RED LION 83 LIMITED (t/a Oscar Windebank & Son)

TERMS AND CONDITIONS

1.    INTERPRETATION

In these Conditions:

1.1    Business Day is a day other than a Saturday, Sunday or public holiday when banks in London are open for general business.

1.2    Competitor means any firm, individual or company that provides identical or similar goods to the Goods within a 25-mile radius of OWS, based in Box, Wiltshire.

1.3     Conditions means the terms and conditions set out in this document (as amended from time to time).

1.4   Confidential Information means all information passing from one party to the other party (whether disclosed or after the date of the Contract) relating to the business and affairs of the disclosing party, including but not limited to trade secrets or proprietary information, research, know-how, techniques, financial information, business and marketing plans or identified business and opportunities or growth opportunities and projections, arrangements and agreements with third parties, customer information and customer information proprietary to customers, formulae, suppliers, concepts not reduced to material form, designs, plans and models, prospects or details in relation to a party's suppliers, agents distributors, employees, shareholders, group or affiliate companies.

1.5     Contract means the contract between OWS and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

1.6     Customer means the person, firm or company who purchases the Goods from OWS.

1.7     Delivery Location means the place where delivery or collection of the Goods is to take place as detailed in the Contract.

1.8    Force Majeure Event means acts, events, circumstances or causes beyond a party's reasonable control, including, including strikes, lockouts or other industrial disputes (whether involving the workforce of the Customer or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of OWS, its employees, subcontractors or agents.

1.9     Goods means any goods agreed in the Contract to be supplied to the Customer by OWS.

1.10   Order means an order for the Goods submitted by the Customer to OWS in accordance with paragraph 3 of these Conditions.

1.11  OWS means Red Lion 83 Limited, trading as Oscar Windebank & Son, a company incorporated and registered in England and Wales with company number 06066277 with its registered office at Mill Lane, Box, Corsham, Wiltshire, SN13 8PL.

1.12   Price means the price of the Goods as stipulated in accordance with paragraph 2.2 of these Conditions.

1.13   Specification means the specification for the Goods supplied by the Customer and agreed by OWS as set out in the Contract.

1.14   VAT means Value Added Tax chargeable under the Value Added Tax Act 1994 or any similar legislation in force from time to time.

1.15   A reference to a law is a reference to it as it is in force for the time being taking in to account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

2.       the GOODS

2.1     The Customer shall purchase the Goods from OWS and OWS shall provide the Goods subject to these Conditions.

2.2     The quantity, description and price of the Goods shall be as set out in the Order or Contract.

2.3     The Customer confirms that it has sufficient skill and knowledge of the Goods and does not rely on the skill of OWS.

2.4    Any samples, drawings, descriptive matter, specifications or advertising produced by OWS and any descriptions or illustrations contained in OWS' 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 nor have any contractual force and this is not a sale by sample.

2.5     The Contract does not provide any exclusivity in respect of the supply of the Goods to the Customer and the Customer acknowledges that OWS is and remains at liberty to also supply Goods to other third parties. OWS reserves the right to decline to provide to the Customer any Goods, advice or assistance outside the scope of the Goods as specified in the Contract as agreed between the parties, even if OWS may previously have supplied such Goods, advice and/or assistance.

2.6     If the Goods are to be manufactured or any process is to be applied to the Goods by OWS in accordance with a specification, the Customer shall indemnify OWS against all 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), damages, costs and expenses suffered or incurred by OWS in connection with any claim for actual or alleged infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from OWS' use of the specifications. This paragraph 2.6 shall survive termination of the Contract.

3.      orders

3.1     Orders shall be given by the Customer in writing or by written acceptance of OWS' quotation. OWS may accept or decline any Order at its sole absolute discretion. OWS may, at its discretion, accept an amendment to any Order received from the Customer.

3.2     No order placed by the Customer shall be deemed to be accepted by OWS until a Contract is issued by OWS or (in the absence of a Contract) the Goods are despatched.

3.3     OWS shall assign an order number to each Order it accepts and notify where necessary the order number to the Customer. Each party shall use the relevant order number in all subsequent correspondence relating to the Order.

3.4     After accepting an Order, OWS shall as soon as is practicable inform the Customer of OWS' estimated delivery date for the Order.

3.5     The Customer is responsible for ensuring that Orders and any applicable specification are complete and accurate. The Customer shall give OWS all necessary information relating to the Goods that OWS requires in order to fulfil each Order. The Customer shall promptly respond to all communication and requests from OWS in relation to an Order.

3.6     No Order which has been accepted by OWS may be cancelled by the Customer except with the written agreement of OWS and on the terms that the Customer shall indemnify OWS in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by OWS as a result of cancellation.

4.       DELIVERY

4.1     Unless otherwise agreed in writing by OWS, OWS shall ensure that each delivery of Goods is accompanied by a delivery note which shows order number, the type and quantity of Goods (including the code number of the Goods, where applicable), special storage instructions (if any or so required) and, if the relevant Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered and any other information that it deems necessary.

4.2    OWS shall endeavour to deliver Goods to the Delivery Location on the relevant delivery date. The Customer shall collect Goods from the Delivery Location within five Business Days of OWS notifying the Customer that such Goods are ready for collection.

4.3     Delivery is completed on the completion of unloading of the Goods at the Delivery Location.

4.4     The Customer shall provide at the Delivery Location and at its expense, adequate and appropriate equipment and manual labour for unloading the Goods.

4.5    Delivery dates are approximate only, and the time of delivery is not of the essence. If not dates are so specified, delivery shall be within a reasonable time.

4.6     OWS shall not be liable for any delay in delivery of any Goods that is caused by or arises as a result of:

4.6.1     a Force Majeure Event; or

4.6.2     the Customer's failure to provide OWS with adequate or clear delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.7     If OWS fails to deliver Goods by the relevant delivery date for reasons other than those listed in paragraph 4.6, 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.

4.8     If within 10 Business Days after the day on which OWS attempted to make delivery of Goods, the Customer has not taken delivery, OWS 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.

4.9     If OWS delivers up to and including 10% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.

4.10   OWS may deliver Orders by instalments, which shall be invoiced and paid for separately. The Customer may not cancel an instalment because of any delay in delivery or defect in another instalment.

5.       Quality of Goods and liABILITY

5.1     OWS warrants to the Customer that the Goods will materially conform with the specification.

5.2   Except in respect of death or personal injury caused by OWS' negligence, OWS shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of these Conditions, for any loss of anticipated savings, business revenues, or profits (whether categorised as direct or indirect) or any indirect, special or consequential loss (including losses arising from business interruption, wasted management time, loss of goodwill, data and all other such loss whether or not arising in the normal course of business), damages, costs, expenses or other claims (whether caused by the negligence of OWS, its employees, staff or agents or otherwise) which arise out of or in connection with the provision of the Goods or their use by the Customer.

5.3     The entire liability of OWS to the Customer under or in connection with the Contract shall not in any event exceed the amount of the Price paid by the Customer for the provision of the Goods under this Contract.

5.4     The Customer agrees to indemnify and keep OWS fully indemnified from and against any loss, claim or liability whatsoever incurred or suffered by OWS as a result of negligence or any default by the Customer (or its employees, agents or representatives) of its obligations however arising in connection with the Goods, together with expense, claim, loss or damage which OWS (or any of its employees, agents, sub-contractors and other Customers) may suffer due to the negligence of the Customer (or its employees, agents or subcontractors). The provisions of this paragraph shall survive the expiration or termination of this Contract.

5.5     The Customer agrees and acknowledges that the allocation of risk in this paragraph 5 is fair and reasonable in the circumstances having been taken into account in setting the level of the Prices.

5.6     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.

5.7     These Conditions shall apply to any repaired or replacement Goods supplied by OWS.

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 earlier of:

6.2.1     OWS receives payment in full (in cleared and immediately available funds) for the Goods and any other goods that OWS has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums

6.2.2     the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in paragraph 6.4.

6.3     Until title to the Goods has passed to the Customer, the Customer shall:

6.3.1     store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as OWS' property;

6.3.2     not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

6.3.3     not encumber or in any way charge any of the goods;

6.3.4     maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery OR collection;

6.3.5     notify OWS immediately after it becomes or is likely to become subject to any of the events listed in paragraph 10; and

6.3.6     give OWS such information relating to the Goods, delivery or collection or any other matter relating to this contract as OWS may require from time to time.

6.4    Subject to paragraph 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before OWS receives payment for the Goods. However, if the Customer resells the Goods before that time:

6.4.1     it does so as principal and not as OWS' agent; and

6.4.2     title to the Goods shall pass from OWS to the Customer immediately before the time at which resale by the Customer occurs.

6.5     If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in paragraph 10.1, then, without limiting any other right or remedy OWS may have:

6.5.1     the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and

6.5.2     OWS shall be entitled to:

(a)     recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from OWS; or

(b)    require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product, 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 and recover them.

6.6     The Customer grants OWS, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them or, where the Customer's right to possession has terminated in accordance with paragraph 10.3.3, to recover them.

6.7     Where OWS is unable to determine whether any Goods are the goods in respect of which the Customers right to possession has terminated, the Customer is deemed to have sold all such goods corresponding to the Goods supplied by OWS.

7.       NON DELIVERY AND CONDITION

7.1    The quantity and condition of any consignment of Goods as recorded by OWS upon despatch from OWS place of business (or any other premises used by OWS for the purpose of storing the Goods) shall be conclusive evidence of the quantity and condition of the Goods received by the Customer on delivery unless the Customer can provide to OWS satisfaction conclusive evidence proving the contrary.

7.2     OWS shall not be liable for any non-delivery or poor condition of Goods (even if caused by OWS' negligence) unless the Customer gives written notice to OWS of the non-delivery or poor condition (with sufficient detail) within 24 hours of delivery.

7.3     Any liability of OWS for non-delivery or poor condition of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods. Any delay in the delivery or non-delivery of the Goods (even if caused by OWS' negligence) shall not entitle the Customer to terminate or rescind the Contract.

8.       PRICE AND PAYMENT

8.1     The price of the Goods shall be the price set out in the Contract, or, if no price is quoted, the price set out in the Order or in OWS' published price list in force as at the date of delivery.

8.2     OWS may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

8.2.1     any factor beyond OWS' control (including foreign exchange fluctuations, increases in taxes and duties, increases in labour, materials or other manufacturing costs);

8.2.2     any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the specification; or

8.2.3   any delay caused by any instructions of the Customer or failure of the Customer to give OWS adequate or accurate relevant information or instructions.

8.3     The Price of the Goods:

8.3.1     excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to OWS at the prevailing rate, subject to the receipt of a valid VAT invoice; and

8.3.2    excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer separately.

8.4     OWS shall invoice the Customer for the Price on or at any time after delivery. The Customer shall pay the Price within the time period specified on the invoice or as agreed in the customer credit terms.† No payment shall be deemed to have been received until OWS has received cleared funds. Payments shall be made to the bank account nominated in writing by OWS. Time of payment is of the essence.

8.5     If the Customer fails to make any payment due to OWS under the Contract by the due date for payment, then:

8.5.1     the Customer shall pay interest on the overdue amount at the annual rate of the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment, together with all costs and expenses incurred by OWS in recovering late payment. The Customer shall pay the interest together with the overdue amount; and/or

8.5.2     at Customer's election, condition 6.5.2(b) shall apply.

8.6     The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). OWS 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 OWS to the Customer.

8.7     OWS may, at its sole discretion (but shall be under no obligation to), offer a credit limit to the Customer.† If the Customer exceeds the credit limit and fails to make payment of the excess on demand, OWS reserves the right to suspend or cancel performance of any and / or all Contracts.

9.       LIMITATION OF LIABILITY

9.1     Nothing in these Conditions shall limit or exclude OWS' liability for:

9.1.1     death or personal injury caused by its negligence; or

9.1.2     fraud or fraudulent misrepresentation.

9.2     Subject to paragraph 9.1 and to the fullest extent permitted by law:

9.2.1    OWS shall not be liable under any circumstances whatsoever, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any direct or indirect or consequent loss, including without limitation any loss of profit, loss of business, depletion or goodwill or any similar loss, costs, expenses, damages, charges arising under or in connection with the Contract; and

9.2.2     OWS' total liability to the Customer arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, shall be limited to and in no circumstances exceed the Contract price.

10.     Termination

10.1   Without limiting its other rights or remedies, OWS may terminate this Contract with immediate effect by giving written notice to the Customer if:

10.1.1  the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 10 days after being notified of such failure in writing;

10.1.2   the Customer commits a material breach of any other term of the Contract and the Conditions; or

10.1.3  the Customer repeatedly breaches any of the terms of the Contract and these Conditions in such a manner as to justify in the opinion of OWS that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract.

10.1.4  the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

10.1.5   the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

10.1.6   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

10.1.7  the Customer (or any of its employees, agents, officers or representatives) engages in any conduct in the opinion of OWS that is prejudicial to the interests of OWS or its business or in the event that a conflict or a potential conflict has arisen between the parties or any other relevant third party.

10.2   Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

10.3   On termination of the Contract for any reason:

10.3.1   OWS' obligation to fulfil any outstanding Order or to continue to provide services under this Contract shall immediately cease;

10.3.2   the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest;

10.3.3   deliver up to OWS all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, OWS shall have the right to enter any premises of the Customer or of any third party where the Goods are stored and recover such Goods; and

10.3.4   the following paragraphs shall continue in force: paragraph 13 (Confidentiality), paragraph 9 (Limitation of liability), paragraph 14.4 (Notices) and paragraph 15 (Governing law and jurisdiction).

11.     right to first match

In the event the Customer wishes to engage a Competitor to provide Goods equivalent or similar to the Goods, the Customer shall first give written notice to OWS of its intention to engage the Competitor, provide in writing the proposed goods to be provided by the Competitor to the Customer and fees to be charged by the Competitor to the Customer for such Goods (the ìProposed Termsî) and grant OWS a right to match the Proposed Terms.

12.     FORCE MAJEURE

OWS reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer, but in any event, shall not be liable to the Customer or be deemed to be in breach of the Contract if it is prevented from, or delayed in, carrying out its obligations under the Contract by reason of a Force Majeure Event.

13.     confidentiality

13.1   Each party agrees to keep confidential all Confidential Information obtained from the other both pursuant to the Contract and prior to and in contemplation of it and all other information that it may acquire from the other in the course of the Contract, to use such Confidential Information exclusively for purposes of or as contemplated by the Contract and to disclose such information only to those of its employees, sub-contractors and professional advisers pursuant to the Contract to whom and to the extent that such disclosure is reasonably necessary for the purposes of or as contemplated by the Contract.

13.2   Paragraph 13.1 shall not apply to any information which:

13.2.1   prior to the receipt from one party was in the lawful possession of the other without any restriction on its disclosure or use;

13.2.2   is subsequently lawfully disclosed to the recipient party without any obligations of confidence by third party who has not derived it directly or indirectly from the other party;

13.2.3   is or becomes generally available to the public through no act or default of the recipient party; or

13.2.4   is required to be disclosed by and Order of a Court or any regulatory or government body/authority of competent jurisdiction.

13.3  Each party shall procure that all of its employees, agents, professional advisers and sub-contractors who have access to any Confidential Information of the other to which paragraph 13.1 applies shall be made aware of and subject to obligations in all respects consistent with the above obligations against such employees, agents, professional advisers and sub-contractors.

13.4  For the avoidance of doubt, each party is aware that during this Contract they may have access to and be entrusted with Confidential Information of the other party. Neither party shall during or after this Contract divulge to any person whomsoever or otherwise make use of (and shall use its best endeavours to prevent the publication or disclosure of) any confidential information of the other party.†

13.5   The provisions of this paragraph shall survive the expiration or termination of this Contract.

14.     GENERAL

14.1  These Conditions (together with the terms (if any) set out in the Contract) constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

14.2   No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

14.3   Any quotation is given on the basis that no Contract shall come into existence until OWS issues a Contract to the Customer confirming the quotation or (in the absence of a Contract) despatches the Goods.

14.4   No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

14.5   Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at the address set out in the Contract or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

14.6   If any provision of the Contract and these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected. If one party gives notice to the other of the possibility that any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

14.7   No third party rights are intended to be conferred or created by the Contract or any Schedule except as otherwise provided or expressly intended. Except as otherwise referred to or intended in these Conditions, no person who is not a party to the Contract shall have the right under the Contract (Rights of Third Parties) Act 1999 to enforce any of its terms.

14.8   The Customer undertakes and warrants to OWS that it shall at all times act in good faith towards OWS in respect of the provisions of the Contract and shall not in any manner attempt to circumvent or directly or indirectly circumvent the operation of the Contract and any rights, entitlements or protections granted under the Contract together with any of the transactions contemplated by the Contract so as to deprive OWS of any rights, protections or benefit under the Contract.

14.9   The rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

14.10 This Contract may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one Contract.

14.11 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

14.12 The Customer shall not be entitled to assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.

14.13 OWS may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

15.     Governing law and jurisdiction

15.1  This 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 law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

15.2   The provisions of this paragraph shall survive the expiration or termination of this Contract.