Burgess Procurement

1. DEFINITIONS:

The following words and phrases have the following meanings:

“the Company”, “we”, “us” and “our” shall mean Prestige Yacht Services Ltd;

“Contract” shall mean the contract for the purchase and sale of Goods on these Terms;

“Customer”, “you”, and “yours” shall mean the person, firm or company who purchases, or offers to purchase the Goods from the Company, or to whom a quotation is directed in respect of Goods;

“Goods”: goods, facilities and/or services (including any instalment of goods or part of them) which the Company is to supply in accordance with these Terms;

“Special Terms”: any terms and/or conditions individually negotiated and expressly agreed in writing between the Company and the Customer which incorporate or amend these Terms.

General: the following rules apply:

(a) Reference to a statute or statutory provision is reference to such statute or provision including any subordinate legislation made under it as amended or re-enacted.

(b) Reference to a “Party” is a reference to a party to this Contract.

(c) A reference to writing or written includes faxes and e-mails.

(d) Quotations do not constitute an offer. Orders placed with the Company shall not be binding on the Company or deemed accepted unless the Company issues a written acknowledgement of order.

(f) These Terms, any Special Terms and the Contract shall apply to all Company quotations, orders and contracts for the sale and/or supply of Goods (“Order”) and set out the entire terms and conditions regulating the sale and supply of Goods by the Company, to the exclusion of any other terms and/or conditions, including any that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing between the parties. Where any inconsistency occurs between the interpretation of these Terms and any applicable Special Terms, the Special Terms shall prevail. No variation to these Terms shall be binding unless agreed in writing between the Customer and the Company.

(g) Any advice or recommendation given by the Company as to the storage, applications or use of the Goods which is not confirmed in writing by us, is followed or acted upon entirely at the Customer’s own risk.

(h) While every effort will be made to supply Goods in accordance with the quality of samples submitted or quoted for, this cannot be guaranteed and no condition or warranty to this effect shall be implied.

(i) In the event of the Customer wishing to return unwanted Goods the Company will accept Goods at its discretion and a restocking fee will be charged. The Company will advise the Customer on whether refunds are available. If no refund is available the Company will use its reasonable endeavours to sell the Goods on behalf of the Customer. The Customer shall be liable for all freight, storage and disposal charges. Goods that remain unsold 6 months after the date of return to the Company shall become the Company’s property and may be disposed of by the Company without further notice to the Customer.

2. QUOTATIONS AND ORDERS

2.1 The Company’s quotations are valid for 30 days.

2.2 Each Order or acceptance of a quotation for Goods by the Customer from the Company shall be deemed to be an offer by the Customer to buy Goods subject to these Terms.

2.3 Estimates and quotations are subject always to the accuracy of information provided by third party suppliers and will not normally include the cost of any additional freight or insurance costs nor the cost of any expenses which are beyond our control.

2.4 A Contract will form upon acceptance of the Order by the Company.

3. DELIVERY AND STORAGE

3.1 Goods are delivered ex works Exeter (EXW INCOTERMS 2010) unless otherwise agreed (“Delivery”).

3.2 Dates quoted for Delivery are approximate only and time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods caused by a Force Majeure event (as defined in Clause 10.4) or the Customer's failure to provide instructions that are relevant to the supply of the Goods.

3.3 The Company shall store the Goods until delivery takes place and charge for all related costs and expenses (including insurance).

3.4 If 20 days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery, or storage terms are not mutually agreed (the Company acting reasonably and in good faith), the Company may resell or otherwise dispose of part or all of the Goods.

3.5 The Company’s obligation as custodian of goods accepted for storage ends on its notice to the Customer of termination of that obligation.

3.6 If the Company delivers in instalments to the Customer, then each instalment is a separate Contract to be invoiced and paid for in accordance with these Terms. No cancellation or termination of any one Contract or instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment. If payment is not made to the Company in accordance with the terms of the Contract then the Company may withhold or cancel delivery of any other of the Customer’s Orders which have not yet been delivered.

3.7 The quantity of any consignment of Goods as recorded on despatch from the Company's place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.

3.8 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company's negligence) unless the Customer gives written notice to the Company and to the carrier of the non-delivery within 5 days of the date when the Goods were due to be delivered to the Customer.

3.9 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.

3.10 If Goods are damaged or supplied short, then the Customer must notify the Company in writing within 5 days of receipt of the Goods and keep those Goods should the Company wish to inspect them before it decides what action to take under clause 4.2.

4. WARRANTIES

4.1 The Company does not manufacture any items and will only procure and supply proprietary articles specifically requested by you. No proprietary article shall carry any express or implied term as to its quality or its fitness for any particular purpose unless stated by the manufacturer or importer in writing but we will assign and/ or transfer to the fullest possible extent to the Customer all warranties provided by the manufacturer or importer of each such article as well as any rights we may have against the manufacturer or importer of that article.

4.2 The Company shall not be liable for any damage during transit unless you notify us within 5 days of receipt of the damaged article and if asked to do so by the Company you promptly return such Goods to our place of business for examination. The Company shall at its option repair or replace such Goods (or the defective part) to ‘as new’ standard or issue a credit for such Goods at the pro rata Contract rate. Any Goods returned and then replaced shall belong to the Company. The Company shall not be liable for a breach of this warranty if:

(i) you make any further use of such Goods after giving such notice;

(ii) the defect arises from wear and tear, wilful damage, negligence, abnormal working conditions or because you failed to follow the Company's or manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;

(iii) the Contract price has not been paid in full.

5. TITLE AND RISK

5.1 In the case of Goods despatched from a third party to the Company’s premises, the risk in the Goods shall pass to the Customer at the time when the Company notifies the Customer that the Goods are available for collection/ onward shipping; or in the case of Goods delivered directly to the Customer, at the time of Delivery or when the Company has tendered delivery of the Goods, whichever is earlier.

5.2 Title to the Goods shall not pass to the Customer until the Company has received payment in full for the same and all other sums which are or which become due to the Company from the Customer on any account. Until title has passed to the Customer, but after the passing of risk as aforesaid, the Customer shall:

(i) hold the Goods on a fiduciary basis as the Company's bailee;

(ii) not remove, deface or obscure any identifying mark or packaging on or relating to Goods; and

(iii) maintain the Goods in satisfactory condition and keep them insured against all risks customarily insured for their full price from the date of delivery.

6. PRICE AND PAYMENT

6.1 Unless otherwise agreed between us the price of Goods shall be due immediately on invoice date. Time of payment is of the essence.

6.2 The Contract price for the Goods shall be exclusive of any value added tax and of all costs or charges in relation to packaging, loading, unloading, carriage, transport and insurance which shall be charged to the Customer and paid on demand. The Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

6.3 The Customer shall make all payments due under the Contract in full and in cleared funds within the time stated without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise. If the Customer fails to pay the Company any sum when due:

(i) the Company will be entitled to charge the Customer interest at 5% above the current base lending rate of Barclays Bank PL, compounded daily, on the amount outstanding until it has been paid in full, such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and

(ii) the Company will be entitled to sue for the money and all costs incurred by the Company in connection with the Contract whether or not title or risk in the Goods has passed to the Customer.

6.4 The Company may, by giving notice to the Customer at any time before Delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

(i) any factor beyond the Company's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification or any delay caused by any instructions or failure of the Customer to give the Company adequate or accurate information or instructions.

6.5 Maritime Law entitles the Company in certain circumstances to bring action against a vessel to recover a debt or damages. Without prejudice to any of its other rights against the Customer, the Company shall in respect of all unpaid debts also have a general lien on all Goods and other property of the Customer in its possession and shall be entitled if any part of such debts shall remain unpaid at the expiration of 14 days after giving written notice to the Customer requiring payment thereof to dispose of such property as it thinks fit and to apply the proceeds of sale (if any) in or towards payment of such debts.

7. LIABILITY AND LIMITATIONS

7.1 No representation, warranty, condition or term applies to any of the Goods save as expressly set out in these Terms or Special Terms. The warranties in clause 4 are in lieu of all other warranties or representations express or implied. The Customer’s sole remedy for any breach of such warranties is as set out in clauses 4.1 and 4.2.

7.2 In no event shall the Company, its affiliates, officers, directors or employees be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, damage to the Customer’s property or property of another person or body, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company's negligence) nor shall any reasonable delay entitle the Customer to terminate or rescind a Contract, whether arising in contract, tort (including negligence) or otherwise. "Loss" includes a partial loss or reduction in value as well as total loss.

7.3 Subject to clause 7.4 below, the total collective liability of the Company, its affiliates, officers, directors and employees, for claims under any Contract (and whether the liability arises because of breach of contract, in tort or for any other reason) shall be limited to £20,000 (Twenty Thousand Pounds Sterling). This limit of liability is cumulative and not per incident. The Company shall ensure it has adequate insurance in place to cover its liabilities hereunder.

7.4 Nothing in these Terms shall limit or exclude the Company's liability for fraud or fraudulent misrepresentation or any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

8. TERMINATION, CANCELLATION OR SUSPENSION

8.1 The Company may cancel or suspend all further deliveries under the Contract and may terminate any Contract and its involvement with a Customer, project or event in any case without incurring any liability to the Customer in the event of or if the Company reasonably believes that the Customer is about to become subject to, any of the following events:

(i) the Customer fails to pay on time and such sum remains unpaid for 14 days after written notice from the Company that such sum has not been paid;

(ii) you conduct any illegal or unethical activity in your business;

(iii) circumstances beyond the Company’s control make continued performance impracticable;

(iv) the Customer suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due;

(v) the Customer's financial position deteriorates to such an extent that in the Company's opinion your capability to adequately fulfil obligations under the Contract are placed in jeopardy.

8.2 If you, or the Company, terminate the Contract you will remain responsible for the Company’s charges incurred up to termination together with any committed costs and expenses properly incurred by the Company and notified to the Customer.

9. BRIBERY

9.1 The Parties hereby undertake and agree that they shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010 (together, Bribery Laws) and shall have their respective own anti-bribery policies and procedures under such Bribery Laws. The Parties shall promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of any Contract.

10. GENERAL

10.1 The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract, provided always that the Company shall remain fully responsible for the performance of its obligations under the Contract in all respects. Any such assignee or sub-contractor shall have the protection and benefit of all rights and conditions and of all limitations and exclusions of liability, contained in these Terms.

10.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed).

10.3 The Customer shall provide all reasonable co-operation allowing the Company to supply the Goods in accordance with its obligations.

10.4 Force Majeure: Neither Party shall be liable to the other if it is prevented from or hindered or delayed in performing any obligations under any Contract by reason of any circumstances beyond its reasonable control and foreseeability. The Party so affected shall promptly notify the other and shall use all reasonable commercial endeavours to remove or avoid their cause or effect. If such circumstances continue after a period of three (3) months from the date of such notice, either Party shall have the right to terminate the Contract forthwith on written notice to the other.

10.5 Notices: Shall be sufficiently served if personally given or if sent by first class post to the Party’s last known address. Notices to us should be sent by first class post to our principal trading address.

10.6 Third party rights: these Terms are not intended nor shall they create any rights, entitlement, claims or benefits enforceable by any person that is not a party to the Contract, whether pursuant to the Contracts (Rights of Third Parties) Act 1999, at common law or otherwise.

10.7 Governing law and jurisdiction: the Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non contractual disputes or claims), shall be governed by, and construed in accordance with, English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales. The Parties shall negotiate in good faith to amicably resolve any dispute within 14 days of it arising before pursuing other remedies available to them.