TERMS & CONDITIONS

TERMS AND CONDITIONS OF SALE OF PRODUCTS BY TOUGHGUARD LLC AND ALL SUBSIDIARY AND ASSOCIATED COMPANIES (HEREINAFTER CALLED “OCL”)

OCL RESERVES THE RIGHT TO VARY THESE TERMS AND CONDITIONS FROM TIME TO TIME. ALL REASONABLE ENDEAVOURS WILL BE USED TO ENSURE THAT OUT OF DATE VERSIONS ARE REMOVED FROM CIRCULATION AND OCL WILL RELY ON AND WILL ACCEPT ALL CUSTOMERS TO RELY ON THE CURRENT TERMS AND CONDITIONS WHICH ARE ALWAYS AVAILABLE FOR INSPECTION ON REQUEST.

All orders are accepted subject to our Standard Conditions of sale reproduced below which apply to and govern all contracts quotations sales supplies and deliveries of goods materials services and other products (hereinafter called "Products") by OCL or its representatives to any individual firm company or other person (hereinafter called "the Buyer") and of all or any other conditions warranties or terms otherwise implied or expressed. In the absence of a specific contract the giving of an order by the Buyer to OCL for any product shall constitute an unqualified acceptance by the Buyer that if OCL accepts the order sale supply or delivery of such Products by OCL the order will be governed solely by these conditions of sale.  In the absence of an express agreement in writing no variation of these conditions of sale and no oral stipulations or representations shall be binding on OCL unless expressly agreed in writing and signed by two directors of OCL on its behalf

1.         Prices

Except as otherwise expressly stated and contracted OCL reserves the right to vary prices and payment dates at any time. Stated prices are exclusive of all Valued Added Taxes and Duties.  Prices quoted in foreign currency may be adjusted at any time in relation to variations in the appropriate exchange rate and are ex-works OCL premises at HR ToughGuard, LLC, 5600 SW Arctic Dr. Ste 120, Beaverton, OR 97005.  The price does not include the cost of freight carriage packing or insurance which unless otherwise expressly agreed to in writing will be additionally charged to the Buyer. 

2.         Delivery

2.1.      OCL shall make all reasonable efforts to meet a "delivery date".  Time shall not be of essence. 

2.2.      OCL shall not be bound to keep the delivery date and shall not be liable in any manner whatsoever for failure or delay whilst so prevented hindered or delayed.

2.3.      OCL reserves the right to deliver by instalments.  The Buyer shall inspect all Products on delivery and unless the Buyer takes the following actions the Buyer will be deemed to have accepted the delivery in full contractual satisfaction of the order:

2.3.1.    Buyer shall endorse Carrier's note indicating why the delivery is not accepted in full satisfaction of the order; 

2.3.2.    Buyer shall advise OCL immediately by telephone and confirm details of why the delivery is not accepted in full satisfaction of the order in writing to OCL;

2.3.3.    Buyer shall send full particulars of any delivery problem to OCL in writing within 10 days after delivery;

2.3.4.    In case of complete non-delivery of a consignment the Buyer shall advise OCL within 10 days after date of invoice;

2.4.      The date for delivery shall in every case be dependent upon prompt receipt of all necessary information final instructions or approvals from the Buyer.

2.5.      The Buyer shall be bound to pay for all goods notwithstanding any alleged non-delivery or shortage of goods if the foregoing conditions have not been complied with.

2.6.      OCL will not be liable for any loss or damage associated with the unloading of goods at any designated point of delivery or for placing them in position on site except by prior agreement in writing and if OCL do participate in the unloading (whether with or without such prior agreement) the buyer shall indemnify OCL against any consequences to OCL of its (or its sub-contractors) assisting the Buyer in such unloading.

2.7.      Section 32(2)&(3) of the Sale of Goods Act 1979 shall not apply.

3.         Force Majeure

If during the currency of any contract agreement or order entered into between OCL and the Buyer OCL is delayed or hindered in or prevented from performing any or all of its obligations hereunder by war, road blocks, rail blocks, strikes whether official or unofficial lock-out picketing or blocking (secondary or otherwise) or any action which could reasonably be described as in the furtherance of or in any way related to an industrial dispute or grievance, riots, civil commotions, epidemic, fire, explosions, accident, flood, plant breakdown or any other cause (whether or not of the same nature as the foregoing) beyond the reasonable control of OCL then OCL shall not in consequence thereof be under any liability in contract in relation to the contract agreement or order and OCL may if it deems so desirable upon giving notice to the Buyer partially or wholly suspend deliveries of any goods or preferments of any works during the continuance of such causes and the Delivery Date or Dates shall be correspondingly extended.

4.         Title & Risk

4.1.      THE RISK in the Products shall pass to the Buyer as from the time when the Products are either:

4.1.1.    Where the Buyer or his nominee or representative (which the latter term shall include a carrier nominated by the Buyer) collects the Products ex-Company's works delivery shall be effected by delivery of the Products to the Buyer or his nominee or representative ex-Buyers works;  or

4.1.2.    Delivery to the Buyer’s premises.

4.2.      TITLE AND PROPERTY in the Products shall not pass to the Buyer until whichever of the following events first occurs and until such time the goods shall remain the sole and absolute property of OCL:

4.2.1.    the Buyer shall have paid to OCL the full amount of the agreed price together with the full price of any other goods the subject of any other agreement with OCL entered into before or after the Agreement in question;

4.2.2.    the Buyer in the ordinary course of its business selling the Products in which case title to the Products shall be deemed to have passed to the Buyer immediately prior to delivery of the Products to the Buyer;  and

4.2.3.    OCL waiving its rights under this Clause in respect of specific Products where upon title to the said specific Products shall forthwith vest in the Buyer.

4.3.      Until property in the Products passes the Buyer shall hold the Products as bailee for OCL.

4.4.      Notwithstanding that property in the Products has not yet passed to the Buyer the Buyer may nevertheless in the ordinary course of its business sell the Products.

4.5.      Until the property in the Products shall have passed to the Buyer any of the Products remaining in the possession of the Buyer shall be as far as possible kept separate and distinct from all other property of the Buyer or of any persons and stored in such a way as to be clearly identified as belonging to OCL.

4.6.      OCL may at all times revoke the power of sale contained in condition 4.4 above by notice to the Buyer if the Buyer is in default for longer than seven days in the payment of any sum whatsoever due to OCL (whether in respect of Products or any goods supplied at any time by it to the Buyer or for any other reason whatsoever) or if OCL has a bona fide doubt as to the solvency of the Buyer.

4.7.      The Buyers power of sale as contained in condition 4.4 above shall automatically cease if the Buyer (being a Company) enters into liquidation whether compulsorily or voluntarily or has a receiver appointed over all or any part of its assets; or if the Buyer (not being a Company) becomes bankrupt or insolvent or if the Buyer enters into any arrangement with creditors or takes or suffers any similar action in consequence of debts.

4.8.      The Buyers power of sale contained in condition 4.4 above shall automatically cease on the happening of any event or default which would cause OCL reasonably to consider that its Title to the Products may adversely affect and the Buyer shall notify OCL forthwith of the happening of any such event or default.

4.9.      Upon determination of the Buyers power of sale pursuant to condition 4.6 above the Buyer shall place any of the Products in the possession or under control of the Buyer and unsold at the disposal of OCL and OCL shall be entitled to enter upon the premises of the Buyer for the purpose of removing such Products.

5.         Warranty

5.1.      OCL hereby warrants its title to the goods but save as to this warranty as to title no other warranty condition or other terms to the characteristics of the goods their quality or fitness for any purpose is given or accepted and any warranty condition or other such term whether implied by statute at common law or otherwise is hereby excluded from this contract notwithstanding that the purpose for which the Products are to be used is made known to OCL.

5.2.      Without prejudice to the above:

5.2.1.    OCL reserves the right to refuse to accept at its own discretion any repeat orders for specialised Products made specifically to the Buyers requirements;

5.2.2.    OCL does not warrant that instalments of or batches of repeat orders of any product shall comply with the specification or colour match of any other instalment batch order.  In the event that there shall be any said variation of specification or colour match the liability of OCL shall be limited to the invoice price of the instalment batch or order concerned.  It is the Buyer's absolute obligation to specify clearly the product being ordered and the specification required.  OCL accept no liability for the failure of the Buyer to order the correct product or specification.  Wherever appropriate OCL will endeavour to assist Buyers with technical advice and specifications but the Buyer shall at all times be responsible for ordering the correct product or specification and deciding upon fitness for purpose of the product.

5.3.      OCL reserve the right to alter the composition of the sample or example goods supplied to conform to any applicable standards or laws or otherwise within reasonable limits having regard to the nature of the goods and the purpose for which they are to be applied.

5.4.      OCL does not guarantee the suitability of goods made specifically to the Buyer's requirements and differing from OCL's standard specifications even if the purpose for which the goods are required is known to OCL.

5.5.      Any illustrations performance details examples of applications specifications and colours and all technical data in such literature are based on experience and upon trials under test conditions and are provided for general guidance only. No such information or data shall form part of the contract unless the Buyer shall have complied with the conditions laid out in the introduction relating to statements and representations and OCL shall have given the confirmation referred to in that introduction.

5.5.1.    In the event of the condition of the goods being such as might or would (subject to these conditions) entitle the Buyer to claim damages to repudiate the contract or to reject the goods the Buyer shall not then do so but shall first ask the Seller to supply satisfactory substitute goods and OCL shall thereupon be entitled at its option to supply satisfactory substitute goods free of cost and within a reasonable time or to repay the price of the Goods in respect of which their complaint is made.

5.5.2.    If OCL do so supply satisfactory substitute goods or effect repayment pursuant to condition 5.5.1 above, the Buyer shall be bound to accept such substitute goods or repayment and OCL shall be under no liability in respect of any loss or damage whatsoever arising from the initial delivery of the defective goods or from the delay before the substitute good are delivered or the repayment is affected.

6.         Miscellaneous

OCL shall have the right in its absolute discretion and without assigning any reason therefore and notwithstanding any contract the Buyer may have made with a third party to terminate without notice any agreement to make supplies to any person or to refuse or limit the amount of credit to be given to any person and to withhold supplies to any person.

7.         Patents & Trademarks & Health & Safety

No representation Warranty or Indemnity is given by OCL that the Products do not infringe any Letter Patent Trade Mark Registered Designs or other industrial rights.  In compliance with the Health & Safety at Work Act 1974 OCL's Product Labels give (as required by the Statutory Regulations for the labelling of Paint Ink and other ancillary products) information of known hazards associated with the Product and sales literature states their properties. However, almost all Products may be hazardous in certain conditions if handled and applied without due care. OCL's resources are available on request to provide any information Buyers may require in order to meet their obligations under the Safety at Work Act 1974.   The Buyer shall after delivery of the Products be solely responsible for their safe and satisfactory storage and shall be responsible for complying with any statutory or other requirements with regard to the storage used or handling of the Products.  The Buyer shall indemnify OCL against any claim by any Third Party caused by Products delivered by OCL proving not to be fit and suitable for such Third Party's purposes for any reason.

8.         Extent of Liability/Quality

8.1       OCL operates within the E.C. standard IS0-9000/2 (BS5750) to ensure the highest possible standard of excellence of control, workmanship and materials used throughout the manufacturing of the Products.  All Products are manufactured to BSEN9002 standard details of which are available on request.  OCL stipulates that it will make appropriate representations where requested as to quality and fitness for a particular purpose and as to merchantability of any Products sold or supplied by it. 

8.2       OCL will give the most sympathetic consideration to any complaint as to either manufacture or workmanship and if in its sole discretion it comes to the conclusion that such complaint is justified it will be prepared to deal with the same in the manner in which in its absolute discretion it sees fit.

8.3       For OCL to consider any claim the following provisions must be honoured:

8.3.1     Any problem must be notified to the sales department as soon as the problem is identified but in any event within three working days.  Three working days is considered reasonable given the nature of the Products.

8.3.2     A detailed written explanation of the problem must be sent to the sales department as soon as possible but in any event within seven days.

8.3.3     OCL and any person working for or on its behalf must be given full and immediate access to all information documentation and material (including access to sites). 

8.3.4     All and any complaints must be made in good faith and the Buyer must co-operate with OCL or its representatives in any areas where OCL in its absolute discretion deems such co-operation to be necessary.

8.3.5     In all circumstances a Buyer must use (or ensure that a third party uses) any Products supplied to it for a specific purpose, for that purpose alone and in accordance with all instructions and advice given by OCL.

8.3.6     Except in circumstances where OCL makes an offer of redress which is refused by the Buyer (any such offer being made without prejudice to its position generally), or in respect of death or personal injury caused by the OCL's negligence, OCL shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the contract, for any indirect or similar loss or damage, including loss of profits, loss of margin, loss of use, loss of contract, loss of goodwill, costs, fees and expenses or other claims for compensation which arise out of or in connection with the supply of the Products or their use by the Buyer, and the entire liability of OCL under or in connection with the contract shall not exceed three times the price of the Products, except as expressly provided in these conditions. 

9.         Governing Law

This Agreement will be governed by and construed in accordance with English Law.  The Buyer irrevocably submits in respect of all matters and disputes arising out of this Agreement to the exclusive jurisdiction of the English Courts.

10.       Assignment

This Contract is personal to the Buyer and may only be assigned with the written consent of OCL.

11.       Payment & Discount

11.1.     Unless otherwise agreed in writing payment shall be due and payable by the last day of the month following the date of invoice.  If OCL considers the creditworthiness of the Buyer to have deteriorated after the date of the contract OCL shall be entitled to require payment prior to delivery.  The time for payment shall be of the essence of the contract.

11.2.     OCL shall be entitled to submit its invoice(s) at any time after the goods are ready for delivery or would have been ready in the ordinary course but for the Buyers request or default.

11.3.     Where goods are delivery by instalment separately the Buyer shall pay such invoices in accordance with these conditions.

11.4.     No disputes arising under the contract nor delays otherwise than due to default by OCL shall interfere with prompt payment in full by the Buyer.

11.5.     In the event of default in payment by the Buyer OCL shall be entitled without prejudice to any other right or remedy to do all or any of the following:

11.5.1.  to suspend all further deliveries under the contract and under any other contract(s) between OCL and the Buyer then current without notice;

11.5.2.  to charge interest on any amount outstanding at the rate of 2% above the base rate of National Westminster Bank plc such interest being charged as a separate continuing obligation not merging with any judgment;

11.5.3.  to serve notice on the Buyer requiring immediate payment for all goods supplied by OCL under this and all other contracts with the Buyer whether or not payment is due or invoiced;

11.5.4.  to sue for the price of the goods notwithstanding that title has not passed to the Buyer.

12.       Cancellation of Orders

Orders for Products may not be cancelled or suspended without OCL's prior written consent.  Any cancellation or suspension of an order which OCL does not agree to shall be on the condition that the Buyer shall indemnify OCL against any loss incurred wholly or in part by the cancellation or suspension.

13.       Return of Products

No Products are supplied on a sale or return basis.  There should be no liability on OCL to accept returned Products.  Any Products returned by a Buyer or anybody acting on his behalf will remain the risk of the Buyer and OCL for the avoidance of doubt confirms that no liability of any description is accepted in respect of returned Products.

14.       Confirmation of Orders

14.1.     In order to avoid orders being duplicated all orders that are confirmation of orders previously placed shall clearly indicate the fact.   Unless clear indication is given that any order verbal or written the Buyer shall accept delivery of the Products and pay for the same in full.

14.2.     Where the Buyer orders non-standard Products which are specifically manufactured or produced to his unique requirements the Buyer shall accept the supply or a quantity whether more or less within 10% of the stipulated amounts in such circumstances the Invoice value of the goods shall be subject to a corresponding adjustment.

15.       Export

15.1.     Without prejudice to these Conditions of Sale Products for export shall be at the Buyer's risk from the time of collection by the Freight Carrier from the Company's works.  All prices quoted are ex-works OCL's premises and will be exclusive of all taxes duties insurance packing and freight unless otherwise expressly quoted for in writing and any other costs incurred by OCL but not included in the price of the products.

15.2.     The uniform Law on international sales shall not apply to this contract.  The terms of payment shall be as specified in writing by OCL.

15.3.     Where the prices quoted are in any currency other than sterling these prices are based on the relevant exchange rate of the currency concerned ruling on the date of quotation and OCL reserves the right to vary the prices if there shall be any change incurred in the rate at the time of despatch.