ANGLO AMERICAN WOODSMITH LIMITED

TERMS AND CONDITIONS FOR THE SALE OF SECONDHAND GOODS

1.             DEFINITIONS AND INTERPRETATION

1.1         In these Conditions,         the following terms shall have the following meanings:

Agreement                 the Agreement between the Company and the Buyer for the supply of Goods incorporating the Order, these Conditions, the Particulars and any other documents referred to in these documents.

Business Day           any day which is not a Saturday, a Sunday, Christmas Day, Good Friday or a bank holiday in England. 

Company                    Anglo American Woodsmith Limited, Company Registration Number 07251600; Registered Office: 17 Charterhouse Street, London EC1N 6RA; Contact address and address for service of any Agreement correspondence: Resolution House, Lake View, Scarborough YO11 3ZB.

Company’s Service

Provider                    Liquidity Services UK Ltd incorporated and registered in England and Wales with registered number 4092016, with VAT registration number GB 872 7481 89 and with registered address at c/o Corporation Service Company (UK) Limited, 5 Churchill Place, London, England, E14 5HU who have been appointed by the Company to market the Goods for sale and collect sales proceeds from the Buyer.

Conditions                these terms and conditions for the purchase of Goods.

Confidential

Information               means all information of a confidential nature disclosed by whatever means by the Company (the Disclosing Party) either directly or from any person associated with the Disclosing Party, to the other party (Receiving Party) which concerns the business, operations or Buyers of the Disclosing Party and includes the provisions and subject matter of this Agreement, the negotiations relating to this Agreement and any agreements or documents executed by the Parties in connection with this Agreement.

Delivery                       Delivery of Assets shall take place on an EX WORKS (Incoterms) basis.

Delivery Date            The date that that the Company will make the Goods available to the Buyer, as set out in the Particulars.

Delivery Point          Warehouses at AV Dawson site, Riverside Park Road, Middlesbrough TS2 1HG unless otherwise set out in the Particulars.

Goods                          the goods to be provided by the Company as set out in the Particulars.

Particulars                 the document(s) which set(s) out the details of the Goods provided by the Company and which constitute the Order.

Order                            the Buyer’s order for the Goods, as detailed on the Particulars once accepted by the Company.

Parties                          shall mean the Company and the Buyer and ‘party’ shall refer to one or other as the context shall require

Buyer                             the entity to whom the Company sells the Goods, as stated in the Order.

1.2         In these Conditions:

1.2.1        any term importing the singular includes the plural and vice versa;

1.2.2        a reference to a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s successors and permitted assigns; and

1.2.3        clause headings are for ease of reference only and will not affect interpretation.

2.             FORMATION AND TERMS OF AGREEMENT  

2.1         Issuance of the Particulars to the Buyer constitutes an offer by the Company to sell the Goods to the Buyer in accordance with these Conditions.

2.2         The offer will be deemed to be accepted and Agreement formed on the earlier of (i) the Buyer returning a signed and dated copy of the Particulars or (ii) any act by the Buyer consistent with the commencement of fulfilment of the Order.

2.3         These Conditions apply to the Agreement to the exclusion of any other terms that the Buyer seeks to impose or incorporate regardless of the timing of issuing the same to the Company.

2.4         The Agreement constitutes the entire agreement between the Parties in connection with its subject matter and supersedes all prior representations, negotiations and agreements concerning the subject matter of the Agreement.

2.5         If any provision of the Agreement is held by a court or other competent tribunal to be invalid or unenforceable, it will be severable and will be deemed omitted from the Agreement to the extent necessary to prevent such invalidity or unenforceability, and the remaining provisions will continue to have full effect.

3.             QUALITY OF GOODS

3.1         The Company warrants to the Buyer that the Goods will correspond with their description in the Particulars.

3.2         The Buyer may inspect the Goods by giving the Company 72 (seventy-two) hours prior notice up to the Delivery Date and the Company will provide the Buyer any maintenance and preservation records that it has in relation to the Goods. If, following such inspection, the Buyer considers that the Goods are not in acceptable condition, then the Buyer shall have the right to terminate this Agreement.

3.3         Except as set out in clause 3.1, the Company makes no representations, nor does it provide any guarantees or warranties whatsoever, express or implied, of quality, merchantability, fitness or suitability of the Goods for any particular purpose or otherwise.

4.             DELIVERY OF GOODS

4.1         The Goods shall be delivered on an EXW Delivery Point Incoterms 2020 basis.

4.2         Delivery shall take place when the Goods are  placed at the disposal of the Buyer at the Delivery Point, prior to any loading operations on the performing vehicle.

4.3         The Company guarantees that the Buyer's performing vehicle can safely approach, reach, access, lie, load, and depart from the Delivery Point.

5.             TITLE, RISK AND INSURANCE

5.1         Title to the Goods shall pass from the Company to the Buyer on Delivery.

5.2         On the passing of title from the Company to the Buyer, the Company confirms that the Buyer will have full title and ownership to the Goods and immediate right of possession free and clear of any and all security, third-party rights or interests (whether possessory or legal).

6.             PRICE AND PAYMENT

6.1         The price for the Goods will be set out in the Particulars (Price) and the Company’s Services Provider will provide the Buyer with an invoice for the Goods.

6.2         The Price must be paid before the Delivery Date by way of telegraphic transfer to the Company’s Services Provider’s bank account as set out in the invoice.

6.3         If the Buyer fails to pay the Price before the Delivery Date, then:

6.3.1        the Company will not be required to deliver the Goods in accordance with clause 4 until the Price is paid;

6.3.2        the Buyer will pay interest on the overdue sum at the rate of 2% over the Bank of England base rate from time to time from the Delivery Date until payment is made

6.3.3        the Buyer shall indemnify the Company for any costs associated with the delay of delivery of the Goods.

7.             INDEMNITY  

7.1         The Buyer will be liable for, and will indemnify the Company on demand against and from:

7.1.1        any claim made against the Company arising out of or in connection with the supply and use of the Goods; and

7.1.2        any claim made against the Company for infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods.

This clause 7 shall survive termination of the Agreement.

8.             CONFIDENTIALITY & PUBLICITY

8.1         The Receiving Party will keep confidential and shall use all reasonable endeavours to prevent its employees and agents from making any disclosure to any person of any such Confidential Information and will not at any time disclose to any person any Confidential Information except:

8.1.1        to the Receiving Party’s employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the Receiving Party’s obligations under the Agreement; and

8.1.2        as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

8.2         The Receiving Party will not use the Confidential Information for any purpose other than to perform its obligations under the Agreement, except with the written consent of the Company.

8.3         The Receiving Party shall not itself, its employees or agents and shall procure that its subcontractors shall not communicate with representatives of the press, television, radio or other communications media on any matter concerning the Agreement without the prior written approval of the Company.

8.4         Notwithstanding anything to the contrary and unless otherwise agreed between the Parties in writing the obligations in this clause 12 shall survive expiry or earlier termination of the Agreement.

9.             TERMINATION

9.1         Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

9.1.1        the other party commits a material breach of the Agreement and fails to remedy that breach within a period of ten (10) Business Days after being notified in writing to do so and for the avoidance of doubt a failure by the Buyer to pay the Price shall be deemed a material breach of the Agreement;

9.1.2        the other party is subject to a winding-up order, or a resolution for its voluntary winding-up is passed, or a receiver or receiver manager is appointed in respect of it, or possession is taken by or on behalf of any creditor of any of its property that is the subject of a charge, or a voluntary arrangement is made for a composition of its debts or a scheme of arrangement is approved under any applicable insolvency legislation in respect of it, or an administration order is made or an administrator is appointed in respect of it;

9.1.3        the other party commits an act of gross negligence being a tortious act or omission by its personnel, well in excess of negligence and amounting to an intentional disregard of a grave, known risk, where such disregard constitutes an extreme deviation from even minimal care.

10.         CONSEQUENCES OF TERMINATION 

10.1     On termination of the Agreement the Company will be entitled to claim damages for any additional costs, loss or expenses incurred by the Company which are in any way attributable to the termination.

11.         FORCE MAJEURE 

11.1     Neither party will be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under it if:

11.1.1    such delay or failure results from an event, circumstance or cause that materially and adversely affects its performance, and

11.1.2    such event, circumstance or cause could not have been predicted, prevented, overcome or remedied through the exercise of due care, and

11.1.3    which is not attributable to the negligence, breach of Agreement, or wilful misconduct of such party, and

11.1.4    the effect on performance could not have been prevented, overcome or remedied through the exercise of due care.

11.2      If the period of delay or non-performance continues for 1 calendar month, the party not affected may terminate the Agreement by giving ten (10) Business Days’ notice to the affected party, in which case clause 14 will apply.

12.         ASSIGNMENT

12.1     The Company may assign the benefit of the Agreement without the Buyers’s consent.

12.2     The Buyer may not assign or charge the benefit of the Agreement or any right arising under it without the Company’s prior written consent.

13.         LIMITATION OF LIABILITY

13.1     Except as set out in clause 10.1, and save in respect of liability for fraud, death or personal injury caused by negligence, neither Party shall in any circumstances be liable to the other Party as a result of its performance of, or failure to perform, the Agreement or any provision in the Agreement, whether in contract, tort or breach of statutory duty or howsoever arising for: (a) any loss of profit, anticipated profit or revenue, any loss of savings or anticipated savings, any loss of production, any loss of use, any loss of contract or business opportunity, any loss of or damage to goodwill or any business interruption, whether of a direct or indirect nature; (b) any special, indirect and/or consequential losses; or (c) punitive, exemplary or special damages.

13.2     Notwithstanding anything to the contrary in the Agreement, the Company’s total liability to the Buyer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising out of or in connection with this Agreement shall be limited to 100% of the Price.

14.         NOTICES

14.1     Any notice required to be given or served under the Agreement must be in writing and must be delivered by hand or sent by first class post to:

14.1.1    for the Company: Resolution House, Lake View, Scarborough YO11 3ZB for the attention of Rachel Dolby.

14.1.2    for the Buyer: the address and party stated in the Order.

14.2     Notices will be deemed to have been received, if delivered by hand, on the date and at the time of delivery (as evidenced by a signed delivery receipt), or if sent by first class post, at 9:00am on the second Business Day after the date of posting

15.         CONTINUING OBLIGATIONS

Save as otherwise expressly provided in the Agreement or as already taken into account in the calculation of any sum under clause 14.1.1 (subject to clause 14.1.4) or other payment on termination pursuant to this Agreement, termination of the Agreement shall be without prejudice to the Parties’ accrued rights and remedies and any provision of the Agreement that by implication is intended to survive termination of the Agreement will remain in full force and effect.

16.         THIRD PARTY RIGHTS 

A person who is not a party to the Agreement does not have any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.

17.         GOVERNING LAW AND JURISDICTION

The Agreement will be governed by English law and the English courts will have exclusive jurisdiction regarding all matters arising under it.

18.         ORIGINAL EQUIPMENT MANUFACTURER INTELLECTUAL PROPERTY

The Original Equipment Manufacturer has confirmed its consent to the sale of the Goods by the Company to the Buyer and has confirmed its consent that any intellectual property rights and/or any licence required to operate and/or maintain the Goods are fully transferable to the Buyer for the purposes described by the Buyer during the sales process.  Buyer confirms its acceptance of these terms and that it will secure the Original Equipment Manufacturer’s consent for any future transfer to a third party of the intellectual property rights and/or any licence required to operate and/or maintain the Goods. The Buyer shall be liable for and indemnify the Company against any claim made against the Company arising out of or in connection with the Buyer’s failure to secure the consent of the Original Equipment Manufacturer in the terms stated herein.