1. General Scope

The terms and conditions delineated herein shall be the sole terms and conditions which apply to all of CODEX DIGITAL LTD (CODEX)‘s current and future business transactions. Unless CODEX has approved of such in writing, any terms or conditions which conflict with, deviate from or modify the terms and conditions delineated herein shall not be binding on CODEX irrespective of whether CODEX had prior notice of such terms or conditions. 

2. Contract Formation

2.1 Any offers made by CODEX shall be without obligation and subject to change without notice provided that the parties have not agreed to a lock-up period.

2.2 The customer is bound to its order for a period of four weeks after its receipt by CODEX. A contract is deemed to exist upon the customer‘s receipt of CODEX‘s written confirmation regarding the order or the effective delivery of the applicable goods to the customer pursuant to the terms hereof.

2.3 The scope and type of delivery for an order shall be established solely through CODEX‘s written confirmation relating to such order. Any errors or omissions in CODEX‘s sales prospectus, pricelists, offer documents or other related documentation may be amended without CODEX incurring any liability for damages or compensation in relation to such errors or omissions.

3. Payment, Set-Off, Withholding

3.1 The purchase price for the contract shall be that price which is specified by CODEX for such contract and shall apply ex works, exclusive of any value added tax; if the price is not indicated, the pricelist then in effect shall apply. If the sale has occurred through delivery to a place other than the place of performance (at the customer‘s request), any costs incurred for packaging, shipping, freight, customs or other related costs will be charged separately. If the customer fails to accept delivery when tendered by CODEX, it must nevertheless make payment.

3.2 In the event that the manufacturing costs for the contracted goods (including, but not limited to, wages, salaries, materials or production costs) rise subsequent to formation of the contract, CODEX shall have the right to increase the purchase price in accordance therewith.

3.3 Invoices from CODEX are due upon CODEX making the goods available to the customer and are payable without deductions within 10 days of the issuance thereof. Upon a default in payment, any overdue amounts will accrue interest at a rate of 8% above the basic interest rate. CODEX reserves its right to assert any further claims regarding damages resulting from a default.

3.4 The customer can offset its payments only if its counterclaim thereto have been judicially sustained or recognized by a declaratory judgment. A right to withholding shall only apply to counterclaims arising specifically from the contract which is the subject of such withholding.

4. Delivery

4.1 The dates for delivery and/or the making available of the goods are not binding unless a date for such has been agreed to in writing by CODEX.

4.2 CODEX is entitled to carry out advance and/or partial deliveries of the goods.

4.3 In the event that CODEX is unable to deliver or make the goods available to the customer due to events of force majeure lasting for a period of three months or more, CODEX‘s obligation to deliver or make the goods available shall be deemed extinguished in its entirety.

4.4 CODEX shall be entitled to postpone delivery or availability of the goods for the entire duration of the force majeure events.

4.5 Events of force majeure shall be deemed to be any events which are beyond CODEX‘s control and which make delivery impossible or unreason-ably difficult, including, for example, strikes, lawful lockouts, war, import or export prohibitions, scarcity of energy supplies or raw materials, or the delayed delivery to CODEX of goods required for the performance of its obligations hereunder for reasons beyond CODEX‘s control. If CODEX is released from its obligations as described in Section 4.3 above, the customer shall be entitled to rescind the applicable contract.Compensation for damages for nonperformance can be claimed by the customer only if the default in delivery is due to CODEX‘s gross negligence or is intentionally caused by CODEX.

5. Transfer of Risk

5.1 The risk of loss or damage to the goods passes to the buyer as soon as CODEX has dispatched the goods from its premises (i.e., plant, factory or warehouse) or upon the surrendering of the goods to the applicable carrier or to the customer itself, as the case may be. The above shall also apply in the event that CODEX serves as the carrier for the goods.

5.2 If the forwarding or collection of the goods is delayed due to reasons attributable to the customer, the risk of loss shall be transferred to the customer upon the readiness of the goods for dispatch.

6. Defective Goods

6.1 The customer must inspect the delivered goods immediately upon its receipt of such. The customer must notify CODEX in writing of any apparent defects within one week of the goods‘ receipt. CODEX must be notified of hidden defects in writing within two weeks of their emergence but in no event later than one year after delivery of such goods. In the event that the customer fails to meet the aforementioned notification obligations, the goods shall be deemed to have been accepted and the rights set forth in Sections 6.2 and 6.3 below shall not be in effect.

6.2 In the event that the customer has notified CODEX of defects in a timely manner and is thus eligible to make a claim for reperformance, CODEX shall have the right, at its own cost, either to remedy the defect or to redeliver conforming goods.

6.3 If CODEX twice fails to remedy a defect or if CODEX is otherwise unable to accomplish its re-performance obligation or fails to do so within a time period reasonably set forth by the customer, the customer shall be entitled to reduce the purchase price under the contract or to cancel the contract. Instead of seeking performance, the customer can make a claim for damages or for compensation for expenses. However, if the customer elects to rescind the contract it shall have no right to make any claim for damages with respect to the defective goods.

6.4 Provided that CODEX has not acted fraudulently, any claims of the customer regarding the goods shall become void and unenforceable one year after delivery of the applicable goods.

6.5 In the event that the goods are received without defect and the customer wishes to return the goods, including instances where goods have been ordered in error, Codex reserves the right to charge a fee up to 15% of the total cost of the goods in respect to incurred costs relating to re-stocking. Goods must be returned in saleable condition and in all original packaging. Any accessories must be in same saleable condition and in all original packaging. Codex will credit the customer the full amount paid minus the restocking fee upon receipt of the goods in acceptable condition as detailed above. Any shipping fees will not be credited.

7. Liability

7.1 CODEX shall be liable for any damage hereunder caused by it intentionally or caused by its gross negligence.

7.2 In the event of simple negligence by CODEX, CODEX shall be liable only for ordinary and foreseeable damage arising from the contract, and only to the extent that CODEX has breached material contractual obligations. Further, in the event of simple negligence by CODEX, CODEX shall be liable for personal

injury and/or health-related damage attributable to CODEX.

7.3 CODEX shall not be liable for consequential damages and unforeseen damages (including consequential damages resulting from defective goods) as well as loss of profits in the event it has acted with simple negligence.

7.4 CODEX shall be subject to no liability beyond that which is delineated in this Section 7.

7.5 To the extent that CODEX‘s liability is excluded or limited, such exclusion or limitation shall apply to any persons or entities employed by CODEX in the performance of its contractual obligations.

7.6 The limitations of liability delineated herein shall not apply to any legally prescribed strict liability, in particular any such strict liability arising from laws regarding guarantees or product warranties.

8. Retention of Title

8.1 Ownership of the delivered goods shall remain with CODEX until it has received full payment for such goods. Title to the goods shall first pass to the customer upon CODEX‘s receipt of all payments which are due under the current applicable contract.

8.2 Prior to obtaining title to the goods, the customer is not entitled to pledge, to assign by way of security, to process or to alter the goods. The customer is, however, authorized to sell the goods to third parties in the ordinary course of business unless a non-assignability agreement regarding the consideration exists between the customer and the third party. If a third party acquires an interest in the goods through a resale to such party, the customer agrees to assign to CODEX all of its correlating rights and claims against such third party. CODEX hereby accepts such assignment.

8.3 Any combination, amalgamation and/or processing of the goods shall be deemed to have been made on behalf of CODEX. CODEX shall acquire title to the resulting product in the ratio of the invoiced value of the goods and services provided by CODEX to the total invoiced value of the resulting product. If the goods have been re-sold to a third party, the assignment of rights and claims performed in accordance with Section 8.2 above shall be valid solely up to the amount of the invoiced value of goods and services provided by CODEX.

8.4 Upon a default in payment by the customer, CODEX has the right to disclose to any applicable third party that it holds an interest in the goods pursuant to the assignment delineated above and to assert any of its claims directly. The customer is obligated to provide and deliver to CODEX all documentation required for the assertion of such claims. The customer must also make available to CODEX, completely and in a timely fashion, all information about any events that might affect the obligations described above.

9. Jurisdiction; Governing Law

9.1 The parties hereto agree that the exclusive jurisdiction for any transaction and/or contract between the parties will be subject to the laws of England and Wales.

9.2 The relationship of the parties hereto shall be exclusively governed by and in all respects construed in accordance with the laws of England and Wales with no application whatsoever of the United Nations sales law.