Terms of service

Scope

1.1 These General Terms and Conditions of Sale (‘GTC’) and Delivery of Qualkem Limited (‘Qualkem’) (registered in England and Wales with company number 1018276) apply to the performance, production and/or delivery of products (‘Goods’).

 1.2 The GTC apply only to transactions between Qualkem and the business and organisations buying the Goods (‘Customer’). These GTC do not apply to you if you are a consumer.

1.3 These GTC contain all terms and conditions with respect to the purchase and sale of the Goods sold pursuant to a purchase order (‘PO’), and apply to the exclusion of any terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

 1.4 By placing a PO for Goods from Qualkem as set out in Clause 2, the Customer accepts these GTC. 2. Offer and acceptance

2.1 Qualkem offers are subject to change and non-binding unless they are expressly marked as binding. The Customer’s PO is considered a binding offer to purchase the Goods in accordance with these GTC.

2.2 The PO shall be deemed accepted, and the contract shall be deemed to come into existence on the earlier of Qualkem issuing a written acceptance of the Customer’s PO through an Order Acknowledgement (‘OA’) or through delivery of the Goods. No Order may be cancelled in whole or part by the Customer once the PO has been accepted. 2.3 A quotation for the Goods given by Qualkem shall not constitute an offer. A quotation shall only be valid for a period of 28 Business Days from its date of issue.

3. Prices and price adjustments

3.1 The prices in the PO shall apply in pounds sterling excluding VAT which the Customer shall additionally be liable to pay to Qualkem at the prevailing rate, subject to the receipt of a valid VAT invoice. Unless otherwise agreed in writing, the price does not include costs of pallets, transport, (in the case of export deliveries) customs duty, and insurance fees, which will be charged separately to the Customer.

3.2 Qualkem is entitled, in its reasonable discretion, to adjust prices for any Goods to be supplied to the Customer on a recurring basis to reflect any increase in the cost of the Goods caused by or in connection with (without limitation) price changes for raw materials, freight costs, tariff agreements, energy and personnel costs, provided that such increases in cost are not caused by external factors and were not reasonably foreseeable by Qualkem. The Customer will be informed about such price changes by Qualkem in writing no fewer than four (4) weeks before the new prices come into effect.

3.3 Any notification of price change will inform the Customer of the specific effective date of the price increase, any delivery of Goods to the Customer on or after such date will incur the price change.

3.4 The price payable for the Goods shall be Qualkem’s price in force on the date of delivery, regardless of the date the order was placed.

3.5 This clause applies in all circumstances, including but not limited to orders placed prior to an announced or effective price increase.

 4. Delivery of Goods

4.1 All Goods will be delivered according to the Incoterms specified on the quotation and confirmed on the PO. The method of delivery and location will be set out in the PO or such other location as the parties may agree (Delivery Location) at any time after Qualkem notifies the Customer that the Goods are ready for delivery, unless otherwise agreed with Qualkem.

4.2 The method of Goods delivery may be changed at the request of the Customer but additional delivery charges may apply which shall be payable by the Customer immediately upon receipt of an invoice in relation to the same from Qualkem and in any event before the arrival of the Goods at the Delivery Location.

4.3 Qualkem shall not accept any claims for damage, mis-delivery, non-delivery or loss in transit unless notice in writing reaches Qualkem in the case of UK sales, within such time as would enable a claim to be made on the carrier or, in the case of sales outside the UK within 30 days of arrival or anticipated arrival at the port of destination and no responsibility will be accepted by Qualkem for any failure or delay on the part of the Customer to make a claim on insurance where applicable.

4.4 Delivery of the Goods shall be completed on the arrival of the Goods at the Delivery Location.

 4.5 Qualkem will use its reasonable endeavours to adhere to the delivery or completion dates quoted but any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Any change to the delivery date will be communicated to the customer by Qualkem.

4.6 Qualkem shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the failure of the Customer to provide Qualkem with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. The Customer shall have no right to damages or to cancel the PO for failure for any cause to meet any quoted delivery and/or completion dates.

4.7 If the Customer fails to take delivery of the Goods within three (3) Business Days of Qualkem notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the failure of Qualkem to comply with its obligations under the Contract:

4.7.1 Delivery of the Goods shall be deemed to have been completed at 9:00 am on the third Business Day following the day on which Qualkem notified the Customer that the Goods were ready;

4.7.2 All sums due and owing to Qualkem on delivery will fall due for payment on the date specified in Clause

4.7.1 above; and 4.7.3 Qualkem shall store the Goods until actual delivery takes place. The Customer shall be solely liable to pay, and will reimburse Qualkem in full on demand, all related costs and expenses including but not limited to reasonable storage charges, demurrage and/or insurance premiums.

 5. Payment, default in payment and retention of title

5.1 Unless otherwise agreed between the parties, Qualkem invoices are payable within 30 Days.

5.2 of the invoice date without deduction and shall stay the VAT due on the goods ordered. Time for payment shall be of the essence of the contract.

5.3 If the customer is in default of payment, Qualkem may charge default interest from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause shall accrue each day at nine percent (9%) a year above the respective base rate of the Bank of England from time to time.

5.4 Until full payment of invoices, the goods remain the property of Qualkem.

 6. Rights of the Customer in the event of defects

6.1 Unless otherwise agreed between the parties, the Warranty period for claims for defects by the Customer shall be one (1) year from delivery or, insofar as acceptance is required, from acceptance of the goods.

6.2 At the time of delivery, the Customer shall inspect the goods, insofar as this is feasible in the ordinary course of business, and if a defect becomes apparent, notify Qualkem immediately. if the Customer fails to notify Qualkem within five (5) days of delivery, the Goods are deemed accepted, unless alternative acceptance arrangements are agreed by the parties.

6.3 Subject to clause 6.4, if:

 6.3.1 the Customer gives notice in writing to Qualkem within a reasonable time of discovery that some are all of the goods do not comply with the Warranty set out above;

6.3.2 Qualkem is given a reasonable opportunity of examining such Goods; and

6.3.3 the Customer (if asked to do so by Qualkem) returns such goods to Qualkem's place of business at Qualkem's cost. Qualkem shall, at its option, repair or replace the defective Goods, or reform the original price of the defective Goods in full. This shall be the sole and exclusive remedy for a breach of this warranty.

6.4 Qualkem shall not be liable for the Goods’ failure to comply with the Warranty if:

6.4.1 the customer makes any further use of such goods after giving notices in accordance with clause 6.3;

6.4.2 the defect arises because the Customer failed to follow Qualkem’s instructions as to the storage and use of the Goods (or if there is none) good trade practice regarding the same;

 6.4.3 the defect arises as a result of Qualkem following specification supplied by the Customer;

6.4.4 the customer alters or repairs such goods without Qualkem's written consents;

6.4.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal July 2023 5 storage or working conditions; or

6.4.6 the good differ from their description and any applicable specification as a result of changes made to ensure they comply with the applicable statutory regulatory requirements.

 7. Liability

7.1 This clause 7 sets out the entire financial liability of Qualkem (including any liability for the acts or emissions of its employees, agents and subcontractors) to Customer and respect of; (a) any breach of these GTC (together with any PO raised thereunder) however arising; (b) any use made or resale of Goods by Customer, or any products incorporating any of the goods; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with these GTC.

7.2 Nothing in these GTC shall limit or exclude Qualkem’s liability for; (a) death or personal injury resulting from its negligence; or (b) fraud or fraudulent misrepresentation; or (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or (d) to the extent that such liability cannot be excluded or limited by law.

7.3 Without prejudice to clause 7.2, Qualkem shall not under any circumstances whatever reliable to Customer, whether in contract, tort (including negligence) or restitution, or for the breach of statutory duty or misrepresentation, or otherwise, for any; (a) a loss of profit; or (b) loss of goodwill; or (c) loss of business; or (d) loss of business opportunity; or (e) loss of anticipated savings; or (f) special, indirect or consequential damage, that arises under or in connection with these GTC. 7.4 Without prejudice to clauses 7.1 and 7.2 above, Qualkem's total liability to the Customer, arising under or in connection with these GTC, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in no circumstances exceed one hundred percent (100%) of the sum paid by the customer in respect of the relevant Goods in the twelve (12) months period preceding the date on which the claim arose.

8. Industrial property rights and copyrights, property rights of third parties

8. 1 The parties shall remain the owners of all industrial property rights (in particular patents, trademarks, designs), copyright and know-how (hereinafter jointly referred to as ‘Intellectual Property’) in the delivered Goods as well as in the documents and other items handed over in the connection with the parties’ contractual relationship. No rights to any Intellectual Property shall be granted or transferred to the other party, unless otherwise agreed and as necessary for the performance of this contract by Qualkem. Insofar as Qualkem uses the Customer’s Intellectual Property for the performance of this contract and as intended, the Customer grant Qualkem a non-exclusive, royalty free, licence to use the Customers Intellectual Property as necessary for the duration of the contract.

 9. Confidentiality

9.1 The Customer and Qualkem shall treat all information that has become known to one party from the other party in connection with this agreement (hereinafter referred to as 'Confidential Information') as confidential, shall not make it available to any third party and shall use it only for the purposes of the contract.

9.2 Clause 9.1 shall not apply to Confidential Information which the receiving party is able to prove that is already been in the public domain at the time of receipt or become public after being received without any action by the receiving party, was already in the receiving party’s possession at the time of disclosure or was independently developed by the receiving party or becomes available to the receiving party from a third party who is under no obligation of confidentiality, provided that the third party did not receive such Confidential Information directly or indirectly from the disclosing party. 9.3 The receiving party is obligated to take all necessary and appropriate precautions to ensure the Confidential Information obtained is protected against the unauthorised access or loss. The receiving party shall impose appropriate obligations on their employees under this clause

 9.4 The Customer shall, upon Qualkem's request an upon termination of the contract, promptly return or, as agreed, destroy all Confidential Information of Qualkem (including copies and July 2023 7 transcripts) at any time and confirm this in writing to Qualkem on request.

10. Force majeure

10.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a force majeure event. A force majeure event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

11. Termination

11.1 If the Customer becomes subject to any of the events listed in clause

11.2, or Qualkem reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to Qualkem, Qualkem may cancel or suspend all further deliveries under the contract or under any other contract between the customer and Qualkem without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.

11.2 For the purposes of clause 11.1, the relevant events are: 11.2.1 The Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or has any partner to whom any of the foregoing apply;

11.2.2 The Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

11.2.3 The Customer is the subject of a bankruptcy petition or order;

11.2.4 A creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

11.2.5 An application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;

11.2.6 A floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;

11.2.7 A person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;

11.2.8 Any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause a to clause g (inclusive);

11.2.9 The Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; and

11.2.10 The financial position of the Customer deteriorates to such an extent that in the opinion of Qualkem the capability of the Customer to adequately fulfil its obligations under the contract has been placed in jeopardy;

11.3 Termination of the contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

12. Notices

12.1 Any notice or other communication given to a party under or in connection with the contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that July 2023 9 party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier, or e-mail.

12.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause a; if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.

12.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action. 13. Applicable law, place of jurisdiction and miscellaneous

13.1 These GTC shall be governed by and constitute in accordance with the laws of England and Wales.

13.2 The parties here by submit to the exclusive jurisdiction of the English courts.

13.3 What lessons expressly States otherwise, these GTC do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the GTC. The rights of the parties to rescind or vary these GTC subject to the consent of the other person.

13.4 In any provision or part-provision of these GTC is or becomes invalid, illegal or unforceable, it shall be deemed deleted, but shall not affect the validity and enforceability of the rest of the GTC. If any provision of the GTC is deemed deleted under the this clause 13.4 the party 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.

13.5 These GTC constitute the entire agreement between the parties. Each party acknowledges that in entering into the contract it does not rely on any statement, representation, assurance or warranty (where made innocently or negligently) that is not set out in these GTC. Each party agrees that it shall not claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the contract.