Terms and conditions

1. Definitions

In these Conditions the following terms have the definitions shown next to them:

"CEMEX" - CEMEX UK Materials Limited of CEMEX House, Coldharbour Lane, Thorpe, Egham, Surrey TW20 8TD registered in England Number 4895833.

"CEMEX Equipment" - Equipment placed by CEMEX on or within the Customer Silo to provide the Service.

"Conditions" - These terms and conditions for the provision of the Service.

"Customer" - The person with whom CEMEX agrees to provide the Service.

"Customer Silo" - The silo which the Customer uses for the Service located at the Premises.

"Premises" - The place at which CEMEX agrees to provide the Service.

"Service" - The automatic monitoring of cement volumes within the Customer Silo and at pre-determined levels the wireless despatch of data to CEMEX's delivery system to schedule cement deliveries to the Customer, known as Smart Silo^TM.

2. Survey of the customer Silo and installation of CEMEX equipment

2.1 The Service requires that the Customer Silo is of suitable design and condition and allows for the installation of the CEMEX Equipment including strain gauges. The Customer agrees to provide CEMEX with reasonable access to the Premises for the purpose of conducting a survey to assess the suitability of the Customer Silo.

2.2 CEMEX will conduct the survey of the Customer Silo at its cost and advise of the silo's suitability for the installation of the CEMEX Equipment and the provision of the Service. Any works required to make the Customer Silo suitable for the purpose will be for the Customer to arrange at no cost to CEMEX. The CEMEX Equipment will not be installed until all required work to the Customer Silo has been carried out to the satisfaction of CEMEX.

2.3 Following completion of any required work CEMEX will arrange for the installation of the CEMEX Equipment at its own cost and in accordance with a programme agreed with the Customer. The installation works will be carried out with the reasonable skill and care appropriate to industry standards.

2.4 The installation works will require the Customer Silo to be emptied and refilled for calibration purposes and during this process will not be available for the Customer's normal business. The Customer will co-operate as reasonably required during the course of the installation works. CEMEX accepts no liability for any loss or disruption caused to the Customer or his business by reason of the installation works.

2.5 The Customer agrees to provide a safe working environment for the purposes of the site survey and the installation works and for any other access to the Premises required by CEMEX in connection with the provision of the Service. In particular the Customer will provide safe access to and around the Customer Silo.

2.6 CEMEX will meet the Customer's reasonable safety and security requirements when on the Premises and CEMEX's installation engineers will be properly trained in safety matters.

3. Provision of the service

3.1 The Service shall commence upon satisfactory completion of the installation of the CEMEX Equipment. The Customer will be deemed to have placed an order for a cement delivery when the volume of cement within the Customer Silo falls to a pre-determined level agreed between the Customer and CEMEX and the CEMEX Equipment fitted to the Customer Silo transmits a signal to CEMEX's cement delivery system.

3.2 CEMEX's standard terms and conditions for the sale of cement shall govern the supply of cement made pursuant to the Service and in the event of conflict those standard terms and conditions of sale shall prevail over these Conditions. The price for the cement shall be that from time to time agreed between the Customer and CEMEX.

3.3 There is no minimum period during which the Customer is required to take the Service which may be terminated in accordance with the termination provisions contained at clause 7. However, in the event of termination of the Service within 36 months of its commencement the Customer shall (except in the case of termination because of CEMEX default, CEMEX liquidation or receivership etc or CEMEX force majeure in which case the Customer shall be relieved of liability) make payment to CEMEX of a sum equivalent to the cost of the CEMEX Equipment and the associated installation works (which shall be advised to the Customer prior to the installation works commencing) less 1/36 of such cost for each complete month that the Service continues. No payment shall be due in respect of termination occurring after three years from the date of commencement of the Service.

4. Maintenance and repair

4.1 The CEMEX Equipment will be maintained as and when required. CEMEX will agree with the Customer in advance a mutually acceptable date and time for a maintenance visit. CEMEX will bear the cost of routine maintenance of the CEMEX Equipment. The provision of clauses 2.5 and 2.6 regarding safety shall apply mutatis mutandis to this clause and to the extent necessary, particularly if recalibration is needed, the provisions of clause 2.4 shall also apply.

4.2 Non routine repair or replacement of the CEMEX Equipment shall be carried out by arrangement with the Customer applying the provisions of conditions 2.4, 2.5 and 2.6 as necessary. CEMEX will not be responsible for the cost of non routine repair or replacement attributable to the act or default of the Customer, vandalism or other acts of third parties, fire, flood or explosion. In all such cases the costs of repair or replacement shall be borne by the Customer and CEMEX will not commence works unless and until the Customer has agreed to pay the costs. In the event the Customer does not do so CEMEX will treat the Service as having been terminated and the Customer shall pay a sum calculated pursuant to clause 3.3.

4.3 The Customer agrees to take such reasonable steps and precautions as are appropriate to prevent damage to the CEMEX Equipment. In the event the Customer requires to carry out works of repair and maintenance to the Customer Silo which would involve disturbing the CEMEX Equipment, then the Customer shall prior to commencing such works notify CEMEX and agree appropriate safeguards and precautions to protect the CEMEX Equipment and shall thereafter implement them.

5. Title and risk

5.1 Ownership of the CEMEX Equipment shall at all times remain with CEMEX.

5.2 Risk of damage or destruction to the CEMEX Equipment whilst installed on the Customer Silo shall be that of the Customer except where such damage or destruction is attributable to the act or default of CEMEX.

6. Liability

6.1 Nothing in these Conditions shall affect the liability of CEMEX and the Customer at law for death or personal injury caused by their negligence. CEMEX accepts liability for the direct costs of property damage caused by its negligence but limited to £1 million.

6.2 As the CEMEX Equipment is provided free of charge as a service to the Customer, CEMEX excludes to the fullest extent permitted by law all and any liability for failure of or delays in cement deliveries attributable to faults in or non-performance of the Service.

6.3 Notwithstanding anything to the contrary contained in this clause 6 or these terms and conditions generally CEMEX is not liable to the Customer either in contract, tort (including negligence) or otherwise for any direct or indirect loss of profits, business or anticipated savings, nor for any indirect loss or damage.

6.4 Subject to clauses 6.1, 6.2 and 6.3 above CEMEX's total liability in other respects shall not exceed in the aggregate the cost of the CEMEX Equipment and installation works advised to the Customer under clause 3.3.

7. Termination

7.1 Either CEMEX or the Customer may terminate the provision of the Service by giving to the other 90 days notice in writing to expire at any time.

7.2 The Customer may terminate the Service by giving 28 days notice in writing in the event of repeated failure of the Service provided that the Customer has previously served notice on the Company particularising the failures and allowing it at least 28 days in which to remedy matters but despite such opportunity the Company has failed to do so.

7.3 CEMEX may immediately terminate the Service in the event use of the Customer Silo is discontinued or the Customer purchases non-CEMEX cement for storage in the Customer Silo (except that CEMEX shall not have the right to terminate in circumstances where it cannot supply the volumes of cement required by the Customer for storage in the cement silo). CEMEX may also immediately terminate the Service where the cost of repair or replacement is to be borne by the Customer under clause 4.2 but the Customer does not agree to pay such costs.

7.4 Either party may terminate the Service immediately upon becoming aware that the other has entered into liquidation, receivership, administration or into a corporate voluntary arrangement.

7.5 Termination of the Service for any reason shall be without prejudice to the rights and remedies of either party which may have accrued up to termination.

7.6 Upon termination of the Service however effected, the Customer shall permit CEMEX reasonable access to the Premises and the Customer Silo for the purpose of removing the CEMEX Equipment. The provisions of conditions 2.4, 2.5 and 2.6 shall apply (except that the word "installation" within those clauses shall be construed as "removal") in so far as relevant.

8. Force Majeure

8.1 CEMEX reserves the right to suspend or cancel the Service in whole or in part (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business and its obligations in relation to the Service due to any circumstances beyond the reasonable control of CEMEX including, without limitation, acts of god, flood, lightening, war, revolution, act of terrorism, riot or civil commotion, strikes, lockouts or other industrial action (whether of CEMEX's own employees or others), failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services provided that, if the event of force majeure continues for a continuous period in excess of 3 months, the Customer shall be entitled to give notice in writing to CEMEX to terminate the Service.

9. General

9.1 If at any time any one or more of these conditions is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from these Conditions and the validity and/or enforceability of the remaining Conditions shall not in any way be affected or impaired as a result of that omission.

9.2 Any communication between the parties relating to the obligations of the Service must be in writing and delivered by hand (when delivery shall be deemed to be the day of delivery) or sent by pre-paid first class post (when delivery shall be deemed to be 48 hours after posting) or sent by fax (when delivery shall be deemed to be the time of transmission provided that any normal confirmation of fax communication shall have been received), to the address, or such change of address as shall be notified to either party by the other.

9.3 These conditions set out the entire agreement and understanding between the Customer and CEMEX in connection with the provision of the Service except to the extent that CEMEX's standard terms and conditions for the sale of cement apply as provided in clause 3.2 of these Conditions.

9.4 These conditions shall be governed by and be construed in all respects in accordance with English Law and all disputes or claims arising out of or relating to them shall be subject to the exclusive jurisdiction of the English Courts to which the parties irrevocably submit.