These Terms and Conditions (“the Terms”) will apply to and govern any contract between Kinetico UK Limited of Bridge House, Park Gate Business Centre, Chandlers Way, Park Gate, Southampton, Hampshire, SO31 1FQ (herein after called “Kinetico”) and the purchaser whether deemed to be a domestic dealer or an industrial purchaser (the “Purchaser”).

For the purpose of these Terms a Domestic Dealer shall mean a purchaser that deals with residential business (the “Domestic Dealer”). No additional terms and conditions put forward by the Purchaser, whether printed on the Purchaser’s documents or in any other form, shall apply unless they are separately brought to the attention of Kinetico who expressly consents in writing to the incorporation of such terms and conditions.

If the Purchaser is a Domestic Dealer, these Terms shall incorporate the terms of Kinetico UK Limited Domestic Dealer Agreement (“Dealer Agreement”), unless the Domestic Dealer has signed an Exclusive Dealer Agreement in which event these Terms shall incorporate the Exclusive Dealer Agreement. For the purposes of the Dealer Agreement the Dealer shall be deemed to be the Purchaser. In the event of any conflict between these Terms and the terms of the Dealer Agreement or the Exclusive Dealer Agreement, the Dealer Agreement or the Exclusive Dealer Agreement shall take precedence.

For the avoidance of doubt this clause shall not apply to a Domestic Dealer in which instance the contract shall be formed in accordance with the terms of the Dealer Agreement. Following discussions with the Purchaser, any quotation (“the Quotation”) given by Kinetico to the Purchaser shall be treated as an offer and shall remain open for acceptance by the Purchaser for a period of thirty (30) or sixty (60) days as stated in the Quotation, unless Kinetico chooses to withdraw the offer before acceptance. Any extended periods of acceptance must be expressly agreed between the parties in writing. Depending upon the size of the order, on receipt of the order Kinetico may send an order acknowledgement letter to the Purchaser as confirmation of a binding contract.

4.1 Unless the parties agree otherwise in writing all prices quoted shall be Ex-Works Park Gate, Southampton (as defined in the Incoterms 2000).

4.2 Kinetico will only be responsible for damage or deterioration occurring to the goods during transit when the contract price includes the cost of delivery to the Purchaser’s premises or nominated site and only if the Purchaser notifies Kinetico in writing of such damage within five (5) days of delivery of the goods at the Purchaser’s premises or nominated site, and the Purchaser has not previously signed documentation as having received the goods in good condition.

5.1 Ownership of the goods shall not pass to the Purchaser until Kinetico has received in full (in cash or cleared funds) all sums due to it plus VAT in respect of the goods delivered to it pursuant to this Agreement; and all other sums which are or which become due to Kinetico from the Purchaser on any account.

5.2 Until ownership of the goods has passed to the Purchaser, the Purchaser must:

5.2.1 hold the goods on a fiduciary basis as Kinetico’s bailee;

5.2.2 store the goods (at no cost to Kinetico) separately from all other products of Kinetico or any third party in such a way that they remain readily identifiable as Kinetico’s property;

5.2.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the goods;

5.2.4 maintain the goods in satisfactory condition insured on Kinetico’s behalf for their full price against all risks to the reasonable satisfaction of Kinetico. On request, the Purchaser shall produce the policy of insurance to Kinetico;

5.2.5 and hold the proceeds of the insurance referred to in clause on trust for Kinetico and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

5.3 The Purchaser may resell the goods before ownership has passed to it solely on the following conditions:

5.3.1 any sale shall be affected in the ordinary course of Kinetico’s business at full market value; and

5.3.2 any such sale shall be a sale of Kinetico’s property on the Purchaser’s own behalf and the Purchaser shall deal as principal when making such a sale.

5.4 The Purchaser’s right to possession of the goods shall terminate immediately if:

5.4.1 The Purchaser has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any legislation for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Purchaser or for the granting of an administration order in respect of the Purchaser, or any proceedings are commenced relating to the insolvency or possible insolvency of the Purchaser; or

5.4.2 The Purchaser suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Terms or any other contract between the Purchaser and Kinetico, or is unable to pay its debts within the meaning of Clause 123 of the Insolvency Act 1986 or the Purchaser ceases to trade; or

5.4.3 The Purchaser encumbers or in any way charges any of the goods

5.5 Kinetico shall be entitled to recover payment for the goods, notwithstanding that ownership of any of the goods has not passed from Kinetico.

5.6 Until such time as the property in the goods passes from Kinetico, the Purchaser shall upon request deliver up to Kinetico such of the goods as have not ceased to be in existence or resold. If the Purchaser fails to do so Kinetico may enter upon any premises owned, occupied or controlled by the Purchaser where the goods are situated and repossess the goods. Upon the making of such a request the rights of the Purchaser under clause 5.3 shall cease.

6.1 Unless the parties agree otherwise, payment for goods supplied under these Terms is due in accordance with the payment terms stated in the Quotation. If no such terms are stated in the Quotation, payment shall be due thirty (30) days from the date of the invoice.

6.2 Where payment of the price or any part there of is not made by the due date Kinetico shall be entitled to:-

charge interest on the outstanding amount at the rate of 8% above the official dealing rate per annum or such rate as may be varied from time to time

6.2.1 pursuant to the Late Payment Commercial Debts (Interest) Act 1998. This rate will be charged daily for each day the payment remains overdue. Where principal and interest is owed, unless payment is accepted on other terms, any part payment of the debt will go to reduce the amount of interest first; and

6.3 recover from the Purchaser any costs incurred by Kinetico in pursuance of the debt, including reasonable legal fees; and

6.3.1 require payment in advance of delivery of any undelivered goods; or

6.3.2 refuse to make delivery of any undelivered goods without incurring any liability whatsoever to the

6.3.2.1.1 Purchaser for non-delivery or any delay in delivery.

7.1 If the Purchaser is deemed to be an industrial purchaser the following exclusions shall apply to all contracts and such exclusions may only be varied or deleted with the approval of Kinetico, evidenced by a signature of a Director of Kinetico against any deletion:

7.1.1 Kinetico shall not be responsible for any:

7.1.2 Civil Works including, but not limited to, buildings, trenches, drains; or

7.1.3 unloading of delivery vehicles, carriage, labour associated with this; or

7.1.4 site works not specifically included in correspondence and agreed to by Kinetico; or

7.1.5 chemical supplies whatsoever; or

7.1.6 costs of any delays howsoever arising; or

7.1.7 all specification other than those issued by Kinetico; or

7.1.8 electrical isolators; or

7.1.9 electrical supplies, wiring and cabling apart from inter-connecting electrical instruments and equipment with the limits of supply; or

7.1.10 variations in nature of input water or other governing data to the plant which directly or indirectly affects performance of the goods supplied by Kinetico.

Prices quoted shall exclude all VAT, import duty, local taxes, tariffs that may be applicable from time to time.

8.1 Kinetico hereby warrants that the goods it supplies will perform in accordance with the product specification provided with the goods for a period of twelve (12) months from the date of delivery, except:

8.1.1 when goods are installed and made fully operational by a third party the warranty shall not exceed fourteen (14) months from the date the goods were dispatched by Kinetico; and

8.1.2 when goods are deemed by Kinetico to be supplied to a subcontractor of the Purchaser, the warranty is as agreed in writing at the point of sale, which in any event shall be for a period no less than twelve (12) months from the date of delivery.

8.2 In respect of any services to be provided to the Purchaser, Kinetico shall perform any such services using reasonable care and skill.  Kinetico hereby warrants that any replacement parts provided to the Purchaser as part of the service will perform in accordance with the product specification provided with the replacement parts for a period of twelve (12) months from installation.

8.3 Save as expressly provided in this clause 8, all other conditions, warranties, terms, undertakings and representations of any kind whatsoever, express or implied, whether by statute, common law or otherwise, in respect of the goods are herby excluded by Kinetico to the fullest extent permitted by law and Kinetico shall have no other obligation, duty or liability whatsoever in contract, tort, statute or otherwise to the Purchaser.

9.1 Notwithstanding any other clause of these Terms, Kinetico and the Purchaser do not exclude or limit liability for:

9.1.1 personal injury or death arising from the negligence or willful default of either party, its servants, dealers or subcontractors; or

9.1.2 any fraudulent misrepresentation.

9.2 Kinetico shall not be liable to the Purchaser whether in contract, tort, by statute or otherwise in respect of any loss of profits and/or for any special, indirect, incidental or consequential loss or damage suffered by the Purchaser howsoever caused including without limitation:

9.2.1 loss due to delay in delivery etc.; and/or

9.2.2 loss of production; and/ or

9.2.3 loss of profits; and/or

9.2.4 loss of use; and/or

9.2.5 loss of business; and/or

9.2.6 loss of goodwill; and/or

9.2.7 loss of anticipated savings; and/or

9.2.8 loss to other property; and

9.2.9 loss relating to the procurement by the Purchaser of any substitution goods and services.

For the avoidance of doubt, neither the type of loss and/or damage specified above in this clause 9, nor any similar type of loss and/or damage shall constitute direct loss for the purpose of the contract.

9.3 Except as expressly provided in clause 9, the total liability of Kinetico under these Terms shall not exceed the value of the goods in each order or the combined value of the services and the goods to be provided, if services are to be provided.

9.4  A person who is not a party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the contract, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

9.5 Kinetico shall not be held responsible for any event beyond the reasonable control of Kinetico which prevents Kinetico from performing its obligations under these Terms.

Kinetico shall notify the Purchaser when the goods are available for collection and delivery. If the Purchaser is to either collect the goods from Kinetico or provide delivery instructions and details to Kinetico to allow Kinetico to deliver the goods and the Purchaser fails to do so within fourteen (14)

days after notice that the goods are available, Kinetico shall at its sole discretion, either deliver the goods to the Purchaser at the expense of the Purchaser or arrange storage of the goods at the expense of the Purchaser. Kinetico will notify the Purchaser of all additional charges incurred by Kinetico including, but not limited to, storage, insurance and delivery costs for which the Purchaser shall make immediate payment on receipt of an invoice from Kinetico. Goods shall not be released to the Purchaser until all additional charges have been paid.

All goods are at the risk of the Purchaser from the time of collection by the Purchaser or the time of delivery by Kinetico.

Any notice or other communication to be given under or in connection with this Agreement shall be given in writing and sent by first class post, e-mail or facsimile to the registered address of each party or such other address as either party may substitute by written notice to the other. A notice shall be deemed delivered within three (3) working days of posting in the case of first class post; twenty four (24) hours after sending the e-mail in the case of e-mail and on completion of the transmission in the transmission report in the case of facsimile.

Any notice or other communication to be given under or in connection with this Agreement shall be given in writing and sent by first class post, e-mail or facsimile to the registered address of each party or such other address as either party may substitute by written notice to the other. A notice shall be deemed delivered within three (3) working days of posting in the case of first class post; twenty four (24) hours after sending the e-mail in the case of e-mail and on completion of the transmission in the transmission report in the case of facsimile.

14.1 If requested by the Purchaser, Kinetico shall visit the site where the goods are to be, or have already been installed.  Such visits to occur at intervals to be agreed between the parties to supervise the installation and confirm that the goods are fully operational.  Kinetico shall give the Purchaser prior notice of each visit

14.2 In addition to purchasing the goods, there will be a cost for this service and an extra charge will be made for materials used during the visits and where applicable additional charges will be made for hotel accommodation and reasonable expenses incurred.  Prices quoted are based on work to be carried out during normal working hours (8:30am-5.00pm GMT) Monday to Friday inclusive, but excluding Bank Holidays in England and Wales.  Additional charges may be incurred for any work carried out outside these hours.  On completion of each service visit the Kinetico Engineer will provide for signature a report which the Purchaser will sign as acknowledgement of the visit.  Service work will be carried out in accordance with the particulars and specifications of Kinetico.

14.2.1 These Terms and Conditions of Business shall be subject to and construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the English Courts.