GASMET TECHNOLOGIES (UK) LTD (GTUK) CONDITIONS OF SALE OF GOODS AND SERVICES

1. DEFINITIONS

Building: means the Customer’s premises in the United Kingdom and Ireland where the Equipment is installed as provided in the Order.

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for non-automated business.

Business Hours: means 8:00 to 17:00 on Monday to Thursday inclusive and 8:00 to 15:00 on Friday on a Business Day, unless otherwise specified in the Order.

Commencement Date: the date specified in the Order.

Conditions: these terms and conditions as amended from time to time in accordance with paragraph 2.3.

Contract: the contract between GTUK and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or company who purchases the Deliverables from GTUK.

Deliverables: means the Goods or Services or both as the case may be.

Equipment: means each unit of equipment specified in the Order, which may be varied from time to time by mutual agreement of GTUK and the Customer.

Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.

Goods: means the goods and other physical material set out in the Order and to be supplied by GTUK to the Customer in accordance with the Contract.

GTUK: means Gasmet Technologies (UK) Ltd with company number 02301809 whose registered office is at Woolleys Farm, Welford Road, Naseby, Northampton, NN6 6DP.

Initial Term: mean a period of 12 months from and including the Commencement Date.

Location: means the address or addresses for delivery of the Goods and performance of the Services as set out in the Order.

Order: means the Customer’s order for the Deliverables.

Price: has the meaning given in paragraph 6.

Quotation: means a quotation to the Customer from GTUK from time to time, that is an invitation to treat only and not an offer to supply the Deliverables and are incapable of being accepted by the Customer.

Services: means the services set out in the Order and to be supplied by GTUK to the Customer in relation to the Equipment in accordance with the Contract and the Service Specification.

Service Specification: means the description of or specification for the Services including Equipment maintenance provided in writing by GTUK to the Customer.

Term: means the duration of the provision of Services set out in the Order.

Year: means the First Year and any subsequent 12 months period commencing on the anniversary of the Commencement Date.

2. CONTRACT TERMS

2.1. This Contract shall commence on the Commencement Date. No contract for the sale of Goods or Services by GTUK shall be formed until the Customer’s Order is accepted in writing by a duly authorised representative of GTUK.

2.2. GTUK is willing to sell Goods and Services only subject to this Contract which shall override any other contractual terms expressed or implied. No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, Order, confirmation of order, specification or other document shall form part of this Contract except to the extent that GTUK otherwise agrees in writing.

2.3. No variation of these Conditions, the Order or the Contract shall be binding unless expressly agreed in writing and signed by a duly authorised representatives on behalf of GTUK and the Customer respectively.

3. QUOTATION

3.1. The Quotation constitutes an invitation to treat by GTUK to provide the Deliverables subject to these Conditions.

3.2. Each Quotation is open for the Customer to place an offer constituted by an Order for 30 days only from the date of the Quotation unless previously withdrawn by GTUK. Acceptance of the Order by GTUK shall be in writing. Rejection by GTUK of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.

3.3. The Quotation and the Conditions shall prevail over any terms or conditions contained or referred to in any correspondence, order, documentation submitted by the Customer or elsewhere. No condition, statement or representation contained in any advertisement or brochure or in any trade or promotional circular or other literature, nor the terms or conditions of any trade association or other body, or which would or might but for this paragraph be implied or incorporated by custom or trade, usage, negotiations, course of dealing or otherwise shall be deemed to be incorporated in the Contract and all of the same are hereby expressly excluded from the Contract.

4. TERMINATION

4.1. GTUK may terminate the Contract and any other contract with the Customer forthwith, without prejudice to any other right or remedy available to GTUK and without GTUK incurring any liability to the Customer, in the following circumstances:

if the Customer commits a material breach of the Contract or any other contract with

GTUK which is incapable of remedy or, if capable of remedy, has not been remedied by the Customer in accordance with a written notice from GTUK requiring remedy within the period specified in the said notice;

if the Customer fails to make payment of any amount due under the Contract on the due date and such amount remains unpaid 30 days after GTIK has given notification that payment is overdue;
the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or ceases or suspends payment of any of its debts or is unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986;
an encumbrancer takes possession, or a receiver or administrator is appointed, over all or any part of the property, undertakings, income or assets of the Customer;
the Customer ceases, or threatens to cease, to carry on all or a significant part of its business; or
GTUK reasonably apprehends that any of the events mentioned at paragraphs 4.1(c) to 4.1(e) is about to occur in relation to the Customer and notifies the Customer accordingly.
If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle GTUK to terminate the Contract under this paragraph 4, it shall immediately notify GTUK in writing.
The Customer shall be deemed to be in breach of a material provision of this Contract where work has been undertaken on the Equipment by a person other than an employee of GTUK, and where, as a result of such work, to perform the Services may, in GTUK’s reasonable opinion:
give rise to the risk of physical injury to any of GTUK’s employees or a user of the

Equipment; and/or

require a material change in the Services, or the cost of providing the Services.

Termination of the Contract by GTUK shall be without prejudice to the accrued rights and remedies of the parties prior to termination of the Contract. Any rights or remedies under the Conditions, which shall remain in force, including the right for GTUK to suspend all further Services to be provided under any other contract with the Customer (and in such event the Customer shall not be released from any of its obligations to GTUK under any other contract) and the right for GTUK to receive full compensation for its loss under the Contract or any other contract with the Customer.
On termination of the Contract pursuant to paragraph 4.1, any indebtedness of the Customer to GTUK shall become immediately due and payable.

5. PRICE

5.1. All Goods will be charged to the Customer at the price stated in the Quotation. All prices are quoted EXW Naseby Incoterms® 2020:

5.1.1. the preparation of Goods including packaging by GTUK for collection or delivery by the Customer;

5.1.2. delivery is deemed to be when the Goods are placed at the disposal of the customer, at GTUK’s;

5.1.3. loading and unloading is excluded; and

5.1.4. the Customer shall cover the cost of carriage, loading/unloading and any export or import clearance

and unless otherwise stated the cost of packaging and delivery will be added to the Price of the Goods.

5.2. The Services are charged on an annual basis payable in advance set out in the Quotation. On the anniversary of the Term, GTUK reserves the right to increase the charges based on the Electrical Engineering Labour Cost Index published by the British Electrotechnical and Allied Manufacturer’s Associations “BEAMA” from the Commencement Date to the date from which such increase is to be effective.

5.3. If during the period of the Contract there shall be any variation in the cost of materials, labour or otherwise to GTUK, the Price may, in the absolute discretion of GTUK, be adjusted to take account of such variation.

5.4. In addition to the amount specified in the Quotation the following shall be payable if applicable:

5.4.1 any applicable value added tax or sales tax;

5.4.2 package, insurance, freight, travel costs, bank charges, sample destruction costs, storage charges and disbursements incurred on behalf of the Customer, whether on GTUK’s premises or elsewhere and to include storage charges on GTUK’s premises.

5.4.3 insurance incurred by GTUK, in its absolute discretion, in respect of any property belonging to the Customer in the possession of GTUK.

5.4.4 with prior notice, the cost of all sub-contractors employed by GTUK unless included in the quotation.

5.4.5 any additional costs incurred by GTUK in accordance with the Conditions; and 5.4.6 any special standards or specifications required for the performance of the Contract.

5.5 In relation to the Equipment, GTUK may charge for any call out charge where:

5.5.1 no fault exists with the Equipment;

5.5.2 the cause of the fault is other than fair wear and tear; and/or

5.5.3 the services required are not included in the Order

> these additional charges shall be calculated at GTUK’s prevailing rates and any such visit shall incur a minimum charge of four (4) hours of GTUK’s engineer’s time.

6. PAYMENT

6.1. GTUK shall invoice the Customer for the Deliverables, partially or in full at any time following acceptance of an Order.

6.2 The Customer shall pay all invoices to GTUK in full, in cleared funds, without any deduction, set-off or counterclaim within thirty days of the date of GTUK’s invoice. For the avoidance of doubt, the Price shall be paid free and clear of, and without deduction for and on account of, tax unless the Customer is required by law to make such payment subject to the deduction of withholding tax, in which case the sum paid by the Customer shall be increased to the extent necessary to ensure that after such deduction or withholding, GTUK receives an amount equal to price it would have received had no such deduction or withholding been required.

6.3. Where the Customer is required by law to deduct or withhold on account of tax it shall use its best endeavours to obtain from the relevant revenue authorities authorisation to make payment of the sums without such deduction or withholding or, if applicable, at a reduced rate. The parties undertake to provide all reasonable assistance to each other in obtaining such authorisation and, without prejudice to the generality of the foregoing, will submit any forms and take any such action as may be reasonably necessary or reasonably required by the other party for this purpose.

6.4. Time of payment is of the essence. Where sums due under these Conditions are not paid in full within the thirty days, GTUK may:

6.4.1 suspend any further Services being carried out for the Customer;

6.4.2 withhold the provision of Reports;

6.4.3 alter or withdraw credit terms; and 6.4.4 amend terms, prices or service levels.

6.5 The amount outstanding from time to time shall bear interest (both before and after any judgment) at the rate of 8% per annum above the Bank of England base rate from time to time from the due date for payment until payment in full is made.

6.6. All payments due to GTUK shall be payable within the specified time irrespective of whether the Customer has recovered payment from a third party.

6.7. If, in GTUK’s view, the Customer’s credit-worthiness deteriorates before completion of the Service, GTUK may require payment in full or in part of the Price prior to completion, or the provision of security for payment by the Customer in such form as is acceptable to GTUK.

6.8. GTUK has a general lien on all the Customer’s Goods in GTUK’s possession in satisfaction of any amount owed by the Customer to GTUK under the Contract, and may deal with it as it sees fit.

6.9 If the Customer has materially breached the Contract, GTUK may suspend the performance of the Services (without affecting the Customer’s obligation to pay the Price) until such time as the breach is remedied. If the breach is the Customer’s default in payment, GTUK has the right to request security for payment before performing or restoring the Services.

7. DELIVERY

7.1 GTUK will use its reasonable endeavours to comply with any delivery date and/or time given in the Quotation, but time shall not be of the essence.

7.2 GTUK shall not be liable for any damage or loss of whatever nature suffered by the Customer by reason of delay in or failure of delivery of the Goods, the Customer’s failure to: make the Location available, prepare the Location or provide GTUK with adequate instructions for performance or delivery.

7.3 The Goods shall be delivered by GTUK, or its nominated carrier, to the Location on the date(s) specified in the Order.

7.4 The Goods shall be deemed delivered on arrival only of the Goods at the Location by GTUK or its nominated carrier (as the case may be).

7.5 The Services shall be performed by GTUK at the Location on the date(s) specified in the Order.

7.6 The Services shall be deemed delivered by GTUK only on completion of the performance of the Services at the Location.

7.7 GTUK may deliver the Goods or perform the Services in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.

7.8 If the Customer fails to accept delivery or requests that delivery of the Goods is delayed, GTUK shall store and insure the Goods pending delivery, and the Customer shall pay all reasonable storage and insurance charges incurred by GTUK.

8. DEFECTS AND SHORTAGES

The Customer shall be responsible for examining and testing the Goods forthwith upon delivery. GTUK shall not be liable for any patent damage or defect to the Goods or any short supply unless the same is notified to GTUK in writing within three days of delivery.

9. INSTALLATION

The Customer shall be responsible for the installation starting-up and on-site testing of the Goods.

10. RISK IN GOODS

Risk in the Goods shall pass to the Customer on delivery and the Customer shall be responsible for the insurance and safe custody of the Goods from that time.

11. TITLE TO GOODS

11.1. Legal and beneficial ownership of the Goods shall remain vested in GTUK until the Customer has paid to GTUK in cleared funds all sums due under any contract between them.

11.2. Until the title has passed to the Customer, the Customer shall:

store them in such a way as to be clearly identifiable as belonging to GTUK and

separate from all other material in the Customer’s possession;

take all reasonable care of the Goods;
keep them in the condition in which they were delivered;
not remove or alter any mark on or packaging on the Goods
on reasonable notice, permit GTUK to inspect the Goods during the Customer’s normal business hours and provide GTUK with such information concerning the Goods as GTUK may request from time to time.

11.3. GTUK shall have the right at any time before all sums referred to in paragraph 11.1. are paid to retake possession of the Goods and to enter upon any premises for the purpose of doing so, even where the Goods have been annexed to other goods or affixed to or incorporated in any other structure.

12. SUPPLY OF SERVICES

12.1 GTUK shall supply the Services to the Customer in accordance with the Order and Service Specification in all material respects.

12.2 GTUK shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

12.3 GTUK reserves the right to amend the Order and/or Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and GTUK shall notify the Customer in any event.

12.4 GTUK warrants to the Customer that the Services will be provided using reasonable care and skill.

12.5 Unless otherwise expressly stated in the Order, the Services do not include work in relation to decorative or architectural finishes or lighting, any work resulting from shrinkage or settlement of the Building or replacement of buried of sunken piping.

12.6 Notwithstanding any other provision of this Contract, the Services shall not include work required by accidental damage or other than fair wear and tear incurred in the ordinary and proper use of the Equipment.

12.7 Unless otherwise expressly provided in the Order, the Services do not include any work necessitated:

as a result of any failure by the Customer to comply with its obligations under paragraphs 13.1 to 13.4 inclusive;
by the Equipment not being safe or in satisfactory condition at the Commencement Date; or
by modifications to the Equipment not performed by GTUK.

13 CUSTOMER OBLIGATIONS

13.1 The Customer undertakes to report promptly to GTUK any irregular performance of, or defect in or damage to the Equipment.

13.2 During the Term the Customer shall use all reasonable endeavours to ensure that, and the Services shall exclude any work necessitated by the Customer failing to ensure that:

proper environmental conditions and clean electricity supplies are maintained for the Equipment,
the Equipment is used in a normal and proper manner, including preventing a material change in the use or usage of the Equipment,
the Equipment is not vandalised, abused or misused and does not suffer accidental damage,
the Equipment is kept clean, that no act or omission on the part of the Customer results in the cost of providing or the ability to provide the Services being adversely affected, and that the Equipment is not damaged by the presence of or contaminated by water or other material, and
it complies with any additional obligations as set out in the Service Specification.
During the Term the Customer will make available to GTUK free of charge, all facilities and services, including but not limited to certified and tested scaffolding and lifting points, as GTUK reasonably requires to enable GTUK to perform the Services.
The Customer will comply with The Health and Safety at Work etc. Act 1974, The Management of Health and Safety at Work Regulations 1992 and all other environmental, health and safety and other related acts, regulations, codes and legal obligations and good safety practices. GTUK may suspend the Services:
if GTUK informs the Customer that work outside the scope of the Services is required for the safe or efficient operation of the Equipment or the performance of the Services and the Customer fails to have the work carried out; or
which may involve exposure to any Hazardous Material.
The Customer will at its expense promptly remove or neutralise the effects of the Hazardous Material. Hazardous Material includes any hazardous or toxic material (which may if brought into contact or close proximity to a GTUK employee have adverse consequences to health, techniques or processes).
Where the Customer sells or otherwise disposes of its interest in the Building, the

Customer may assign that part of this Contract with GTUK’s prior written consent, such consent not to be unreasonably withheld.

14. WARRANTIES

14.1. GTUK warrants that the Goods comply with manufacturer’s specifications and that, if used and maintained in strict accordance with the recommendations of the manufacturer and/or GTUK, will duly perform the task for which they are designed.

14.2. GTUK warrants that the Goods are free of material defects in materials or workmanship and will replace or repair free of charge any defective product component or part returned to GTUK within one year from the date of delivery. The Customer shall pay all transportation charges and the costs, if any, of demonstrating that need to diagnose any defect on site. Any product, component or part so replaced or repaired shall be covered by this warranty for the remainder of the original warranty period. The above warranty shall not extend to any product, component or part found to be defective in whole or in part due to any cause other than defects in materials or workmanship.

14.3. The above warranty shall apply to any parts supplied separately by GTUK save that the period of such warranty shall then be three months instead of one year.

14.4. GTUK warrants that instruments supplied by it for the analysis of chemical composition, will perform that analysis for which it is specified in its Quotation, provided the instrument is installed in accordance with the instructions of the manufacture and/or GTUK, and provided that the chemical composition and physical conditions of the sample are within the limits specified by the Customer in its request for Quotation, purchase order and/or application data sheet. Should such equipment fail to perform such analysis GTUK shall, at its sole discretion, modify, replace or repair the equipment or any part of it. Notwithstanding the above provisions, should the equipment perform satisfactorily in the Customers plant on a sample having the same chemical composition and the same physical conditions as specified by the Customer. GTUK shall not be responsible for failure of the equipment to perform on the actual stream of the Customer.

14.5. To the extent limited by law no other warranties oral or written express or implied shall be deemed given by GTUK.

15. OWNERSHIP, COPYRIGHT AND PATENTS

All Intellectual Property Rights (including copyright in records, scientific documentary, primary data or electronic means of handling data) in or arising out of or in connection with any sales, Service or Contract shall be owned by GTUK unless otherwise expressly agreed as part of the Contract.
The Customer shall indemnify GTUK against all damages, penalties, costs and expenses to which GTUK may become liable as a result of a claim that the use of any data, equipment or other materials supplied by the Customer for the performance of the Contract involves the infringement of any Intellectual Property Rights of any third party.

16. CONFIDENTIALITY

16.1 Each party (the “Recipient“) shall keep all confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party (the “Disclosing Party“) in the strictest confidence. Save for the purposes of fulfilling its obligations under the Contract, the Recipient shall not, without the prior written consent of the Disclosing Party, disclose, divulge or grant access to the confidential information which it has received and shall not permit any of its employees, agents or officers to disclose, divulge or grant access to such Confidential Information.

16.2 Notwithstanding paragraph 16.1, a Recipient may disclose Confidential Information which it has received if:

16.2.1 it is required to do so by any governmental, local government or regulatory authority, court of competent jurisdiction or by law (but then only to the extent it is strictly required to do so);

16.2.2 it is strictly necessary for the purpose only of obtaining professional advice in relation to the Contract;

16.2.3 it was already known to the Recipient prior to the time of disclosure by the Disclosing Party (where the Recipient can prove the same with documentary evidence); or

16.2.4 it is information which subsequently becomes public knowledge other than by breach of the Contract by the Recipient.

16.3 In the event of an information request being made to a Recipient pursuant to any Freedom of Information legislation or the Environmental Information Regulations 2004 in respect of any Confidential Information then the Recipient shall notify the Disclosing Party and shall not disclose any information until an analysis has been made as to whether the information requested is capable of benefiting from an exemption from disclosure.

16.4 The obligations of the parties under this paragraph 16 shall remain in force in perpetuity.

17. LIMITATION OF LIABILITY

17.1 GTUK shall not be liability for any of the following: loss of profit; loss of revenue; loss or corruption of data; loss or corruption of software or systems; loss or damage to equipment; damage to the Building arising from the proper performance of GTUK of the Services; loss of use; loss of production; loss of contract; loss of commercial opportunity; loss of savings, discount or rebate (whether actual or anticipated); harm to reputation or loss of goodwill.

17.2 Subject to paragraph 17.3, GTUK’s total liability shall not exceed the sum of £5,000,000.

17.3 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of personal injury or death caused by negligence; fraud or misrepresentation and any other losses which cannot be excluded or limited by any applicable laws.

17.4 GTUK accepts no liability for any loss or damage arising in whole or in part the failure of the Customer to ensure that the Goods are used and regularly inspected, serviced, maintained and repaired in strict accordance with the recommendations of the manufacturer and/or GTUK.

17.5 Subject to paragraphs 17.3 and 17.4 under no circumstances shall GTUK be liable for any consequential, indirect or special losses or damage of whatever nature.

17.6 The limitations of liability set out in paragraphs 17.3 and 17.4 shall not apply in respect of any indemnities given by the Customer under the Contract.

18. ANTI-CORRUPTION

18.1. The Customer undertakes to comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Anti-Corruption Laws“) and that it shall not do, nor omit to do, any act that will lead to the Customer or GTUK being in breach of any of the Anti-Corruption Laws. The Customer shall comply with GTUK’s Anti-Corruption policies as may be notified to the Customer and updated from time to time (“Relevant Policies“).

18.2. The Customer shall promptly report to GTUK any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of the Contract.

19. REASONABLENESS AND SEVERANCE

19.1 The parties expressly confirm that they each accept these terms and conditions as being reasonable, but if any court or tribunal shall find any term to be unreasonable such term shall not be void but shall be valid and enforceable to the full extent that such court or tribunal shall deem would have been reasonable in all circumstances.

19.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.

19.3 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision of part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

20. FORCE MAJEURE

20.1 GTUK will not be liable for any loss, delay or failure in the performance of its obligations under this Contract arising out of circumstances beyond the control of GTUK including (but not limited to) flood, storm, fire, accidents, labor disputes, war or civil commotion, act of any governmental authority or act of God.

20.2 If GTUK anticipates the delay or non-performance shall continue for a period of three months, the Customer shall be entitled to terminate the Contract by giving not less than 10 Business Days’ written notice to GTUK.

21. CONSTRUCTION OF TERMS

Headings have been used for convenience only and shall not affect the construction or interpretation of these terms.

22. GOVERNING LAW

The Contract and any dispute or claim arising out of, or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed and construed in accordance with the laws of England and Wales.

23. JURIDICTION

The parties irrevocably agree 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, its subject matter or formation (including non-contractual disputes of claims).

24. WAIVER

24.1 No failure, delay or omission by GTUK in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

24.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by GTUK shall prevent any future exercise of it or the exercise of any other right, power or remedy by GTUK.

25. SET OFF

25.1 GTUK shall be entitled to set off under the Contract any liability which it has or any sums which is owes to the Customer under the Contract or under any other contract which GTUK has with the Customer.

25.2 The Customer shall pay all sums that it owes to GTUK under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

26. CONFLICTS WITHIN CONTRACT

If there is a conflict between the terms contained in this Contract, the terms of the Order, the Quotation or the schedules, appendices or annexes to the Contract, the terms of the Order shall prevail to the extent of the conflict.