Terms and Conditions of Purchase

Terms and Conditions of purchase of goods and/or services for Blue Cube Portable Cold Stores Limited (the “Company”)

1. DEFINITIONS

In this document the following words and expressions shall have the following meanings:-

“Contract” means a contract for the purchase of the Goods or Services by the Company from the Seller in accordance with the Company’s order form of which these Terms and Conditions of Purchase form part, and (where relevant) the Specification;

“Goods” means the equipment, goods and/or materials ordered or bought by the Company in terms of the Contract (including the replacement and renewals thereof and all accessories and additions thereto whether added or made before, on or after the date of the relevant Order);

“Losses” means direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses)

“Order” means an order for Goods and/or Services made by the Company using the Company’s standard order form;

“Price” means the price payable for the Goods or Services by the Company as set out in the Company’s order form;

“Seller” means any person or persons, firm or firms, company or companies, authority or authorities named in the Order and shall include his or their successors, executors and personal representatives;

“Services” means any services ordered by the Company in terms of the Contract;

“Specification” means the specification setting out the Company’s requirements in respect of the Goods or Services, which is attached to the order form or which shall be submitted by the Company to the Seller; and

“Terms and Conditions” means the terms and conditions contained in this document.

1.1 Save to the extent that the context or the express provisions of these Terms and Conditions require otherwise, in these Terms and Conditions:-

(a) words importing the singular shall include the plural and vice versa;

(b) references to any statute or statutory provision (including any subordinate legislation) include any statute or statutory provision which amends, extends, consolidates or replaces the same, and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute;

(c) any phrase introduced by the words “including”, “include”, “in particular” or any cognate expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; and

(d) the words “other” and “otherwise” shall not be construed ejusdems generis with any foregoing words where a wider construction is possible.

1.2 The headings to Clauses are inserted for convenience only and shall not affect the interpretation or construction of these Terms and Conditions.

1.3 The Company reserves the right to withdraw or cancel any Order or request for a quotation without notice at any time prior to receipt of acceptance and any quotation given by the Seller shall be subject to acknowledgement as stated below.

1.4 No request for a quotation by the Company shall constitute an Order.

1.5 The Company shall not be bound by any terms or any conditions set out in the Seller’s acknowledgement and these Terms and Conditions shall prevail to the exclusion of all other terms or conditions including any standard conditions issued by the Seller.

1.6 No previous correspondence, writings, facsimiles or verbal communications between the Seller and the Company regarding the Goods or Services shall form any part of or be incorporated into the Contract unless specifically referred to on the Order. For the avoidance of doubt, nothing in the Contract shall exclude or limit liability for fraudulent misrepresentation.

1.7 An Order shall be accepted by means of the Seller’s written acknowledgement;

1.8 No Order shall be binding on the Company unless a written and unqualified acknowledgement and acceptance of such Order is received by the Company from the Seller within 14 working days of the date of issue of the Order. Where the Seller has not notified the Company of Order acknowledgement as aforesaid and the Company does not elect to withdraw the Order then commencement of performance of the Order by the Supplier shall be deemed to be unconditional acceptance of the Order by the Supplier.

1.9 Each Order acknowledged by the Seller shall be deemed to be an individual legally binding Contract between the Company and the Seller and shall be deemed to be subject to these Terms and Conditions.

1.10 Where the Seller receives any direction to vary the order which would occasion an amendment to the Price, then such amendment shall be valued by the Company by reference to any rates for, or schedules of, similar or related goods incorporated in the Company’s order form, failing which at a fair and reasonable rate.

2. PRICE

The Seller shall not make any alteration to the Price and any purported alteration shall not be binding on the Company unless and until confirmed in writing to the Seller as accepted by the Company.

3. PAYMENT

The Price shall be set out on the face of the Order. Any taxes or duties (including import duties) due shall be set out separately on the Order. The Price shall be payable within 30 days of the date on which the Company receives a detailed invoice from the Seller or, if later, the date on which the Company takes delivery of the Goods. For the avoidance of doubt, time for payment shall not be of the essence of the Contract.

4. PACKAGING

All packaging materials are non-returnable unless otherwise specified in the Contract. Where a charge is made by the Seller in respect of packing materials and these are returned by the Company within 30 days of receipt of the Goods the Seller shall refund to the Company (whether by way of a credit or otherwise) the full amount charged.

5. DELIVERY

5.1 The Goods and/or Services shall be delivered to the Company at the place and in accordance with the timescale notified by the Company. The Goods and/or Services shall be subject to inspection by the Company and delivery shall not be accepted, or be deemed to be accepted, until the Company shall have notified the Seller in writing to that effect. Where a latent defect arises which could not reasonably have been apparent at the time of inspection such goods shall be deemed not to have been accepted by the Company until a reasonable time after the latent defect becomes apparent.

5.2 The Price shall be deemed to be inclusive of all carriage costs unless otherwise specifically stated in the Contract or agreed in writing by the Company. Should the Goods be rejected by the Company then the Seller will be obliged to remove them at the Seller’s own cost.

5.3 The Seller waives any right to any lien or right of retention which the Seller may have on the Goods in its possession.

5.4 Time shall be of the essence in respect of the Seller’s compliance with its obligations under the Contract in particular (without limitation) in respect of compliance with timescales set out in the Contract or otherwise agreed between the Company and the Seller.

5.5 In the event of any delay in delivery of the Goods or Services or any alteration in the Specification, the Seller must notify the Company in writing of any such delay or alteration (along with an explanation for such delay or alteration) as soon as the Seller becomes aware of the delay or alteration. The Company shall, without prejudice to any other remedies available to it, be entitled to reject the Goods or Services and rescind the Contract without any further obligations thereunder but without prejudice to any rights it may have thereunder.

6. RISK

The risk of loss, damage or destruction of the Goods shall not pass to the Company until immediately after the Seller shall have received the Company’s notification that delivery has been accepted.

7. TITLE TO GOODS

7.1 The Seller warrants that it has good title to the Goods and that it will transfer such title as it may have in the Goods to the Company pursuant to this Clause.

7.2 Except as provided in this Clause 7 property and title in the Goods shall pass to the Company immediately upon despatch of the Goods to the Company or the Company’s customer. If payment of the Price shall be made prior to despatch of the Goods to the Company, property and title in the Goods shall pass to the Company on payment and the Seller shall at his own risk separate, identify and hold the Goods on behalf of the Company and shall account to the Company for his intromissions with the same, subject to the Company’s right of rejection upon delivery as set out in Clause 12 and the return of the price paid together with any loss flowing from the breach of these Terms and Conditions.

8. SERVICES

8.1 Where any Goods are sold and/or otherwise provided on the basis of Services being given during a stated period the Seller will provide such Services during normal working hours as shall in the opinion of the Company be necessary and the stated period shall run from the date of delivery of any Goods being supplied or such other date as the Company and the Seller have agreed.

8.2 In the event that the Contract relates solely to Services the Services shall be provided during normal working hours or otherwise as provided for in the quotation as shall in the opinion of the Company be necessary. Any Contract relating solely to the provision of Services may be terminated by either party giving three months’ notice to the other party in writing to that effect.

9 COMPANY’S RIGHTS

9.1 The Company’s rights under these Conditions are in addition to the statutory conditions implied in favour of the Company.

10. SELLER’S WARRANTY AND LIABILITY FOR DEFECTS

10.1 The Seller warrants that (i) the Goods shall be of the best available design and be of the best quality, material and workmanship; (ii) the design, quality, material and workmanship of the Goods will comply with all the requirements set out in the Order and the Specification; and (iii) the Goods and Services will be fit for the Company’s intended purpose including in particular without limitation in respect of the Goods’ design and functionality. The Seller undertakes that it will provide, at its own expense, all assistance required by the Company in respect of ensuring that any goods in which the Goods are incorporated are accepted by a third party purchaser from the Company.

10.2 The Seller shall be responsible for complying with and giving all notices required by any Acts of Parliament or any order made under an Act of Parliament or any regulation or bye law of any local authority or any statutory undertaking which has any jurisdiction with regard to the Goods or Services. The Seller shall pay and indemnify the Company against any liability in respect of any fees or charges legally demanded under any Act of Parliament, any instrument, rule or order made under any Act of Parliament or any regulation or bye law of any local authority or any statutory undertaking.

11. INDEMNITY

11.1 The Seller shall keep the Company indemnified in full against all Losses awarded against or incurred or paid by the Company as a result of or in connection with:

(a) any breach of the terms of the Contract by the Seller; and

(b) any damage to property or in respect of any injury (including death) to any person which may result directly or indirectly from any defect in the Goods or Services or the acts or omissions of the Seller or any of its employees, agents or sub-contractors; and

(b) any claim made against the Company in respect of any Losses sustained by the Company’s employees or agents or by any customer or third party to the extent that such Losses was caused by, relates to or arises from the Goods or Services.

12. REMEDIES

12.1 Without prejudice to any other right or remedy which the Company may have, if any Goods or Services are not supplied in accordance with, or the Seller fails to comply with, any of the terms of this Contract the Company shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods or Services have been accepted by the Company or its customer:

(a) to rescind the Contract;

(b) to reject the Goods or Services (in whole or in part) and (where appropriate) return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods or (where appropriate) Services so returned shall be paid forthwith by the Seller;

(c) at the Company’s option to give the Seller the opportunity at the Seller’s expense either to remedy any defect in the Goods or Services or to supply replacement Goods or Services and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;

(d) to refuse to accept any further deliveries of the Goods or Services under the Contract but without any liability to the Seller;

(e) to carry out at the Seller’s expense any work necessary to make the Goods or Services comply with the Contract; and

(f) to claim such damages as may have been sustained in consequence of the Seller’s breaches of the Contract.

12.2 Upon termination of any Contract, the Seller or the Seller’s receiver, administrator, liquidator or trustee in sequestration shall deliver to the Company any Goods relating to that Contract, in the possession of the Seller for which the Company has paid.

12.3 If Goods are not delivered in accordance with Clause 5.1, the Seller or the Seller’s receiver, administrator, liquidator or trustee in sequestration shall be liable to the Company for the cost of those Goods.

13. TRANSFER OF RIGHTS

The Seller shall not assign his rights or obligations under the Contract nor subcontract it as a whole or in part without the prior written consent of the Company and on such terms as the Company, in its absolute discretion, may see fit. The Company may assign its rights under this Contract in whole or in part at its sole discretion.

14. INTELLECTUAL PROPERTY RIGHTS

14.1 The Seller shall indemnify the Company and its customers against all Losses arising from any infringement of any third party’s intellectual property rights by the manufacture or sale by the Seller of the Goods or provision of Services or the Company’s use of the Goods or Services.

14.2 All intellectual property rights in any specifications, plans, drawings, process information, patterns or designs supplied by the Company to the Seller in connection with the Contract shall remain the property of the Company, and any information derived therefrom or otherwise communicated to the Seller in connection with the Contract shall be kept secret and shall not, without the consent in writing of the Company, be published or disclosed to any third party or made use of by the Seller except for the purpose of implementing the Contract or where such information is in the public domain or disclosure is required by law or any recognised stock exchange. Any specification, plans, drawings, process information, patterns or designs supplied by the Company must be returned to the Company on fulfilment of the Contract.

14.3 For the purposes of these Terms and Conditions, “intellectual property rights” shall mean patents (or applications therefor), registered designs (or applications therefor), design rights, registered and unregistered trademarks and copyright and any other intellectual property rights of whatever nature and wherever arising (including goodwill, know-how and confidential information).

15. INSOLVENCY OF THE SELLER

15.1 If the Seller commits an act of bankruptcy or insolvency or becomes apparently insolvent or if the Seller’s estate is sequestrated or a receiver, administrator or liquidator is appointed to the Seller or the Seller seeks to enter into any voluntary arrangement with his creditors, the Contract will be deemed to be rescinded forthwith without written notice and without compensation to the Seller, but without prejudice to the Seller’s right to receive payment for any Goods / Services provided up to the date of such rescission. Upon the rescission of any Contract, the Seller or the Seller’s receiver, administrator, liquidator or trustee in sequestration shall deliver up to the Company any Goods for which the Company has paid that are in the possession of the Seller and shall be liable to the Company for failure to do so.

16. FORCE MAJEURE

16.1 If performance of any Contract by the Company shall be delayed by any circumstances or conditions beyond the control of the Company including (but without prejudice to the generality of the foregoing) any war, industrial dispute, strike, lockout, riot, malicious damage, fire, storm, flood, Act of God, accident, failure of production equipment, any statute, rule, byelaw, order, regulation or requisition made or issued by any government department, local or other duly constituted authority (each an “Event of Force Majeure”), then the Company shall have the right to suspend further performance of the Contract until such time as the cause of delay shall no longer be present

16.2 The Company shall incur no liability to the extent to which the fulfilment of any obligations or any part thereof is prevented, frustrated or impeded as a consequence of an Event of Force Majeure.

16.3 If performance of the Contract by the Company shall be delayed by any Event of Force Majeure for a period of three months, then the Company shall have the right to be discharged from further performance of and liability under the Contract.

16.4 The Company shall also be entitled to cancel the contract without liability in the event of any necessary licence or consents not being forthcoming.

17. NOTICES

17.1 Any notice to be given under, or in connection with these Terms and Conditions shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally or sending it by facsimile or pre-paid recorded delivery or registered post to the registered office or principal place of business of the party (marked for the attention of the Managing Director), (or as otherwise notified by that party hereunder).

18. WAIVER

No failure or delay by any party in exercising any right, power or privilege under these Terms and Conditions shall operate as a waiver nor shall any single or partial exercise preclude any further exercise of any right, power or privilege under these Terms and Conditions or otherwise.

If any provision of these Terms and Conditions shall be found by any court of competent jurisdiction to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall not affect the other part of that provision or the other provisions of these Terms and Conditions which shall remain in full force and effect.

19. GOVERNING LAW

The interpretation of these Terms and Conditions and any Contract formed under these Terms and Conditions shall be governed by and construed in accordance with the laws of England and Wales and the parties hereto submit to the non-exclusive jurisdiction of the Courts of England and Wales