The customer's attention is drawn in particular to the provisions of clause 9.

1. INTERPRETATION

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

Business Day: a day (other than a Saturday, Sunday or public holiday)
Conditions: the terms and conditions set out in this document as may be amended from time to time in accordance with clause 11.6.
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 or Services from the Supplier.
Force Majeure Event: has the meaning given in clause 10.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer's written order for the Goods, or the Customer's written acceptance of the Supplier's quotation, as the case may be.
Services: the services provided by the Supplier to the Customer in conjunction with the supply of the Goods.
Specification: any specification for the Goods that is agreed in writing by the Customer and the Supplier. The Specification may be encompassed within the Order.
Supplier: ETB TECHNOLOGIES LIMITED, a company incorporated under the Companies Acts and registered in Scotland (Company Number: SC224120) and having its registered office at ETB Technologies Ltd, Edingham Industrial , Dalbeattie, Kirkcudbrightshire, DG5 4NA.

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 assignees.
(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 e-mails.

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 submitted by the Customer are complete and accurate.

2.3 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.

2.4 Any samples, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations provided by the Supplier in any catalogue 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.

2.5 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for the period indicated on such quotation

3. GOODS

3.1The Goods are described in the Specification.

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

4. DELIVERY

4.1The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the type and quantity of the Goods

4.2 The Supplier shall deliver the Goods to the location recorded in the Order or such other location as the parties may agree (the “Delivery Location”).

4.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.

4.4 Any dates quoted for delivery are approximate only. The Supplier shall not be liable for any delay in delivery of the Goods and time shall not be of the essence of the Contract.

4.5 If, 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery, the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

4.6 The Supplier accepts no liability for:
(a) Non-delivery of Goods after the Supplier has shipped the Goods to the address specified by the Customer;
(b) Loss or damage to Goods occurring after the Goods have been delivered by the Supplier;
(c) Any claim that the Goods are not in accordance with the Contract, unless such claims are made in writing to the Supplier within 1 Business Day of delivery to the address specified by the Customer.

4.7 In the unlikely event that the Supplier has short shipped Goods or the Goods have arrived damaged, the Customer must inform the Supplier in writing by email within 1 Business Day of delivery.

4.8 If the Goods are received with a patent defect, the Customer should sign for the delivery as “Damaged” on the courier’s delivery document. Once the Supplier has received back the damaged Goods, the Supplier will have the opportunity to repair the Goods and delivery them to the Customer; if the Goods cannot be repaired to a satisfactory standard within a reasonable time then the Supplier will either issue a replacement, a like for like alternative or a refund.

4.9 The Customer warrants and undertakes to the Supplier that there will be free and clear access to any address specified in the Order in respect of the delivery of the Goods. The Supplier reserves the right to increase the price for the Goods in the event that there is insufficient free and clear access for delivery of the Goods and the Customer shall indemnify and hold harmless the Supplier in respect of any costs, claims, awards, liabilities or expenses arising from a breach of the undertaking in this clause or arising from any claim made by a third party against the Supplier in respect of access taken by the Supplier under the direction or supervision of the Customer.

5. WARRANTY FOR GOODS

5.1 The Supplier shall procure the assignation to the Customer of any valid and transferable warranty provided by the manufacturer in respect of the Goods.

5.2 In the event that any warranty available from the manufacturer of the Goods is for less than 3 months, the Supplier shall be deemed to warrant the goods for the period of time indicated on the invoice issued by the Supplier in respect of those Goods.

5.3 Any claim under a warranty granted by the Supplier must be intimated in writing to the Supplier within the warranty period. The Supplier must be given the opportunity to repair or replace the Goods and the supplier shall not be liable of the costs of carriage nor for any financial or other consequences (whether direct or indirect) as a result of the Goods not being available for any period of time.

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

5.5 If the Customer is a consumer (as defined in the Consumer Rights Act 2015 (CRA)) then nothing in these Conditions shall limit the Customer’s rights or Supplier’s obligations provided for in the CRA.

6. TITLE AND RISK

6.1 The risk in the Goods shall pass to the Customer on completion of delivery

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:
(a) the Goods;
(b) any Services; and
(c) 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:
(a) hold the Goods on trust as the Supplier's bare trustee;
(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 Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.

6.4 Before title to the Goods has passed to the Customer in accordance with clause 6.2 above, title to the Goods shall remain with the Supplier, notwithstanding that the Goods have been incorporated in or affixed to other products including, for the avoidance of doubt, the storage of or incorporate of any software in ROM, RAM or any other hardware, software or firmware or other media whatsoever.

6.5 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 (the “Price”) of the Goods shall be the price set out in the Order.

7.2 The Supplier may, by giving notice to the Customer at any time up to 5 Business Days before delivery, increase the Price to reflect any increase in the cost of the Goods that is due to:
(a) any request by the Customer to change the delivery date(s), delivery address, quantities or types of Goods ordered, or the Specification; or
(b) 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 is exclusive of the costs and charges of transport of the Goods, which shall be invoiced to the Customer.

7.4 The Price is exclusive of amounts in respect of value added tax (VAT). Where applicable 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 Price shall be payable in such stages as are provided for in the Order.

7.6 The Supplier may, at its discretion, offer credit terms to the Customer. Such credit terms shall be determined by the Supplier and confirmed in writing to the Customer. Where credit terms are granted, no amendments shall be effective unless made in writing by the Supplier. Purported amendments by email or telephone shall not be effective.

7.7 Payment of the Price shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.

7.8 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (the “due date”), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Clydesdale Bank PLC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

7.9 If the Supplier uses third party services to recuperate any overdue payments, the Customer shall also incur the additional charges for the use of the third party services.

7.10 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 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 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 suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(g) (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(i) 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) to clause 8.2(h) (inclusive);
(j) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) 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; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs.

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. LIMITATION OF LIABILITY

9.1 Nothing in these Conditions shall limit or exclude the Supplier'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; or
(d) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

9.2 Subject to clause 9.1:
(a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, delict (including negligence), breach of statutory duty or otherwise, for any loss of profit, 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, delict (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed the Price.

10. 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, pandemics and any resultant restrictions on the freedom of movement of goods or persons, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

11. GENERAL

11.1 Assignation and sub-contracting
(a) 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.
(b) 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.

11.2 Notices
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax, one Business Day after transmission; or, if sent by email, upon receipt of a delivery receipt or acknowledgment of the email by way of reply.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

11.3 Severance
(a) 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.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

11.4 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.

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

11.6 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.

11.7 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 the laws of Scotland, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Scotland.

December 2020
V1