1. DEFINITIONS AND INTERPRETATION

1.1 In these Conditions the following words and expressions shall have the following meanings, unless the context otherwise requires:

“Affiliate” means any: (i) entity that directly or indirectly controls, is controlled by, is under common control with or is otherwise in the same group of entities as a party to this Agreement, or (ii) fund or limited partnership that is managed or advised, or whose general partner or manager is managed or advised, by the Customer or its Affiliate or which the Customer or its Affiliate controls;

“Agreement” means the agreement between the Customer and the Supplier for the sale and purchase of the Goods and/or Services in accordance with the Order and these Conditions;

“Associated Persons” means in relation to the Supplier, any employee, director, officer, subsidiary, agent, intermediary, sub-contractor, consultant, or any third party acting for or on behalf of the Supplier;

“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;

“Charges” means the charges payable by the Customer for the receipt of the Services;

“Commencement Date” has the meaning set out in condition 2.3;

“Customer Materials” has the meaning set out in condition 4.3(i);

“Conditions” means the terms and conditions set out in this document as amended from time to time;

“Customer” means ICG FMC Limited registered in England and Wales with company number 07266173 (or, if different, the entity named in the “invoice to” box on the preceding page);

“Deliverables” means all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts);

“Goods” means the goods (or any part of them) set out in the Order;

“Insolvent” means in respect of the Supplier:

(a) it is unable or admits inability to pay its debts as they fall due, suspends or threatens to suspend making payments of any of its debts or by reason of actual or anticipated financial difficulties commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness;

(a) a moratorium is declared in respect of any of its indebtedness;

(a) any corporate action, legal proceedings or other procedure or step is taken in relation to:

(i) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise);

(ii) a composition, compromise, assignment or arrangement with any creditor;

(iii) the appointment of a liquidator, receiver, administrator, administrative receiver, compulsory manager or other similar officer over any of its assets; or

(iv) enforcement of any security interest (including any mortgage, charge, pledge, assignment or assignation (whether or not expressed to be by way of security), hypothecation, lien, encumbrance or other priority, any deferred purchase, title retention, trust, sale-and-repurchase, sale-and-leaseback, hold back or “flawed asset” arrangement or right of set-off or any other agreement or arrangement of any kind having the same or a similar commercial or economic effect as security) over any of its assets; or

(d) the occurrence of any event in any jurisdiction to which it is subject having an effect similar to that of any of the events referred to in paragraphs (a) to (c) above;

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“Order” means the Customer’s order for the Goods and/or Services, as set out in the Customer’s purchase order form overleaf;

“Services” means the services, including without limitation any Deliverables, to be provided by the Supplier under the Agreement as set out in the Specification;

“Specification” means any specification for the Goods and/or Services, including any related plans and drawings, that is agreed by the Customer and the Supplier; and

“Supplier” means the person or firm from whom the Customer purchases the Goods and/or Services.

1.2 In these Conditions unless otherwise specified, reference to:

(a) “includes” and “including” shall mean including without limitation;

(b) a party means a party to the Agreement and includes its permitted assignees and/or the successors;

(c) a person includes any person, individual, company, firm, corporation, government, state or agency of a state or any undertaking (whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);

(d) a statute or statutory instrument, or any of their provisions, is to be construed as a reference to that statute or statutory instrument or such provision as the same may have been or may hereafter be amended or re-enacted; and

(e) words denoting the singular include the plural and vice versa and words denoting any gender include all

1.3 The index to and the headings in these Conditions are for information only and are to be ignored in construing the same.

3. THE GOODS

3.1 The Supplier shall ensure that the Goods shall:

(a) correspond with their description and any applicable Specification;

(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) 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;

(c) where they are manufactured products, be free from defects in design, material and workmanship and remain so for 12 months after delivery; and

(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of 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 Agreement.

3.3 The Customer shall have the right to inspect and test the Goods at any time before delivery.

3.4 If following such inspection or testing the Customer considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at condition 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 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Agreement, and the Customer shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.

5. CUSTOMER SERVICES REMEDIES

5.1 If the Supplier fails to perform the Services by the applicable dates, the Customer shall, without limiting its other rights or remedies, have one or more of the following rights:

(a) to terminate the Agreement with immediate effect by giving written notice to the Supplier;

(b) to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;

(c) to recover from the Supplier any costs incurred by the Customer in obtaining substitute services from a third party;

(d) where the Customer has paid in advance for Services that have not been provided by the Supplier, to have such sums refunded by the Supplier; or

(e) 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.

5.2 These Conditions shall extend to any substituted or remedial services provided by the Supplier.

5.3 The Customer’s rights under the Agreement are in addition to its rights and remedies implied by statute and common law.

7. DELIVERY OF GOODS

7.1 The Supplier shall ensure that:

(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;

(b) 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

(c) if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.

7.2 The Supplier shall deliver the Goods:

(a) on the date specified in the Order, or, if no such date is specified, within 28 days of the date of the Order (the “Delivery Date”);

(b) to such location as is set out in the Order, or as instructed by the Customer prior to delivery (the “Delivery Location”); and

(c) during the Customer’s normal business hours, or as instructed by the Customer.

7.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.

7.4 The Supplier shall not deliver the Goods in instalments without the Customer’s prior written consent. Where it is agreed that the Goods are to be 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 condition 8.

9. TITLE AND RISK

Title and risk in the Goods shall pass to the Customer on completion of delivery.

11. PRICE AND PAYMENT - SERVICES

11.1 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.

11.2 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.

11.3 In consideration of the supply of the Services by the Supplier, the Customer shall pay the undisputed invoiced amounts within 30 days of the date of a correctly rendered and undisputed invoice to a bank account nominated in writing by the Supplier.

11.4 All amounts payable by the Customer under the Agreement are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Agreement by the Supplier to the Customer, the Customer shall, on receipt of a valid undisputed VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

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

11.6 The Customer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Agreement.

13. INTELLECTUAL PROPERTY RIGHTS

13.1 In respect of any goods that are transferred to the Customer under the Agreement, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to the Customer, it will have full and unrestricted rights to transfer all such items to the Customer.

13.2 The Supplier assigns to the Customer, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt the Deliverables.

13.3 The Supplier shall obtain waivers of all moral rights in the products, including for the avoidance of doubt the Deliverables, of the Services to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.

13.4 The Supplier shall, promptly at the Customer’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Customer may from time to time require for the purpose of securing for the Customer the full benefit of the Agreement, including all right, title and interest in and to the Intellectual Property Rights assigned to the Customer in accordance with condition 13.2.

13.5 All Customer Materials are the exclusive property of the Customer.

15. INSURANCE

During the term of the Agreement the Supplier shall maintain in force, with a reputable company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Agreement, 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.

17. TERMINATION

17.1 The Customer may terminate the Agreement in whole or in part upon not less than 30 days prior written notice expiring at any time to the Supplier, whereupon the Supplier shall discontinue all work on the Agreement. The Customer shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of service of notice of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.

17.2 Without limiting its other rights or remedies, the Customer may terminate the Agreement by giving written notice to the Supplier expiring on such date as such notice shall specify, if:

(a) the Supplier commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of the Supplier being notified in writing to do so; or

(b) the Supplier repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement

(c) the Supplier becomes Insolvent.

17.3 Termination of the Agreement, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination.

17.4 Conditions which expressly or by implication survive termination of the Agreement shall continue in full force and effect.

19. FORCE MAJEURE

19.1 “Event of Force Majeure” means, in relation to either party, an event or circumstance beyond the reasonable control of that party (the “Claiming Party”) including, without limitation, strikes, lock outs (whether or not by the Claiming Party), go-slows, occupation of factories and premises and other industrial disputes .

19.2 The Claiming Party shall not be deemed to be in breach of the Agreement or otherwise liable to the other party (the “Non- claiming Party”) for any delay in performance or any non-performance of any obligations under the Agreement if and to the extent that the delay or non-performance is due to an Event of Force Majeure, provided that:

(a) the Claiming Party could not have avoided the effect of the Event of Force Majeure by taking precautions which, having regard to all matters known to it before the occurrence of the Event of Force Majeure and all relevant factors, it ought to have taken but did not take; and

(b) the Claiming Party has used reasonable endeavours to mitigate the effect of the Event of Force Majeure and to carry out its obligations under the Agreement in any other way that is reasonably practicable.

19.3 The Claiming Party shall promptly notify the Non-claiming Party of the nature and extent of the circumstances giving rise to the Event of Force Majeure.

19.4 If the Event of Force Majeure in question prevails for a continuous period in excess of 45 Business Days after the date on which it began, the Non-claiming Party may give notice to the Claiming Party terminating the The notice to terminate must specify the termination date, which must be not less than 30 clear days after the date on which the notice to terminate is given. Once a notice to terminate has been validly given, the Agreement will terminate on the termination date set out in the notice.

21. COMPLIANCE WITH ANTI-BRIBERY AND OTHER LAWS AND REGULATIONS

21.1 The Supplier has not made and will not make, and has procured and will procure that none of its Associated Persons has made nor will make (whether in connection with the Agreement or otherwise) at any time any promise or offer (or accept, request, receive or agree to receive) any gift, payment (including a facilitation payment), reward, rebate, contribution, commission or any improper influence, incentive, inducement or advantage of any kind, directly or indirectly, to or from:

(a) any public official, administrative officer or political party;

(b) any private entity, party or individual; or

(c) any political or charitable organisations which would contravene (i) any applicable laws, rules or regulations applicable to the Supplier’s business operations including, but not limited to the anti-bribery and competition laws and regulations of the United Kingdom; or (ii) industry best practice.

21.2 Without prejudice to any other provisions of the Agreement the Supplier shall at all times comply with and ensure that the Services are provided in accordance with all applicable laws, regulations, and codes of conduct and in an ethically compliant manner.

23. NOTICES

23.1 Any notice or other communication given to a party under or in connection with the Agreement shall be in writing and shall be; (a) 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 party may have specified to the other party in writing in accordance with this condition, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier; or (b) sent by email to the following addresses (or an address substituted in writing by the party to be served): Customer: [email protected], Supplier: the last known email address of the Supplier available to the Customer.

23.2 A notice or other communication shall be deemed to have been received:

(a) if sent by pre-paid first class post or other next working day delivery service, at 00 am on the second Business Day after posting;

(b) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or,

(c) if sent by e-mail, one Business Day after transmission.

23.3 The provisions of this condition shall not apply to the service of any proceedings or other documents in any legal action.

25. WAIVER

25.1 A waiver of any term, provision or condition of, or consent granted under, the Agreement shall be effective only if given in writing and signed by the waiving or consenting party and then only in the instance and for the purpose for which it is given.

25.2 No failure or delay on the part of any party in exercising any right, power or privilege under the Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

25.3 No breach of any provision of the Agreement shall be waived or discharged except with the express written consent of the parties.

25.4 The rights and remedies herein provided are cumulative with and not exclusive of any rights or remedies provided by law.

27. ENTIRE AGREEMENT

The Agreement constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.

29. GOVERNING LAW

The Agreement, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to the Agreement or its formation (including any non-contractual disputes or claims), shall be governed by and construed in accordance with English law.