE MAJEURE In the event of the normal course of manufacture or delivery of the goods being prevented, interrupted, hindered or delayed by any cause whatsoever beyond our control, or by a lock-out by us of our own employees, we shall have the option without incurring liability to the customer, either to defer the date of dispatch or, according to the nature and extent of such supervening event, to cancel the order on the terms referred to in Condition 16.

19. INDUSTRIAL PROPERTY

A. we will accept no liability (to the extent permitted by English Law) for any claims made against a customer for any infringement of patent rights, of registered or unregistered designs or copyright involved in the use, resale or offering for resale of the goods either as originally sold by us or otherwise B. where we execute the order in accordance with the customer’s designs, plans or specifications, the customer shall indemnify us against all losses, damages, expenses, costs or other liability arising from any claims made against us for infringement or alleged infringement of any third party’s patent or other proprietary rights arising therefrom.

20. SEPARATE DELIVERIES

Where the contract is for the sale of goods by a number of separate deliveries to be separately paid for, a breach affecting one delivery shall not affect any other provided that for so long as payment for any delivery has become due and is unpaid, we shall not (without prejudice to our rights under Condition 17) be liable pending payment to make any further delivery pursuant to the contract

21. PROPER LAW

The construction, validity and performance of all our contracts shall be governed by English Law and by the non-exclusive jurisdiction of the English Courts

22. HEADINGS

The headings to the paragraphs of these Conditions are inserted for convenience or reference only and shall not affect their interpretation Without prejudice to the generality and importance of all the above Standard Conditions of Sale, we draw the customer’s attention particularly to Conditions 8, 9, 10, 13, 14 and 20 which define certain of our contractual rights in the event of non-payment,