EV Products (T/A Subsidiary of Kromek plc) Standard Terms and Conditions of Purchase

1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

Definitions and are not subject to modification or default substitution under the Commercial Code of any jurisdiction.  All such terms are deemed accepted and controlling unless the Supplier proposes alternative terms which are expressly accepted, in writing, by Customer

Interpretation:

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

A reference to a party includes its successors and Customer permitted assigns.

A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

A reference to a holding company or subsidiary means a holding company or a subsidiary as defined by any applicable law of the Controlling Jurisdiction.

A reference to writing or written includes email.

2. Basis of contract

2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services from the Supplier in strict accordance with these Conditions.

2.2 The Order shall be deemed to be accepted on the earlier of:

2.2.1 the Supplier issuing written acceptance of the Order; or

2.2.2 any act by the Supplier consistent with fulfilling the Order,

at which point and on which date the Contract shall come into existence (Commencement Date). If the Order has not been accepted or deemed accepted by the date 30 (thirty) days after it is issued then the Order and the offer constituted by it shall lapse at the end of that 30 (thirty) day period.

2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice, or course of dealing.  For clarity, a conflict if forms shall not trigger what is commonly known as the “knock out rule” under the UCC.  If Supplier does not accept Customers Conditions then Supplier must make such concerns plain to Customer and there shall be no Contract absent a negotiated and documented adjustment to Customer’s Conditions.

2.4 All these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.

3. Supply of Goods

3.1 The Supplier shall ensure that the Goods shall:

3.1.1 correspond with their description and the applicable Goods Specification;

3.1.2 be of satisfactory quality  and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer, expressly or by implication, and in this respect the Customer relies on the Supplier’s skill and judgement;

3.1.3 where they are manufactured products, be free from defects in design, materials and workmanship and remain so for 12 (twelve) months after delivery and acceptance by Customer;

3.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling, and delivery of the Goods; and

3.1.5 be accompanied at all times (including during shipping to the Customer) until delivery to the Customer by all documents required by any and all applicable export laws, statutes, regulations and codes from time to time in force and that such documents shall be fully and properly completed and delivered to the Customer on delivery with the Goods.

3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.

3.3 The Customer may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract.

3.4 If following such inspection or testing the Customer considers that the Goods do not comply or are unlikely to comply with the Supplier’s undertakings at clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.

3.5 The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.

4. Delivery of Goods

4.1 The Supplier shall ensure that:

4.1.1 (without prejudice to any packaging obligations imposed on the Supplier pursuant to DDP Delivery Location (Incoterms 2020 Rules)) the Goods are properly packed and secured in such manner as to enable them to reach the Delivery Location in good condition;

4.1.2 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

4.1.3 it states clearly on the delivery note any requirement for the Customer to return any packaging material for the Goods to the Supplier. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.

4.2 The Supplier shall deliver the Goods DDP Delivery Location (Incoterms 2020 Rules):

4.2.1 on the date specified in the Order or, if no such date is specified, then within 30 (thirty) days of the date of the Order; and

4.2.2 during the Customer’s normal hours of business on a Business Day, or as instructed by the Customer.

Time of delivery of the Goods is of the essence.

4.3 Without prejudice to and without limiting any obligation on the Customer to provide assistance to the Supplier in obtaining any required import licence or other official authorisation for the import of the Goods, the Customer shall complete and deliver to the Supplier within a reasonable period after the Commencement Date an Export End User Undertaking where required for the purpose of any export licence required by the Supplier in relation to the Goods.

4.4 If the Supplier:

4.4.1 delivers less than 95% of the quantity of Goods ordered, the Customer may accept the quantity delivered or may reject all the Goods; or

4.4.2 delivers more than 105% of the quantity of Goods ordered, the Customer may at its sole discretion reject the excess Goods,

and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and the Customer accepts the excess delivery, the Supplier shall make a pro rata adjustment to the invoice for the Goods.

4.5 The Supplier shall not deliver the Goods in instalments without the Customer’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle the Customer to the remedies set out in clause 6.1 or otherwise available in law or equity.

4.6 Title in the Goods shall pass to the Customer on completion of delivery and acceptance. Risk in the Goods shall pass to the Customer after acceptance.

5. Supply of Services

5.1 The Supplier shall from the date set out in the Order and for the duration of the Contract supply the Services to the Customer in accordance with the terms of the Contract.

5.2 The Supplier shall meet any performance dates for the Services specified in the Order or that the Customer notifies to the Supplier and time is of the essence in relation to any of those performance dates.

5.3 In providing the Services, the Supplier shall:

5.3.1 co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;

5.3.2 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade – or at a higher standard as may have been represented and established by Supplier during negotiations;

5.3.3 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;

5.3.4 ensure that the Services will conform with all descriptions, standards and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that the Customer expressly or impliedly makes known to the Supplier, which descriptions, standards and specifications are incorporated herein by reference as through fully stated again at length;

5.3.5 provide all equipment, tools and vehicles and such other items as are required to provide the Services;

5.3.6 use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;

5.3.7 obtain and at all times maintain all licences and consents which may be required for the provision of the Services;

5.3.8 observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises;

5.3.9 hold all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier (Customer Materials) in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose or use the Customer Materials other than in accordance with the Customer’s written instructions or authorisation;

5.3.10 not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services; and

5.3.11 comply with any additional obligations as set out in the Service Specification.

6. Customer remedies

6.1 If the Supplier fails to deliver the Goods by the applicable date or to perform the Services by the applicable date, or both, the Customer shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights and remedies:

6.1.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;

6.1.2 to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;

6.1.3 to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a third party;

6.1.4 to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided and/or Goods that it has not delivered; and

6.1.5 to claim damages for any additional costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier’s failure to meet such dates.

6.2 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting or affecting other rights or remedies available to it, the Customer shall have one or more of the following rights and remedies, whether or not it has accepted the Goods:

6.2.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;

6.2.2 to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;

6.2.3 to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);

6.2.4 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;

6.2.5 to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute goods from a third party; and

6.2.6 to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier’s failure to supply Goods in accordance with clause 3.1.

6.3 If the Supplier has supplied Services that do not comply with the requirements of clause 5.3.4 then, without limiting or affecting other rights or remedies available to it, the Customer shall have one or more of the following rights and remedies:

6.3.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;

6.3.2 to return the Deliverables to the Supplier at the Supplier’s own risk and expense;

6.3.3 to require the Supplier to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services (if paid);

6.3.4 to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;

6.3.5 to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute services or deliverables from a third party; and

6.3.6 to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier’s failure to comply with clause 5.3.4.

6.4 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.

6.5 The Customer’s rights and remedies under the Contract are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.

7. Customer’s obligations

7.1 The Customer shall provide:

7.1.1 the Supplier with reasonable access at reasonable times to the Customer’s premises for the purpose of providing the Services; and

7.1.2 such necessary information for the provision of the Services as the Supplier may reasonably request.

8. Charges and payment

8.1 The price for the Goods:

8.1.1 shall be the price set out in the Order, or if no price is quoted, the price set out in the Supplier’s published price list in force at the Commencement Date; and

8.1.2 shall be inclusive of the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by the Customer.

8.2 The charges for the Services shall be set out in the Order and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by the Customer, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.

8.3 In respect of the Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services. Each invoice shall include such supporting information required by the Customer to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.

8.4 In consideration of the supply of Goods and/or Services by the Supplier, the Customer shall pay the invoiced amounts within 60 (sixty) days of receipt of the correctly rendered invoice to a bank account nominated in writing by the Supplier.

8.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of valued added tax, sales tax, or similar chargeable government imposed obligation on the transaction from time to time (collectively “Transaction Taxes”) which shall be invoiced and paid separately.

8.6 If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each date at 2% (two per cent) a year above the Wall Street Journal commercial “prime rate” as published on the first publishing day of each month, but in no event less than 2%…

8.7 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Customer to inspect such records at all reasonable times on request.

8.8 The Customer may at any time, without notice to the Supplier, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier.

9. Intellectual property rights

9.1 All Intellectual Property Rights arising out of or in connection with the Services or Deliverables (other than Supplier Background Intellectual Property Rights) shall be deemed work for hire and be owned by the Customer.

9.2 Where unclear whether specific intellectual property rights are properly deemed works for hire, the Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to use, copy and modify the Supplier Background Intellectual Property for the purpose of receiving and using the Services and the Deliverables and for the purpose of receiving and using the Goods.

9.3 The Customer may sub-licence the rights granted in clause 9.2 to any company which is a member of the Customer’s Group from time to time and to the Customer’s customers or other third parties using the Deliverables or Goods with the permission of the Customer.

9.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to use any materials provided by the Customer to the Supplier for the term of the Contract plus ten (10) years, for the purpose of providing the Services or manufacturing and supplying the Goods to the Customer to the extent the Customer is lawfully able in the case of any Intellectual Property Rights licensed to it by any third party.

9.5 All Customer Materials and all Intellectual Property Rights therein are the exclusive property of the Customer or its licensors.

10. Indemnity

10.1 The Supplier shall indemnify the Customer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with:

10.1.1 any claim made against the Customer for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods and/or Deliverables, or receipt, use or supply of the Services (excluding the Customer Materials);

10.1.2 any claim made against the Customer by a third party, including but not limited to employees or deemed employees of Supplier or Supplier’s agents and contractors, for death, personal injury or damage to property arising out of Services, or in connection with, defects in the Goods, as delivered, or the Deliverables; and

10.1.3 any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Deliverables or the Services.

10.2 This clause 10 shall survive termination of the Contract.

11. Insurance

During the term of the Contract and for a period of eight (8) years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.  Customer shall be named as “additional insured” on the certificate of insurances issued to satisfy this obligation.  The amount of this insurance shall be no less than two million dollars ($2,000,000 single/$4,000,000 aggregate, plus costs of defence) or such higher amount as may be designated by Customer.

12. Confidentiality

12.1 Each party undertakes that it shall not at any time during the Contract and for a period of five

12.2 years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.3.

12.3 Each party may disclose the other party’s confidential information:

12.3.1 to its employees, officers, representatives, or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and

12.3.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.4 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

13. Compliance with relevant laws and policies

13.1 In performing its obligations under the Contract, the Supplier shall comply with:

13.1.1 all applicable laws, statutes, regulations, and codes from time to time in force, including any in relation to export control or applicable as a result of the Goods being exported by the Supplier; and

13.1.2 the Mandatory Policies.

14. Termination

14.1 Without affecting any other right or remedy available to it, the Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if:

14.1.1 there is a change of Control of the Supplier; or

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

14.1.3 the Supplier commits a breach of clause 13 (Compliance with relevant laws and policies).

14.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

14.2.1 the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 (fourteen) days after being notified in writing to do so;

14.2.2 the other party 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; or

14.2.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

15. Consequences of termination

15.1 On termination of the Contract, the Supplier shall immediately deliver to the Customer all Deliverables whether or not then complete and return all Customer Materials. If the Supplier fails to do so, then the Customer may peacefully enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

15.2 Termination or expiry of the Contract shall not affect the parties’ rights and remedies that have accrued as at 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.

15.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

16. Force majeure

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party must notify the other within three (3) days (Declaration of Force Majeure), shall be entitled to a reasonable extension of the time thereafter for performing such obligations. If the period of delay or non-performance continues for 3 (three) months beyond the Declaration of Force Majeure, or if earlier it becomes reasonably clear that the affected party will not be able to perform, the party not affected may terminate the Contract by giving 7 (seven) days’ written notice to the affected party.

17. General

17.1 Assignment and other dealings.

17.1.1 The Customer may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under the Contract.

17.1.2 The Supplier shall not assign, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Customer.

17.2 Subcontracting. The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of the Customer. If the Customer consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.

17.3 Notices.

17.3.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

17.3.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); and

17.3.1.2 sent by email to the address for the relevant party specified in the Customer’s Order (or such other email address as may be notified to the other party in accordance with this clause).

17.3.2 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

17.4 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision of the Contract is deemed deleted under this clause 17.4 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

17.5 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

17.6 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorize either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

17.7 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations (excepting Supplier’s representations of competence and expertise) and understandings between them, whether written or oral, relating to its subject matter.

17.8 Third party rights.

17.8.1 Unless it expressly states otherwise, the Contract does not give rise to any rights of third parties to enforce any term of the Contract.

17.8.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

17.9 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties or their authorized representatives.

17.10 Equal Opportunity. The Parties shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.

17.11 Arbitration. Any dispute arising out of or in connection with the Contract or its subject matter or formation shall be referred to and finally resolved by arbitration under Commercial Rules of Arbitration, American Arbitration Association, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be the County seat for Customer’s location. The language to be used in the arbitral proceedings shall be English. Each Party shall be responsible for their own legal fees, costs, and expenses, and an equal share of AAA fees, and arbitrator fees.

17.12 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Customer’s state.

17.13 Jurisdiction. Each party irrevocably agrees that the courts of Customer’s state shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.  In addition, awards of the AAA may be enforced in any jurisdiction where the party owing such award may be located or may maintain assets, and both parties waive the defence of competence or registration to do business in such jurisdiction(s).