Conditions
of Sale

In these Conditions the following definitions apply:

Affiliate means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;

Applicable Law means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national;

Business Day means a day other than a Saturday, Sunday or bank or public holiday;

Conditions means the Supplier's terms and conditions of sale set out in this document;

Confidential Information means any commercial, financial or technical information, information relating to the Deliverables, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by the Supplier in performing its obligations under, or otherwise pursuant to the Contract;

Contract means this agreement between the Supplier and the Customer for the sale and purchase of the Deliverables incorporating these Conditions and the Order, and including all its schedules, attachments, annexures and statements of work;

Control has the meaning given to it in section 1124 of the Corporation Tax Act 2010 and Controls, Controlled and under common Control shall be construed accordingly;

Customer means the named party in the Contract which has agreed to purchase the Deliverables from the Supplier and whose details are set out in the Order;

Customer's Fixtures and tooling means the fixtures and tooling of the Customer supplied by the Customer to the Supplier but this excludes any fixtures and tooling produced by the Supplier for the Customer;

Customer's Tooling means the tooling of the Customer;

Deliverables means the Goods or Services or both as the case may be;

Documentation means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Deliverables;

Force Majeure means any act, event, omission or accident beyond the reasonable control of a party, which prevents it from, or delays it in, performing its obligations under the Contract, including acts of God, flood, earthquake, windstorm or other natural disaster; war, armed conflict or the threat or preparation for either; imposition of sanctions, embargo or breaking off of diplomatic relations; terrorist attack, civil war, civil commotion or riot; nuclear, chemical or biological contamination or sonic boom; epidemic or pandemic; fire or explosion; loss at sea; adverse weather; any labour dispute (other than by the party relying on it); non-performance by suppliers or sub-contractors; collapse of building structures; failure of plant, machinery, computers or vehicles; interruption or failure of utility service; accidental damage; any law or governmental order; or any action taken by a government or public authority including lockdowns and export or import restrictions; but does not include any obligation of the Customer to pay the Price;

Goods means the goods (including but not limited to castings and dies) and related accessories, spare parts and Documentation and other physical material set out in the Order or understood by the parties to be included in the Goods and to be supplied by the Supplier to the Customer in accordance with the Contract;

Intellectual Property Rights means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights, whether registered or not, including applications, renewals and extensions, whether vested, contingent or future, to which the relevant party is or may be entitled, in whichever part of the world existing;

Location means the address or addresses for delivery of the Goods and performance of the Services as set out in the Order, or such other address as notified by the Supplier to the Customer at least 5 Business Days prior to delivery;

Order means the Customer's purchase order for the Deliverables quoting the Supplier's reference number;

Price has the meaning given in clause 3.1;

Services means the services set out in the Order and to be supplied by the Supplier to the Customer in accordance with the Contract;

Specification means the description provided for the Deliverables set out or referred to in the Contract;

Supplier means Numachine Limited;

Supplier Personnel means all employees, officers, staff, other workers, agents and consultants of the Supplier, its Affiliates and any of their sub-contractors;

VAT means value added tax under the Value Added Tax Act 1994 or any other similar sale or fiscal tax applying to the sale of the Deliverables.

In these Conditions, unless the context otherwise requires: a reference to the Contract includes these Conditions, the Order and their respective schedules; a reference to a party includes that party's personal representatives, successors and permitted assigns; words in the singular include the plural and vice versa; words following "include", "including", "in particular" or similar are illustrative only; a reference to "writing" or "written" includes any legible non-transitory form (excluding email); and a reference to legislation is to that legislation as amended, except to the extent an amendment would increase or alter a party's liability.

These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.

No terms endorsed on, delivered with, or contained in the Customer's purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent the Supplier agrees in writing.

No variation of these Conditions, an Order or the Contract is binding unless expressly agreed in writing and executed by a duly authorised signatory of each party.

Each Order shall be an offer to purchase the Deliverables subject to the Contract including these Conditions. If the Supplier is unable to accept an Order it shall notify the Customer as soon as reasonably practicable; the Supplier is under no obligation to accept an Order.

An Order remains capable of acceptance for 7 Business Days from submission, after which it automatically lapses. The Supplier may accept or reject an Order at its discretion. No binding obligation arises until the earlier of the Supplier's written acceptance (an email acknowledgment being sufficient) or the Supplier delivering or performing the Deliverables or notifying the Customer they are ready.

Rejection of an Order does not constitute a counter-offer. Quotations are invitations to treat only, are incapable of acceptance, and expire within 30 days of their date. Marketing and promotional material is illustrative only and does not form part of the Contract. The Supplier does not warrant that all listed goods will be available at all times.

The price for the Deliverables shall be as set out in the Order or, where none is set out, as advised by the Supplier before the Order is placed (the Price).

The Prices are exclusive of: packaging, delivery (unless otherwise agreed the Supplier delivers Ex Works (Incoterms 2020) for collection), insurance, shipping, carriage and all other related charges or taxes; the storage and insurance of the Customer's Tooling and the Customer's fixtures and tooling; and VAT. The Customer shall pay any applicable VAT.

The Supplier may increase the Prices on not less than 15 Business Days' written notice provided the increase does not exceed 5% of the Price then in effect. Notwithstanding this, the Supplier may increase Prices with immediate effect where there is an increase exceeding 5% in the direct cost of supply due to any factor beyond the Supplier's control.

Unless otherwise agreed in writing, all Prices of the Goods are for the Goods unmachined and self-coloured.

The Supplier may invoice the Customer for the Deliverables, partially or in full, at any time following acceptance of an Order, and may invoice in stages as described in the Order.

The Customer shall pay all invoices in full without deduction or set-off, in cleared funds within 30 days of the invoice date, to the bank account nominated by the Supplier.

Time of payment is of the essence. Where sums are not paid in full by the due date, the Supplier may charge interest at 4% a year above the base rate of National Westminster Bank plc, accruing daily from the due date until payment in full, whether before or after judgment.

Credit limit. The Supplier may set and vary credit limits from time to time and withhold further supplies if the Customer exceeds such limit.

Unless otherwise agreed, the Supplier shall deliver the Goods Ex Works (Incoterms 2020) for collection from the Supplier's premises or other notified location. The Customer shall collect during working hours at an agreed time within 5 Business Days of the notice that Goods are available. Loading at collection is at the cost and risk of the Customer.

Where the Supplier arranges delivery, Goods are deemed delivered on arrival at the Location. Where the Customer arranges delivery, Goods are deemed delivered on completion of loading. Services are performed at the Location on the specified dates and are deemed delivered only on completion of performance.

The Customer may not reject a delivery on the basis of an incorrect volume. Any variation within 5% above or below the ordered quantity is not a failure to supply, provided the Supplier only invoices for, and the Customer only pays for, the quantity actually delivered.

The Supplier may deliver in instalments; a delay or defect in one instalment does not entitle the Customer to cancel others. Each delivery is accompanied by a delivery note stating the Price, Order date, description and quantity (Goods) or category and quantity (Services), special instructions, and any packaging to be returned.

Time is not of the essence for delivery or performance. The Supplier shall use reasonable endeavours to meet estimated dates, but such dates are indicative only. The Supplier is not liable for delay or failure caused by the Customer's failure to make available or prepare the Location, provide adequate instructions, or collect the Goods; by Force Majeure; or by the Customer's lack of co-operation.

If the Customer fails to collect or accept delivery, the Supplier may store and insure the Goods at the Customer's cost. If 30 Business Days after the due date the Customer has not taken delivery, the Supplier may resell or dispose of the Goods, deducting storage, insurance and resale costs and accounting to the Customer for any excess or invoicing any shortfall.

Where the Supplier uses the Customer's Tooling, the Customer shall ensure each item is clearly identified as belonging to the Customer. Where such tooling is unused for 12 continuous months, the Supplier may charge for storage and insurance. During the Contract the Supplier stores the Customer's fixtures and tooling at its own cost (subject to the Customer being liable for replacement and repair due to wear and tear), for a maximum of 3 years from completion of the Order, after which the Supplier may return or dispose of them without liability. Title to fixtures and tooling produced by the Supplier does not pass to the Customer until the Supplier has received payment.

Risk in the Goods passes to the Customer on delivery when transferred to the carrier. Where the Customer arranges its own delivery, risk passes when the Goods are ready for loading.

Title to the Goods passes to the Customer once the Supplier has received payment in full and in cleared funds for all debts owed by the Customer (including payment for the Goods).

Until title passes, the Customer shall: hold the Goods as bailee for the Supplier; store them separately; take reasonable care of them; insure them from delivery with a reputable insurer against all risks for at least their Price, noting the Supplier's interest; ensure they are clearly identifiable as the Supplier's; not remove or alter any mark or packaging; inform the Supplier immediately of any insolvency event; and permit inspection on reasonable notice.

The Customer may use or resell the Goods in the ordinary course of business until it becomes aware of a relevant insolvency event, at which point title passes to the Customer immediately before resale. If, before title passes, the Customer becomes subject to (or the Supplier reasonably believes it will become subject to) an insolvency event, the Supplier may require re-delivery at the Customer's expense and, failing that, enter premises to repossess the Goods.

Where a sample has been produced and approved by the Supplier, the Customer shall have no claim against the Supplier for manufacturing the Goods based on that sample. Where samples are to be provided, the Supplier provides them for inspection and does not commence manufacture until the Customer approves in writing (approval not to be unreasonably withheld or delayed).

If the Customer does not approve a sample, it shall give reasons; any changes required are at the Customer's cost. Approval constitutes irrevocable confirmation that Goods manufactured in conformity with the sample comply in material respects (or differing only within normal industry limits) with the Specifications.

The Supplier shall ensure that, at delivery, the Goods conform in material respects to the Specifications and are free from material defects in design, material and workmanship. Small adjustments, alignments and distortions within permitted tolerance or normal industry limits are not material defects.

The Customer shall make every effort to ascertain defects as soon as possible after delivery. The Customer may reject non-conforming Goods provided it serves written notice within three Business Days of delivery (for defects discoverable on inspection) or within a reasonable time (for latent defects), specifying the nature and extent of the defects, and giving the Supplier a reasonable opportunity to examine the claim.

If the Customer fails to reject within the time allowed, the Goods are deemed accepted and, to the fullest extent permitted by law, the terms implied by sections 13–15 of the Sale of Goods Act 1979 are excluded. If the Customer validly rejects, the Supplier's sole remedy is, at the Supplier's option, to re-work, correct, repair, replace or refund.

The Supplier is not liable for failure to comply where this arises from wear and tear, wilful damage or negligence; the Customer's failure to follow instructions; the Supplier following the Customer's specification or requirement; unauthorised modification or repair; or use after notification of non-compliance. Except as set out in this clause, all warranties and conditions implied by statute or common law (including ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979) are excluded to the extent permitted.

Each party shall notify the other in writing of any required changes to the Specifications; changes and the basis for compensating the Supplier's costs shall be agreed, both acting reasonably. A change may increase the Price. The Supplier may change the Goods or Specifications on 30 Business Days' notice (not affecting Orders already placed). The Customer shall disclose, at its own cost, information necessary to enable manufacture in accordance with the Specifications, and warrants that any fixtures and tooling it provides are in good condition, precise and suitable for production.

The Customer shall indemnify and keep indemnified the Supplier against any losses, damages, liability, costs (including legal fees) and expenses arising from the Customer's breach of its obligations under the Contract.

The Customer shall maintain insurance with reputable UK insurers (or otherwise agreed in writing) to cover its obligations under the Contract, and shall on request supply reasonable evidence of that insurance.

The extent of the parties' liability under or in connection with the Contract (whether in tort, contract or otherwise and whether or not caused by negligence or misrepresentation) is as set out in this clause.

Subject to the exceptions below, the Supplier's total liability (including for its employees, agents and sub-contractors) shall not exceed £2,000,000.00.

Subject to the exceptions below, the Supplier shall not be liable for consequential, indirect or special losses, nor for any of the following (whether direct or indirect): loss of profit; loss or corruption of data; loss of use; loss of production; loss of contract; loss of opportunity; loss of savings, discount or rebate; or harm to reputation or loss of goodwill. The Supplier is not liable for the acts or omissions of any sub-contractor, including one the Customer recommended or required.

Nothing in the Contract limits liability for: death or personal injury caused by negligence; fraud or fraudulent misrepresentation; any losses which cannot be excluded by Applicable Law; or wilful misconduct.

The Customer shall indemnify the Supplier against any losses arising from any claim that use of the Customer's Tooling or fixtures and tooling, or delivering the Goods or Services, infringes a third party's Intellectual Property Rights.

Except as expressly set out, no Intellectual Property Rights are transferred or licensed under the Contract. All rights in the Customer's Tooling and fixtures and tooling remain the Customer's (or its licensor's), and the Customer grants the Supplier a non-exclusive, royalty-free licence (with the right to sub-license to sub-contractors) to use them as necessary to perform the Contract.

All rights in any software used by the Supplier (including Magna software) remain the Supplier's (or its licensor's); the Customer acquires no rights to any computer models or drawings provided by the Supplier. The Supplier grants the Customer a non-exclusive, fee-paid licence to use rights in any modification the Supplier makes to the Customer's Tooling.

The Customer shall keep confidential all Confidential Information of the Supplier and its Affiliates, and use it only to perform the Contract. This does not apply to information already public, information that becomes public other than through breach, information independently developed without using the Supplier's information, or disclosure required by law or a regulatory authority.

This clause remains in force for 10 years from the date of the Contract and, if longer, 10 years after termination. The Customer shall not make any public announcement or disclose information regarding the Contract except as required by law or a regulatory authority.

Where a Force Majeure event occurs or is reasonably likely to occur, a party is not liable to the extent it is delayed in or prevented from performing its obligations, and those obligations are suspended for the duration, provided it promptly notifies the other party of the event and its expected duration, uses reasonable endeavours to minimise its effects, and keeps the other party informed. Where the other party depends on the affected party's performance, its obligations are also suspended as applicable.

If, due to Force Majeure, a party is or is likely to be unable to perform, or is delayed or prevented for a continuous period of 90 days, the parties aim to renegotiate in good faith to achieve as nearly as possible the original commercial intent. If they cannot renegotiate within a reasonable time, either party may terminate on written notice.

The Supplier may terminate the Contract (or any other contract with the Customer) on written notice if the Customer: commits a non-remediable material breach; commits a material breach not remedied within 14 days of notice; fails to pay any amount due and it remains unpaid 30 days after notice; or has a consent, licence or authorisation revoked or modified such that it can no longer comply.

Either party may terminate on written notice if the other stops (or intends to stop) carrying on a significant part of its business, is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, enters a company voluntary arrangement, has a receiver, manager, administrator or administrative receiver appointed, passes a resolution for winding up, has a winding-up or administration petition or order, is subject to enforcement against its goods not discharged within seven days, has a freezing order, is subject to retention-of-title recovery, or is subject to any analogous event in any jurisdiction.

The Supplier may terminate on not less than four weeks' notice if the Customer undergoes (or is realistically anticipated within two months to undergo) a change of Control. The right to terminate for insolvency does not apply where the relevant procedure is for a solvent amalgamation, reconstruction or merger where the resulting party adheres to the Contract.

The Supplier may suspend supply or manufacture if the Customer becomes (or the Supplier reasonably believes it is about to become) subject to an insolvency event, or has not settled the Supplier's invoices. Termination does not affect accrued rights and liabilities. On termination, the Supplier may require the Customer to purchase all stock and work-in-progress (completed within three months), payable within 30 days, and each party shall return the other's property.

Any notice under these Conditions shall be in writing, signed by or on behalf of the party giving it, and sent to the relevant party at the address in the Contract or as otherwise notified in writing. Notices are deemed received: by hand, on signature at the time of delivery; by Royal Mail Recorded Signed For post, at 9.00 am on the second Business Day after posting. This does not apply to notices in legal proceedings or arbitration. A notice is not validly served if sent by email or fax.

The Supplier's rights and remedies are cumulative and not exclusive of those provided by law. The Contract constitutes the entire agreement and supersedes all previous agreements in respect of its subject matter. Each party acknowledges it has not relied on any representation or warranty not expressly set out, and has no claim for innocent or negligent misrepresentation.

No variation is valid unless in writing, referring to the Contract and these Conditions, and signed by or on behalf of each party. The Customer may not assign, subcontract or encumber any right or obligation without the Supplier's prior written consent; the Supplier may sub-contract any or all of its obligations.

The Supplier may set off any liability or sums it owes the Customer against sums the Customer owes it. The Customer shall pay without set-off, counterclaim, deduction or withholding except as required by law. The parties are independent and the Contract creates no partnership, agency, joint venture or fiduciary relationship.

The Customer acknowledges that a breach may cause the Supplier irreparable harm for which damages may be inadequate, and that the Supplier is entitled to specific performance, injunction and other equitable relief without proof of special damages. If any provision is or becomes illegal, invalid or unenforceable, the remaining provisions are unaffected. No failure or delay by the Supplier in exercising a right operates as a waiver.

Except as expressly provided, a person who is not a party has no rights under the Contracts (Rights of Third Parties) Act 1999, save that any Affiliate of the Supplier may enforce the provisions of the Contract (and no such Affiliate's consent is required to rescind or vary it).

The Contract and any dispute or claim arising out of it (including non-contractual disputes) are governed by the laws of England and Wales, and the parties irrevocably agree that the courts of England and Wales have exclusive jurisdiction.