AGB Leipold (UK) Ltd.

Leipold UK: Terms and Conditions

1.    Interpretation

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

Bespoke Goods: any Goods which are manufactured to a Customer-supplied specification.

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time.

Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from the Supplier.

Goods: the goods (or any part of them) set out in the Order.

Order: the Customer's order for the Goods.

Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier or set out in the Supplier’s website or catalogue in the case of Standard Goods.

Standard Goods: any Goods which are a standard product produced by the Supplier.

Supplier: Leipold (UK) Limited, a company registered in England and Wales with company number 02948564 whose registered office is at Blackthorn House, St Pauls Square, Birmingham, B3 1RL.

1.2   Construction. In these Conditions, a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); a reference to a party includes its personal representatives, successors or permitted assigns; 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; 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; and a reference to writing or written includes faxes.

2.     Basis of contract

2.1   These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

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

2.3   The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order (or upon delivery of the Goods if no written acceptance is issued), at which point the Contract shall come into existence.

2.4   The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

2.5   Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's website, catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

2.6   A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.

3.     Goods

3.1   The Goods are described in the Order Form in the case of Bespoke Goods, or as described in the Supplier's catalogue or website in the case of Standard Goods.

3.2   The Customer shall indemnify the Supplier 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 professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of any drawing, design, specification or other information supplied by the Customer. This clause 3.1 shall survive termination of the Contract.

3.3   The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.

4.     Delivery

4.1   If the parties have agreed that the Customer shall collect the Goods, the Customer shall collect them from the Supplier’s premises as set out in the Order within 3 Business Days of the Supplier notifying the Customer that the Goods are ready. Otherwise, the Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready. Delivery of the Goods shall be completed in the case of Customer collection on the Goods’ arrival at Supplier’s premises as set out in the Order, or in the case of Supplier delivery on the Goods' arrival at the Delivery Location.

4.2   Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. Lead times may vary from the estimated date by up to a month.

4.3   If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.4   The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

4.5   The Supplier shall not accept the return of Goods by the Customer to the Supplier unless the Goods are defective, in which case the Customer may only return the Goods if asked to do so by the Supplier in accordance with clause 5.2(c). The Supplier shall not accept the return of any packaging materials by the Customer to the Supplier and shall not be responsible for any costs incurred by the Customer in attempting such return. The Supplier may accept the Customer’s own packaging for packing of the Goods, but in such case shall have no responsibility for any losses or damage occurring as a result of the use of the Customer’s own packaging.

5.     Quality

5.1   The Supplier warrants that on delivery the Goods shall:

(a)   conform in all material respects with their description and any applicable Specification; and

(b)   be free from material defects in design, material and workmanship.

(c)   The Supplier does not warrant that the Goods are fit for any particular purpose and it shall be the Customer’s responsibility to ensure that the Goods are suitable for their intended use.

5.2   Subject to clause 5.3, if the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1, the Supplier is given a reasonable opportunityof examining such Goods, and the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place ofbusiness at the Customer's cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price ofthe defective Goods in full.

5.3   The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:

(a)   the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;

(b)   the defect arises because the Customer failed to follow the Supplier'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 Supplier following any drawing, design, Specification or other information supplied by the Customer;

(d)   the Customer alters or repairs such Goods without the written consent of the Supplier;

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

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

5.4   Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.

5.5   Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law (including 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.

5.6   These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

6.     Title and risk

6.1   The risk in the Goods shall pass to the Customer upon delivery, or in the case of Customer collection, upon loading upon the Customer’s vehicle at the Supplier’s premises.

6.2   Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods and for any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.

6.3   Until title to the Goods has passed to the Customer, the Customer shall: hold the Goods on a fiduciary basis as the Supplier's bailee; store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property; not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and give the Supplier such information relating to the Goods as the Supplier may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.

6.4   If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7.     Price and payment

7.1   The price of the Goods shall be the price set out in the Order and payable in the currency set out in the Order, or, if no price is quoted, the price and currency set out in the Supplier's published price list in force as at the date of delivery. The costs of samples, test parts and tooling are not included in the price of the Goods and the Supplier shall be entitled to charge the Customer for such costs at the Supplier’s prevailing rate from time to time or as otherwise agreed.

7.2   The Supplier may, by giving notice to the Customer at any time up to ten Business Days 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 Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs) occurring at least twenty Business Days before delivery up to a maximum of 5%;

(b)   any request by the Customer to change the delivery date(s) or Delivery Location, quantities or types of Goods ordered, or the Specification; or

(c)   any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

7.3   The price of the Goods is inclusive of the costs and charges of packaging and insurance of the Goods, and exclusive transport if not otherwise stated in the agreed Incoterms 2010.

7.4   The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

7.5   The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery. The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice or such other period as is set out in the Order or otherwise agreed between the parties. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.

7.6   If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above Bank of England’s base rate from time to time, accruing on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment.

7.7   The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

8.     Customer's insolvency or incapacity

8.1   If the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.

8.2   For the purposes of clause 8.1, the relevant events are:

(a)   the Customer enters into any compromise or arrangement with its creditors, suspends, or threatens to suspend, payment of its debts, or is or is deemed unable to pay its debts as they fall due, a petition is filed, notice is given, resolution is passed or order is made for its winding up (except for the purposes of amalgamation or reconstruction as a solvent company), is the subject of a bankruptcy petition or order, if a receiver, manager, administrative receiver or administrator is appointed in respect of the whole or any part of its undertaking or assets, if any creditor or encumbrancer takes possession of or a distress, execution, sequestration or other such process is levied on or enforced against, the whole or any part of its business;

(b)   any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a);

(c)   the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;

(d)   the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

(e)   the Customer fails to pay any amount due to the Supplier under the Contract and remains in default not less than 14 days after being notified in writing to make such payment.

8.3   Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

9.     Intellectual property and tooling

9.1   All intellectual property rights (IPR) in any Standard Goods, any cost estimates, first drafts, drawing or other documents or otherwise arising from the performance of the Contract shall belong to the Supplier, including any IPR in respect of the Specification. All tooling required in the manufacturing of the Goods and any IPR therein remains the property of the Supplier notwithstanding any contributions the Customer may have made to the costs of manufacturing such tooling. All IPR in any Bespoke Goods, save to the extent that they incorporate or are based on Standard Goods, shall belong to the Customer.

10.    Limitation of liability

10.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable), fraud or fraudulent misrepresentation, breach of the terms implied by section 12 of the Sale of Goods Act 1979, defective products under the Consumer Protection Act 1987, or other any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

10.2  Subject to clause 10.1:

(a)   the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of production capacity, loss of business or any indirect or consequential loss arising under or in connection with the Contract; and

(b)   the Supplier's total liability to the Customer 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 the price of the Goods.

11.    Force majeure

Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

12.    General

12.1  Assignment and subcontracting. The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.

12.2  Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and addressed to that party at its registered office or principal place of business or to such other address as that party may specify in writing.

12.3  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.

12.4  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.

12.5  Third party rightsA person who is not a party to the Contract shall not have any rights under or in connection with it.

12.6  Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.

12.7  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 exclusive jurisdiction of the courts of England and Wales save that the parties irrevocably agree, for the sole benefit of the Supplier, that the Supplier may bring a claim in any court of competent jurisdiction..