McArthur Group Ltd

Conditions of Sale

McArthur Group Limited and Subsidiary Companies Conditions of Sale (1998)

1.The McArthur Group Limited and its subsidiaries ("the Company") shall sell and the buyer ("the Buyer') whose order for the goods, including any installment of the goods or any part of them, is accepted by the Company shall purchase the goods ("the Goods') subject to these Conditions which shall govern the contract for the sale and purchase of the Goods ("the Contract") to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made by the Buyer. "These Conditions" shall mean the standard terms and conditions of sale set out in this document and shall include any special terms and conditions agreed in writing between the Buyer and the Company.

2.If the Buyer's order purports to exclude these Conditions such clause shall be ineffective unless the Buyer shall have obtained the Company's express written agreement to vary these Conditions.

(a)While the Company will do its best to comply with any requirements notified by the Buyer, the responsibility for ensuring that the Goods are suitable for the Buyer's purpose and meet the Buyer's requirements is the Buyer's.

(b)No warranty, condition, description or representation (unless it was made fraudulently) given or made before the Company's acceptance of order is to be treated as a term of the contract or as inducing it unless expressly incorporated in the contract documents.

3.Unless fixed prices have been expressly agreed by the Company the price payable by the Buyer shall be the Company's ruling price at the date of despatch of each delivery. Prices are subject to a delivery charge where appropriate and are subject to the addition of VAT. Payment is due by the last day of the month following the month of despatch. The Company shall be entitled to charge the Buyer interest at 8% above the base rate for the time being of the National Westminster Bank PLC (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) until payment is made.

4.Dates or periods of delivery stated in the Contract are approximate only and time shall not be of the essence of the contract.

5.The Company shall not be liable or deemed to be in breach of contract for delay in delivery or failure to make delivery of any Goods due to circumstances beyond its control, including but without prejudice to the generality of the foregoing, war, rebellion, revolution, strikes, lock-outs, breakdown of plant or governmental or other laws, regulations rules or decrees.

6. (a)The Company warrants that where applicable the Goods are at the time of supply within usual tolerances as to quality and finish and will replace or refund (at its option) the price of any Goods which do not comply with this warranty to the maximum of the price invoiced for the Goods. As the Company is generally unaware of the use to which its Goods will be put all conditions and warranties as to fitness for purpose whether express or implied and whether arising by statute, custom of the trade or at common law are excluded.

(b)Subject to clause 6(a) above in respect of Goods manufactured by it the Company will (at its option) repair, replace or credit to the maximum of the price invoiced for the Goods the Buyer in respect of any defects resulting from faulty materials or workmanship as long as

(i)the defect does not arise from misuse by the Buyer or the use of the Buyer's own specification;

(ii)prompt notification is given to the Company within 3 days of delivery or (where the defect was not apparent on reasonable inspection at the date of delivery) within reasonable time after the discovery of the defect.

(c)In respect of hire work to include galvanising, undertaken by the Company on Goods supplied by the Buyer the Company shall have no liability for any material damaged or incorrectly processed other than (at the Company's option) to process, free of charge, replacement material supplied by the Buyer (provided that the charge for hire work has been paid) or to credit to the maximum of the price invoiced for the Goods the hire work charge.

(d)Where Goods supplied are not manufactured by the Company, the Company's liability is limited to passing to the Buyer the benefit of any manufacturers' warranty.

(e)Where the Goods are sold under a consumer sale (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions.

(f)Except in respect of death or personal injury caused by the Company's negligence, the Company shall not be liable to the Buyer by reason of any representation (other than fraudulent misrepresentation) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses, or other claim for consequential compensation whatsoever (and whether caused by the negligence of the Company, its employees or agents or otherwise) which arises out of or in connection with the supply of the Goods or their resale by the Buyer. except as expressly provided in these Conditions.

7.Risk in respect of Goods shall pass to the Buyer on delivery. When Goods are delivered by the Company's own transport, delivery shall be deemed to take place at the moment the Goods are lifted from the delivery vehicle, When Goods are delivered by other means of transport, delivery shall be deemed to take place when the Goods are loaded on to the road or rail vehicle used unless specifically agreed otherwise in writing.

8.The ownership of the Goods to be delivered by the Company will only be transferred to the Buyer when payment of all monies owing by the Buyer to the Company or our associated companies has been made in full. Where some of the Goods supplied by the Company have been paid for and some have not, the company shall be entitled to assume that any Goods disposed of are those that have been paid for, and that any Goods remaining are those for which payment has not been made. Until the date of payment the Buyer is required to store the Goods in such a way that it is clearly the property of the Company. Subject to the foregoing the Buyer has the right to sell the Goods before all outstanding liabilities between the Buyer and the Company have been paid.

9.Unless ownership has been transferred, the Buyer shall not and shall have no power to mortgage, charge or otherwise encumber the Goods or dispose of them (otherwise than by resale in the ordinary course of the Buyer's business) without the Company's prior written consent but if the Buyer does so all monies owing by the Buyer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.

10.If at any time whilst any monies are due from the Buyer to the Company (howsoever the same shall have arisen) the Buyer shall deal with the Goods in any manner (save by resale or usage in the ordinary course of the Buyer's business) adverse to the Company's title or (being an individual) shall have a receiving order made against him or be made bankrupt or (being a Company) shall enter into liquidation or appoint or have appointed a receiver or if any Goods in the possession of the Buyer (whether the Company's Goods or not) are seized under any execution or distress or any other form of legal process or if the Buyer shall fail to pay the Company in full for the Goods (or any other Goods previously supplied by the Company) within 48 hours of service of formal written demand for payment then thereupon the Buyer shall cease to be in possession of the Goods with the Company's consent and its representative(s) shall be entitled to enter upon the premises of any Buyer and to remove such Goods and shall not be liable for any damage or injury reasonably done to any other property of the Buyer or in the Buyer's possession during such removal and retaking of possession.

11.Claims for non delivery, discrepancy in weight or damage must be notified in writing in the case of Goods dispatched:

(a) by road, within 3 days of the date of despatch;

(b) by rail, within 21 days of the date of despatch;

(c) by ship and OF (Incoterms 1990) export contracts, within 28 days of the date of arrival at the Port of destination.

(d) FOB (Incoterms 1990) export contracts, within 90 days of the date of shipment

Invoice overcharges must be notified within 14 days.

12.If the Buyer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Company's fault) then without prejudice to any other right or remedy available to the Company, the Company may:

(a)store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage and administration expenses; or

(b)sell the Goods at the best price readily obtainable and (after deducting all reasonable storage, administration expenses and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract

13.Orders placed cannot be cancelled by the Buyer except with the Company's consent and on terms which will indemnify the Company against loss (including loss of profit), costs (including the costs of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation. The Buyer cannot return any Goods made to the Buyer's specification and drivers cannot accept the return of Goods without the Company's written authority. Any Goods returned without the Company's consent will not be accepted for credit.

14.Return of Goods: a handling charge of 12.5% plus costs of transport will be made on all Goods returned in good condition having been ordered in error or in excess of requirement The minimum handling charge made will be E35. In addition, where the Company regards the Goods as being special or not standard stock items or quantities then a further handling charge will be made equal to either

(a)the handling charge paid by the Company to its supplier; or

(b)the price at which the Company can sell the Goods elsewhere (after deducting all reasonable storage, selling and administration expenses).

15.The Buyer shall have no right to reject any deliveries of Goods on the grounds of variation of quantity from the Buyer's order where such variation is not more than 10% or not less than 10% of the quantity of Goods ordered.

16.The Buyer shall not be entitled to withhold payment of any sums due to the Company by reason of any disputed claim of the Buyer for defective Goods or alleged breach of contract by the Company.

17.Without prejudice to any of its other rights the Company may without giving notice to the Buyer terminate the contract or suspend further deliveries without liability to the Buyer in the event of the Buyer failing to make payment for any Goods when due or if the Buyer exceeds any credit limit specified by the Company or if any distress execution or other legal process shall be levied upon the Buyer or if the Buyer ceases or threatens to cease to carry on business becomes insolvent or being a body corporate has passed a Resolution for voluntary winding-up or is subject to a winding-up Order of the Court or has had a Receiver appointed or the Company reasonably apprehends that any of the events mentioned in this clause is about to occur in relation to the Buyer and notifies the Buyer accordingly.

18.The Company may, in whole or in part, release, compound, compromise, waive or postpone, in its absolute discretion, any liability owed to it or right granted to it under the Contract by the Buyer without in any way prejudicing or affecting its rights in respect of any other liability or right not so released, compounded, compromised, waived or postponed.

19.No single or partial exercise or failure or delay in exercising any right, power or remedy by either party shall constitute a waiver by that party of, or impair or preclude any further exercise of that or any right, power or remedy arising under the Contract or otherwise.

20.To the extent that any provision of these Conditions is found by any court or competent authority to be invalid, unlawful or enforceable in any jurisdiction, that provision shall be deemed not to be a part of these Conditions, it shall not affect the enforceability of the remainder of these Conditions nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.

21.The contract between the Company and the Buyer shall be deemed to have been made in England and shall be governed in all respects by English law. The Buyer shall submit to the jurisdiction of the English Courts.