Terms

ULTRAPANEL BUILDING TECHNOLOGIES LIMITED TERMS AND CONDITIONS OF SALE

1.Definitions

1.1 In these terms and conditions of sale (these “Conditions”), the following words and phrases shall have the following meanings:

“Acceptance” has the meaning given to it in Clause 3.“Accepted” has the meaning given to it in Clause 3.

“Agreed Design Drawing” has the meaning given to it in Clause 2.3.

“Consents and Permits” means, from time to time, any and all: (a) permissions, consents, approvals, certificates, permits, licences, statutory agreements and authorisations required by any applicable law or regulation (including planning consents and building regulations); (b) all necessary consents and agreements from third parties; and/or (c) codes of practice customary to the trade and, in each case, applicable to the delivery of the Works in accordance with the Contract.

“Contract” has the meaning given to it in Clause 3.

“Contract Price” means the total amount payable by the Customer in consideration of the performance and delivery of the Works by Ultrapanel, which subject to any duly made variation of the Contract will be the Quotation Price.

“Customer” means the person to whom Ultrapanel provides a Quotation.

“Customer Collection Roofing Product” has the meaning given to it in Clause 2.6(a).

“Customer Provided Equipment and Facilities” means all of the facilities (including temporary works and structures), amenities, manpower, machinery, equipment and ancillary products and services that the Customer is required to provide to Ultrapanel to enable Ultrapanel to perform the Works in accordance with the Contract (such Customer Provided Equipment and Facilities to include the Specified Customer Provided Equipment and Facilities and, if the Roofing Services include Ultrapanel Installation Services, the equipment and facilities to be provided by the Customer pursuant to Clause 12.

“Customer Provided Information” means any and all schedules of materials, designs, quantities, measurements, data, specifications, programme of works and details of work to be undertaken by third parties on Site and/or on the Plot No and all other information provided by the Customer, its employees, officers, staff, sub-contractors or agents to Ultrapanel in respect of any Works.

“Defaulting Party” has the meaning given to it in Clause 6.

“Delivery” has the meaning given to it in Clause 1 and “Deliver” and “Delivered” shall be construed accordingly.

“Delivery Date” means the date on which Delivery occurs.

“Disclosed Site Restricting Factors” has the meaning given to it in Clause 2.10.

“Excluded Terms and Conditions” has the meaning given to it in Clause 5.

“Lead Time(s)” has the meaning given to it in Clause 2.7.

“Liability” means any liability arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including any liability under an indemnity contained in the Contract and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of a Party’s obligations under the Contract, in each case howsoever caused including if caused by negligence or if caused by a deliberate and/or repudiatory breach by that Party.

“Losses” means losses, damages, costs, actions, awards, penalties, fines, proceedings, claims, demands, liabilities (including any liability to or in respect of tax) and expenses (including all reasonable and proper legal and other professional fees and expenses).

“Order” has the meaning given to it in Clause 3.

“Parties” means Ultrapanel and the Customer and “Party” shall mean either of them.

“Plot No” has the meaning given to it in Clause 2.4.

“Quotation” has the meaning given to it in Clause 1.

“Quotation Conditions” has the meaning given to it in Clause 4.2.

“Quotation Price” has the meaning given to it in Clause 2.11.

“Quotation Reference Number” has the meaning given to it in Clause 2.1.

“Relevant Period” means the period between the Target Delivery Date and the Target Completion Date.

“Retention” has the meaning given to it in Clause 2.12.

“Roofing Product(s)” has the meaning given to it in Clause 2.2.

“Roofing Services” means the services to be provided by Ultrapanel to the Customer in respect of the Roofing Product(s) such services being the design, manufacture and supply of the Roofing Product(s) and, if explicitly specified in the Quotation, the Ultrapanel Installation Services.

“Site” has the meaning given to it in Clause 2.5.

“Site Restricting Factors” means any Site or Plot No specific restrictions, limitations and other factors that may affect the manufacture and delivery of Roofing Product(s) to the Site and/or the installation of such Roofing Product(s) on the Plot No(s).

“Specification” has design and specification for the Roofing Product(s) consisting of the Agreed Design Drawing and technical file produced by Ultrapanel for the Roofing Product(s), a copy of which is available on request.

“Specified Customer Provided Equipment and Facilities” has the meaning given to it in Clause 2.9.

“Target Completion Date” shall bear the meaning set out in Clause 1.3.

“Target Delivery Date” shall bear the meaning set out in Clause 1.2.

“Ultrapanel” means Ultrapanel Building Technologies Limited, a company incorporated in England (under company number 12174483) and, as the case may be, its officers, employees or agents.

“Ultrapanel Delivered Roofing Product” has the meaning given to it in Clause 2.6(b).

“Ultrapanel Installation Period” has the meaning given to it in Clause 2.8.

“Ultrapanel Installation Services” has the meaning given to it in Clause 2.8.

“Warranties” has the meaning given to it in Clause 1.

“Warranty Period” has the meaning given to it in Clause 1.

“Works” means the Roofing Product(s) and the Roofing Services.

1.2 All headings are for ease of reference only and will not affect the construction or interpretation of these Conditions.

1.3 In these Conditions:

1.3.1 references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality);

1.3.2 references to any statute or statutory provision will include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time;

1.3.3 any words following the words “include”, “includes”, “including”, “in particular”, “for example” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them;

1.3.4 references to a “Clause” shall be to a clause or sub-clause of these Conditions.

2. Quotations

2.1 Ultrapanel may, from time to time, provide the Customer with a quotation for the manufacture and/or supply of Roofing Products and/or the provision and delivery of the Roofing Services (each a Quotation”).

2.2 Each Quotation will be in writing and will set out:

2.2.1 a unique reference number for such Quotation (each being a “Quotation Reference Number”);

2.2.2 details of the roofing products, items ancillary to such roofing products and/or components of such roofing products, in each case, to be supplied by Ultrapanel to the Customer (the “Roofing Product(s)”);

2.2.3 the reference number of the final design drawing(s) for each of the Roofing Products as agreed between Ultrapanel and the Customer (such final design drawing(s) being the “Agreed Design Drawing(s)”);

2.2.4 details, as understood by Ultrapanel, of the building or buildings on which such Roofing Products are to be installed (each building being a “Plot No”);

2.2.5 details, as understood by Ultrapanel, of the location of the site where the Plot No(s) are located (the “Site”);

2.2.6 whether the Roofing Product(s) will be shipped to the Customer by either being:

a) made available for collection at Ultrapanel’s facility (such Roofing Product(s) being “Customer Collection Roofing Product(s)”);

b) shipped by Ultrapanel to the Site (such Roofing Product(s) being “Ultrapanel Delivered Roofing Product(s)”);

2.2.7 the minimum lead time which the Customer must give to Ultrapanel following the date of placing an Order, for Ultrapanel to be able to Deliver the Roofing Product(s) (the “Lead Time(s)”);

2.2.8 the Roofing Services (if any) which, following arrival of such Roofing Product(s) at Site, Ultrapanel will provide in respect of the Roofing Product(s) to install, assist or enable the Customer to install such Roofing Product(s) on their respective Plot No(s) (the “Ultrapanel Installation Services”) and, the minimum amount of time it will take, following arrival of such Roofing Product(s) at Site, for Ultrapanel to deliver the Ultrapanel Installation Services (subject always to the due and punctual delivery and performance by the Customer of the Customer Provided Equipment and Facilities) (the “Ultrapanel Installation Period”);

2.2.9 facilities (including temporary works and structures), amenities, manpower, machinery, equipment and ancillary products and services that the Customer must provide to Ultrapanel (whether before or after Delivery and whether at Site or otherwise), in a timely manner, to enable Ultrapanel to perform the Works, including, if a applicable the Ultrapanel Installation Services(the “Specified Customer Provided Equipment and Facilities”); and

2.2.10 full details, as understood by Ultrapanel, of all Site Restricting Factors (the Disclosed Site Restricting Factors); and

2.2.11 the amount(s) payable by the Customer to Ultrapanel for the delivery and performance of the Works, based on the information in Ultrapanel’s possession as at the time of giving the Quotation, (the total of such amounts being the “Quotation Price”); and

2.2.12 any other terms and conditions relevant to the performance of the Works.

2.3 A Quotation is not an offer and is therefore not capable of acceptance. A Quotation is merely an invitation to the Customer to make an offer to Ultrapanel for Ultrapanel to supply the Works on the terms of the Quotation and these Conditions.

2.4 Ultrapanel may, from time to time, alter or amend a Quotation and, if it does so, Ultrapanel shall give the Customer written notice of such alteration or amendment.

3. Orders

3.1 Any order given by the Customer to Ultrapanel in respect of the supply by Ultrapanel to the Customer of the Works (an “Order”) must be in writing and in such form as Ultrapanel prescribes from time to time and must include:

3.1.1 the Quotation Reference Number for the Quotation to which the Order relates to;

3.1.2 the date when the Roofing Products are requested to be Delivered in accordance with Clause 2.6 (the “Target Delivery Date”), provided that such date is no sooner than the end of a period equal to the longest Lead Time for the Roofing Products following the date of service of the Order; and

3.1.3 if the Works include Ultrapanel Installation Services, the date when the Ultrapanel Installation Services are requested to be completed by (the “Target Completion Date”) provided that such date is no sooner than the end of period of the Ultrapanel Installation Period for the Roofing Products following the Target Delivery Date.

3.2. Each Order shall constitute a representation and warranty by the Customer that:

3.2.1 the Customer Provided Information is true, accurate and complete and contains all information in the possession of the Customer that is reasonably foreseeable as being needed by Ultrapanel to enable it to or which may, in any way, affect the performance by Ultrapanel of the Works;

3.2.2 if at any time during the Contract, the Customer Provided Information does not comply with Clause 2.1, Customer will promptly, by written notice to Ultrapanel, update the Customer Provided Information such that the Customer Provided Information complies with Clause 3.2.1;

3.2.3 the details contained in the Quotation relating to the Site and the Plot No are accurate; and

3.2.4 the Disclosed Restricting Factors are all of the Restricting Factors.

3.3 Following the pacing of the Order and continually until Ultrapanel has completed the performance of the Works, the Customer undertakes to immediately notify Ultrapanel in writing of any and all factors that it becomes aware of that may affect the performance of the Works, including changes to the Specification, Restricting Factors other than the Disclosed Restricting Factors, changes to the Site and/or Plot No(s) and/or any of the Customer Provided Information ceasing to comply with Clause 2.1 and Customer is deemed to continually warrant and represent to Ultrapanel until the completion of the performance by Ultrapanel of the Works that it has disclosed all such factors to Ultrapanel.

3.4 Each Order shall be deemed to be made subject to and incorporate:

3.4.1 these Conditions; and

3.4.2 any terms and conditions contained in the Quotation given in respect of such Works (such terms and conditions being “Quotation Conditions”).

3.5 These Conditions and the Quotation Conditions relevant to any Roofing Products are the only terms and conditions on which Ultrapanel will supply Works to the Customer and will apply to the exclusion of all other terms and conditions (the “Excluded Terms and Conditions”) and for the avoidance of doubt, Excluded Terms and Conditions, shall include:

3.5.1 any terms and conditions which the Customers purports to apply under any Order, confirmation of order or similar document (whether or not such document is referred to in the Contract); and/or

3.5.2 any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing.

4. Acceptance

4.1 Each Order constitutes an offer by the Customer to purchase the Works from Ultrapanel on the basis of that Order, these Conditions and the Quotation Conditions.

4.2 Ultrapanel may accept an Order by:

4.2.1 by issuing a written acceptance of the Order to the Customer; or

4.2.2 by commencing the manufacture or supply of the Works.

4.3 If Ultrapanel accepts an Order in accordance with Clause 2 (such order being “Accepted” and the act of accepting such Order being an “Acceptance”), a contract for the supply of the Works by Ultrapanel to the Customer will be formed from the date of such Acceptance and the terms of such contract will, subject to Clause 5, be the Acceptance the Order, these Conditions and the Quotation Conditions (each a “Contract”).

4.4 If there is a conflict between the Quotation Conditions and either or both of the Order and/or these Conditions, the terms of the Quotation Conditions shall prevail and the Order and/or these Conditions, shall be deemed to be amended to the extent required to remove any such conflict.

4.5 If there is a conflict between the Order and these Conditions, the terms of these Conditions shall prevail and the Order shall be deemed to be amended to the extent required to remove any such conflict.

4.6 If the Customer seeks to impose any Excluded Terms and Conditions, such Excluded Terms and Conditions shall not form part of any Contract and each Acceptance shall be deemed to include a term specifically excluding all such Excluded Terms and Conditions.

4.7 For the avoidance of doubt, Ultrapanel is under no obligation to accept any Order.

5. Cancellation and Variation

The Customer’s attention is particularly drawn to this Clause 5.

5.1 The Customer shall not be permitted to cancel any Order which has been Accepted.

5.2 If, following Acceptance any factors arise which were not known to Ultrapanel prior to the issue of the Quotation to the Customer and were beyond the reasonable control of Ultrapanel (including any variations to the terms of the Contract requested by the Customer, any breach of the terms of the Contract by the Customer, exchange fluctuations, raw material price increases and/or increases in taxes and duties), Ultrapanel may serve a written notice (each a “Variation Notice”) on the Customer setting out:

5.2.1 the details of such factors; and

5.2.2 the proposed amendments to the terms of the Contract, including any changes to the Contract Price.

5.3 From the date of service of a Variation Notice pursuant to Clause 2, Ultrapanel may suspend the delivery and performance of the Works and, without limiting any of the other provisions of the Contract, Ultrapanel shall not be liable in any way for any Losses incurred by the Customer as a result of such suspension.

5.4 Within 3 Business Days following service of a Variation Notice on the Customer pursuant to Clause 2, the Customer may accept the terms of such Variation Notice, by giving unconditional, written notice of its acceptance of such Variation Notice to Ultrapanel within such period of 3 Business Days. If such acceptance is duly given by the Customer, the duly accepted Variation Notice will form part of the Contract and the terms of the Contract shall be amended to reflect the terms of such duly accepted Variation Notice.  If such acceptance is not duly given within such period, unless otherwise agreed in writing by the Parties, the Contract shall be terminated at the end of such 3 Business Day period and the Customer shall be liable to Ultrapanel for all direct and indirect costs, losses and expenses (including all third party fees and expenses and a reasonable sum for the sunken costs of Ultrapanel) incurred by Ultrapanel in the performance and delivery of the Works prior to service of such Variation Notice together with a 10% profit element as payment for the loss of profits and loss of opportunity suffered by Ultrapanel (the “Break Costs”) and the Customer hereby unconditionally, fully and effectively indemnifies Ultrapanel against and agrees to keep Ultrapanel indemnified against all Break Costs on an indemnity basis and on demand.

5.5 Where the Contract is terminated pursuant to Clause 4 and, as at the date of such termination, the amount actually received by Ultrapanel from the Customer in consideration of the performance of the Works is in excess of the Break Costs, Ultrapanel may retain the Breaks Costs from such sum but will return the balance to the Customer, otherwise Ultrapanel may retain the whole of such amount and recover the balance from the Customer and to recover the excess from the Customer.

6. Delivery

6.1 Where a Quotation sets out that the Roofing Product(s) are Customer Collection Roofing Product(s):

6.1.1 subject to Clause 4, Ultrapanel shall use its reasonable endeavours to make such Roofing Product(s) available for collection on the Target Delivery Date;

6.1.2 Ultrapanel shall notify the Customer when such Roofing Product(s) are ready for collection;

6.1.3 the Customer will collect such Roofing Product(s), during normal business hours, within a period of 3 Business Days from the date on which Ultrapanel informs the Customer that such Roofing Product(s) are available for collection in accordance with Clause 1.2;

6.1.4 Ultrapanel will be responsible for loading such Roofing Product(s) onto the collection vehicle but the Customer will be liable for securing the Roofing Product(s) to the collection vehicle and ensuring that the Roofing Product(s) are loaded in such a manner that they will not be damaged or cause any damage during shipment; and

6.1.5 delivery of such Roofing Product(s) will be deemed to occur:

a) at the time of collection of such Roofing Product(s) (immediately following the loading of such Roofing Product(s) onto the collection vehicle); or

b) if earlier, on expiry of the period for collection specified in Clause 1.3;

6.1.6 if delivery occurs in accordance with Clause 1.5 but the Customer fails to collect such Roofing Product(s) within the period for collection specified in Clause 6.1.3, the provisions of Clause 6.3 shall apply.

6.2 Where a Quotation sets out that the Roofing Product(s) are Ultrapanel Delivered Roofing Product(s):

6.2.1 subject to Clause 4, Ultrapanel shall use its reasonable endeavours to ship such Roofing Product(s) to arrive at the Site on or before the Target Delivery Date;

6.2.2 Ultrapanel give the Customer at least 24 hours’ notice in advance of such Roofing Product(s) arriving at the Site;

6.2.3 provided that such Roofing Product(s) arrive at the Site during normal business hours or at a time agreed with Customer, the Customer will be responsible for off-loading such Roofing Product(s) from the delivery vehicle; and

6.2.4 delivery of such Roofing Product(s) will be deemed to occur when such Roofing Product(s) arrive at the Site, immediately prior to such Roofing Product(s) being off-loaded from the delivery vehicle;

6.2.5 if the Roofing Product(s) arrive at the Site in accordance with Clause 2.4, but the Customer fails to off-load or otherwise take delivery of such Roofing Product(s) within a reasonable period following the arrival of such Roofing Product(s) at the Site, Ultrapanel will be entitled to remove such Roofing Product(s) from the Site and the provisions of Clause 6.3 shall apply.

6.3 If the Customer fails to either (as the case may be) collect Roofing Product(s) in accordance with Clause 1.6 or take delivery or unload Roofing Product(s) in accordance with Clause 6.2.5, Ultrapanel shall be entitled to:

6.3.1 store or arrange for the storage of such Roofing Product(s) until the Customer collects them or they are disposed of under Clause 3.2 (as applicable);

6.3.2 following written notice to the Customer, treat the Contract as repudiated by the Customer and dispose of any or all of the Roofing Product(s) in any way it sees fit, including by sale to another person or by sale for scrap. If Ultrapanel sells any of such Roofing Product(s) under this Clause 3.2 at a price which is less than the relevant Contract Price plus any relevant packaging, insurance, carriage delivery and/or other costs or charges incurred by Ultrapanel in relation to such sale, Ultrapanel will be entitled to charge the Customer for the shortfall; and

6.3.3 charge the Customer for all costs and expenses which Ultrapanel incurs under Clauses 3.1 and/or 6.3.2.

6.4 Time and dates for Ultrapanel to deliver and/or perform any or all of the Works are given in good faith, but are estimates only and are not of the essence of the Contract. Without limiting the generality of the previous sentence, Ultrapanel will use its reasonable endeavours to make Roofing Product(s) available for collection or, as the case may be, ship Roofing Product(s) such that they arrive at Site on or before the Target Delivery Date, but time and dates for making Roofing Product(s) available for collection or, as the case may be, arrival of the Roofing Product(s) at Site will not be of the essence of the Contract.

6.5 For the avoidance of doubt, and without limiting any other provisions of these Conditions, Ultrapanel shall not be liable for any damages whatsoever whether direct or indirect (including for the avoidance of doubt of any liability to any third party) resulting from any delay in the delivery of any of the Works, or failure to deliver any of the Works in a reasonable time, whether such delay or failure is caused by Ultrapanel’s negligence or otherwise.

6.6 The Customer indemnifies and will keep Ultrapanel indemnified in respect of all costs, claims, losses or expenses which Ultrapanel may incur as a result of delivery in accordance with the Customer’s instructions.

6.7 Ultrapanel may but is not obliged to, Deliver Roofing Product(s) in instalments, in which case the provisions of this Clause

7. Inspection

7.1 The Customer shall inspect the Works at the time of Delivery and if following any such inspection the Customers identifies:

7.1.1 any defect or fault in any of the Works which would be apparent from reasonable inspection; or

7.1.2 shortfall in the number of the Works, the Customer must immediately notify Ultrapanel verbally and give Ultrapanel written notice within 2 Business Days of date on which such inspection should take place.

7.2 If the Customer fails to carry out such the inspection of the Works in accordance with Clause 1 or fails to give a notice of any defect or shortfall in accordance with Clause 7.1, the Customer shall be deemed to accept the Works and the Customer will not be entitled to reject the Works and the Customer will and will be deemed to irrevocably and unconditionally waive any rights to reject the Works.

7.3 Where the Roofing Services include Ultrapanel Installation Services, Ultrapanel shall inform the Customer on its completion of the delivery of the Ultrapanel Installation Services and the Customer will and, failing which will be deemed to, inspect the Ultrapanel Installation Services in accordance with this Clause on being informed by Ultrapanel’s of the completion of the delivery of the Ultrapanel Installation Services and, if the Customer identifies any defect or fault in any of the Ultrapanel Installation Services which would be apparent from reasonable inspection, it must immediately notify Ultrapanel verbally and give Ultrapanel written notice within 2 Business Days of date on which such inspection should take place.

7.4 If the Customer fails to carry out an inspection of the Ultrapanel Installation Services in accordance with Clause 3 or fails to give a notice of any defect or shortfall in accordance with Clause 7.3, the Customer shall be deemed to accept the Ultrapanel Installation Services and the Customer will not be entitled to reject the Ultrapanel Installation Services and the Customer will and will be deemed to irrevocably and unconditionally waive any rights to reject the Ultrapanel Installation Services.

8. Risk and Title

8.1 All risk of damage to of loss of the Roofing Product(s) (or as the case may be, instalments of Roofing Product(s)) shall pass to the Customer at the time of delivery in accordance with Clauses 1.5 or 6.2.4 (as the case may be) (“Delivery”).

8.2 Subject to Clauses 3 and 8.4, legal and beneficial ownership of the Roofing Product(s) will not pass to the Customer until the later of:

8.2.1 the Delivery Date;

8.2.2 where the Customer actually takes possession of the Roofing Product(s);

8.2.3 Ultrapanel receives, in full and in cleared funds:

a) the whole of the Contract Price; and

b) all other sums which are or which become due to Ultrapanel from the Customer on any account whatsoever, including otherwise than under the Contract.

8.3 The Customer may resell the Roofing Product(s) in the ordinary course of its business and, if it does so, legal and beneficial ownership of the Roofing Product(s) will pass to the Customer immediately prior to the Customer entering into a binding contract for the sale of those the Roofing Product(s).

8.4 Ultrapanel may, by giving written notice to the Customer, pass legal and beneficial ownership of the Roofing Product(s) (or any of them) to the Customer at any time before such ownership would otherwise have passed to the Customer.

8.5 Until legal and beneficial ownership of the Roofing Product(s) has passed to the Customer, the Customer will:

8.5.1 hold Roofing Product(s) on a fiduciary basis as Ultrapanel’s bailee;

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

8.5.3 not destroy, deface or obscure any identifying mark or packaging on or relating to Roofing Product(s);

8.5.4 maintain Roofing Product(s) in satisfactory condition; and

8.5.5 keep Roofing Product(s) insured for their full price against damage or loss on an “all risks” basis with insurers approved by Ultrapanel, (acting reasonably), whenever requested by Ultrapanel produce a copy of the policy of insurance in respect of Roofing Product(s) to Ultrapanel, do nothing and not omit to do anything which in consequence permits any insurer to refuse to indemnify the Customer in full in accordance with the terms of any insurance policy maintained in respect of Roofing Product(s) in respect of any claim made under any such insurance policy and procure that any insurance proceeds received in respect of lost or damaged Roofing Product(s) are paid to Ultrapanel, to the extent required to satisfy the indebtedness of the Customer to Ultrapanel.

8.6 Until ownership of Roofing Product(s) has passed to the Customer:

8.6.1 the Customer hereby irrevocably grants, and will procure that the owner of any third party premises will irrevocably grant, Ultrapanel, its agents, employees and sub-contractors a licence, at any time, to enter any premises where the Roofing Product(s) are or may be stored in order to inspect them, or, where the Customer’s right to possession, use and resale has terminated, to recover them;

8.6.2 shall not create any charge, mortgage, lien or any other encumbrance, adverse to Ultrapanel’s title on any such Roofing Product(s);

8.6.3 shall keep such Roofing Product(s) in good condition and separate from other similar goods and materials and marked so that they can be readily identified as the property of Ultrapanel.

8.7 Ultrapanel’s rights contained in this Clause 8 will survive expiry or termination of the Contract however arising.

9. Payment

9.1 The Customer shall pay the Quotation Price forthwith on and in any event within 5 Business Days of Acceptance. Ultrapanel shall not be obliged to commence performance of any of the Works until it has received payment of the Quotation Price in full, and the Target Delivery Date and the Target Completion Date shall be delayed by a period equal to the period from Acceptance until the date on which Ultrapanel has received payment of the Quotation Price in full, in cleared funds.

9.2 If any Notice of Variation is accepted by the Customer in accordance with Clause 4, as a result of which, the amount of the Contract Price is increased, the Customer shall pay each such increased amount of the Contract Price forthwith acceptance and in any event within 5 Business Days of acceptance of such Variation Notice.

9.3 Notwithstanding any other provision of these Conditions and without prejudice to any of Ultrapanel’s other rights and remedies under the Contract, where any amount of the Contract Price (including the Quotation Price) is from time to time outstanding:

9.3.1 until all outstanding amounts have been received by Ultrapanel in full and in cleared funds:

a) Ultrapanel may suspend delivery or performance of the Works;

b) if Ultrapanel has possession or control of any of the Roofing Products(s) at the time of such suspension it may retain possession of such Roofing Product(s); and

9.3.2 the Target Delivery Date and the Target Completion Date shall be deemed to have been extended by a period equivalent to the period the period of such suspension.

9.4 Any sum payable under the Contract is exclusive of VAT (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable in addition to that sum in the manner and at the rate prescribed by law from time to time.

9.5 All payments will be made in pounds sterling, by telegraphic transfer in immediately cleared funds to such bank account as Ultrapanel notifies to the Customer from time to time.

9.6 Time will be of the essence in respect of the timescales for payment of all sums due to Ultrapanel under the Contract.

9.7 If any sum payable under the Contract is not paid on or before the due date for payment the Ultrapanel will be entitled to charge the Customer interest on that sum at 8% per annum above the base lending rate from time to time of Barclays Bank plc from the due date for payment until the date of actual payment (whether before or after judgment), such interest to accrue and be calculated on a daily basis and be compounded annually.

9.8 Ultrapanel will be entitled to invoice the Customer for all or any part of the Contract Price at any time on or after Acceptance.

9.9 Save as otherwise required by applicable law, all payments to be made by the Customer to Ultrapanel under the Contract will be made in full and without any set-off or any deduction or withholding (including on account of any counter-claim).

10. Warranties

10.1 Ultrapanel warrants to the Customer that during the period starting on the Delivery Date and ending on expiry of a period of one year from and including the Delivery Date (the “Warranty Period”):

10.1. the Roofing Product(s) will:

a) conform to the Specification in all material respects; and

b) be of satisfactory quality and free from material defects in design, materials or workmanship;

and

10.1.2 Ultrapanel will provide the Roofing Services with reasonable care and skill, (the “Warranties”).

10.2 If, at any time during the Warranty Period, the Customer becomes aware of a breach of the Warranties, the Customer will:

10.2.1 give written notice of such breach to Ultrapanel, and the Customer will ensure that such notice will contain full details of the alleged breach together with all reasonable supporting details of the alleged breach and must be given as soon as reasonably practicable following and in any event within 21 days after the Customer first becomes aware of such alleged breach and, in any case, prior to expiry of the Warranty Period;

10.2.2 permit Ultrapanel or Ultrapanel’s agent or sub-contractor to inspect the Works and which are the subject of such breach; and

10.2.3 provide Ultrapanel with all information and assistance which Ultrapanel may reasonably require to investigate the alleged breach.

10.3 Ultrapanel’s Liability in respect of any breach of the Warranties shall cease at the end of the Warranty Period if notice of such breach, complying with Clause 2.1, has not been served by the Customer on Ultrapanel prior to the end of the Warranty Period.

10.4 Subject to Clause 6, Ultrapanel’s only Liability for breach of the Warranties or any other breach by Ultrapanel of its obligations und the Contract will be, at Ultrapanel’s option, to repair or replace the relevant Roofing Product, re-perform the Roofing Services or to reduce the Contract Price by a sum which, Ultrapanel, acting reasonably, determines is equitable in the circumstances.

10.5 The Customer’s only remedy for breach of the obligation under Clause 4 will be in damages.

10.6 Subject to Clause 6, if the Roofing Product(s) are not manufactured by Ultrapanel, or have been processed or manufactured by a third party, whether or not at the Customer’s request, Ultrapanel’s liability, in respect of any breach of Warranty in such Roofing Product(s), will be limited to such rights against the manufacturer or the third party as Ultrapanel may have in respect of such Roofing Product(s).

10.7 The Warranties will, subject to the other terms of the Contract, apply to Works which are repaired, replaced or reperformed under Clause 4 for the remainder of the original Warranty Period.

10.8 Subject to Clause 6, all warranties, conditions and other terms implied by law (whether by statute, common law or otherwise) are excluded from the Contract.

11. Exclusions and Limitations of Liability

The Customer’s attention is particularly drawn to this Clause 11.

11.1 Subject to Clause 7, Ultrapanel’s maximum aggregate Liability will be limited to an amount equal to the Contract Price.

11.2 Subject only to Clause 6, Ultrapanel will have no Liability to the Customer for any:

11.2.1 loss of profit (whether direct, indirect or consequential);

11.2.2 loss of revenue, loss of production or loss of business (in each case whether direct, indirect or consequential);

11.2.3 loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct, indirect or consequential);

11.2.4 loss of anticipated savings or loss of margin (in each case whether direct, indirect or consequential);

11.2.5 loss of bargain (whether direct, indirect or consequential);

11.2.6 liability that the Customer has to third parties (whether direct, indirect or consequential); or

11.2.7 indirect, consequential or special loss.

11.3 In respect of any and all of the Works manufactured, designed, supplied or performed by Ultrapanel using any Customer Provided Information:

11.3.1 Ultrapanel shall be entitled, without making further enquiry, to rely upon such Customer Provided Information;

11.3.2 subject to Clause 6, Ultrapanel shall not have any Liability to the Customer in respect of any breach of Warranty or other defect in such Roofing Product(s) to the extent that such breach of Warranty or other defect arose as a result of the Customer Provided Information;

11.3.3 the Customer hereby unconditionally, fully and effectively indemnifies Ultrapanel against and agree to keep Ultrapanel indemnified against all Losses on an indemnity basis and on demand, arising in relation to:

a) any inaccuracies or other deficiencies in any of the Customer Provided Information, except where Ultrapanel is negligent; and/or

b) any infringement or claim for infringement of any patents, copyright design, trademark, or any other industrial or intellectual property rights of any third party in respect of the Customer Provided Information.

11.4 Subject to Clause 7, Ultrapanel will not have any Liability for a breach of a Warranty if or to the extent that:

11.4.1 the Customer does not comply with its obligations pursuant to Clause 2 in respect of the breach;

11.4.2 the relevant defect in the Works was caused by damage to such Works after Delivery;

11.4.3 if the relevant defect arises from the Customer’s wilful damage, negligence, misuse, alteration or repair of the Roofing Product(s), failure to follow British Standard or industry instructions relevant to the Roofing Product(s), or storage of the Roofing Product(s) in unsuitable conditions;

11.4.4 the relevant defect was caused by fair wear and tear or by abnormal working conditions;

11.4.5 the relevant defect was drawn to the Customer’s attention before formation of the Contract or the Works were or should have been inspected by the Customer and the inspection ought to have revealed the defect; and/or

11.4.6 the relevant defect was caused or exacerbated by improper use, handling, alteration, installation, repair, maintenance, storage or failure to comply with instructions provided by Ultrapanel.

11.5 Subject only to Clause 6, Ultrapanel will have no Liability to the Customer in respect of any failure to perform or delay or defect in performance of its obligations under the Contract, to the extent that any such failure or delay or defect on the part of Ultrapanel arises wholly or partially as a result of:

11.5.1 any breach by the Customer of its obligations contained in the Contract provided that Ultrapanel uses its reasonable endeavours to perform Ultrapanel’s obligations notwithstanding the breach by the Customer;

11.5.2 Ultrapanel relying on any incomplete or inaccurate Customer Provided Information;

11.5.3 where any part of the Roofing Products(s) are, wholly or partially, manufactured to the design or specification of the Customer;

11.5.4 where any part of the Roofing Products(s) are, wholly or partially, acquired or obtained by Ultrapanel from a source specified by the Customer;

11.5.5 the Customer failing to providing Ultrapanel with access to the Site or the Plot No at times and on occasions reasonably necessary by Ultrapanel to the performance of the Works;

11.5.6 where such defect would have been apparent on inspection in accordance with Clause 7;

11.5.7 Ultrapanel complying with any instruction or request made by the Customer or its officers, agents or employee; or

11.5.8 the Customer or any third parties third parties undertaking or failing to undertake work on the Site or on the Plot No.

11.6 Nothing in the Contract will operate to exclude or restrict the Liability (if any) of a Party (the “Defaulting Party”) to the other Party for death or personal injury resulting from the Defaulting Party’s negligence or the negligence of a person for whom the Defaulting Party is vicariously liable, for the Defaulting Party’s fraud or fraudulent misrepresentation or the fraud or fraudulent misrepresentation of a person for whom the Defaulting Party is vicariously liable; and/or any other matter, the Liability for which, the Defaulting Party is not permitted, by applicable law, to exclude or limit, or to attempt to exclude or limit.

11.7 Any of Ultrapanel’s Liability which falls within Clause 6 will not be taken into account in assessing whether the financial limits in Clause 11.1 has been reached.

11.8 Nothing in this Clause 11 will prevent or restrict the right of a Ultrapanel to seek injunctive relief or specific performance or other discretionary remedies of the court.

11.9 Each of Ultrapanel’s employees, agents and sub-contractors will be entitled to enforce all the terms of this Clause 11 subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999 and the terms of the Contract. Accordingly and for the avoidance of doubt, the financial limits on liability set out in Clause 1 are the maximum liability of Ultrapanel, Ultrapanel’s employees, agents and sub-contractors in aggregate. The Parties may vary or rescind the Contract without the consent of Ultrapanel’s employees, agents or sub-contractors.

12. Customer Provided Equipment and Facilities

12.1 In respect of a Contract, if the Roofing Services include Ultrapanel Installation Services, in addition to the Specified Customer Provided Equipment and Facilities, the Customer shall (at the Customer’s expense) supply and make available to Ultrapanel, at all times reasonably required by Ultrapanel:

12.1.1 an electricity and water supply and connection adjacent to the Plot No(s);

12.1.2 a dry store container adjacent to the Plot No(s), such container being of the size and nature reasonably required by Ultrapanel (including being protected from weather and capable of being secured (with Ultrapanel have the sole access to and all keys, security codes and other security measures for such container) for the purposes of storing, removing and disposing of Roofing Products(s) tools, equipment and materials to be used by Ultrapanel in the provisions of the Ultrapanel Installation Services;

12.1.3 all necessary welfare facilities on the Site;

12.1.4 scaffolding at each Plot No as specified by Ultrapanel;

12.1.5 appropriately rated telehandlers, cranes, telescopic picks and other construction equipment (together with drivers or operators for such construction equipment);

12.1.6 appropriately rated crane, operator(s), banksman and lifting equipment; and

12.1.7 hard standings, towers, platforms, walkways and other temporary works and structures specified by Ultrapanel).

12.2 In respect of any scaffolding required pursuant to Clause 1.4, the Customer:

12.2.1 shall ensure that all such scaffolding is structurally designed for stability in accordance with the European Standard BS EN 12811-1:2003 and NASC TG 20.08;

12.2.2 is responsible for designing, erecting and maintaining all scaffolding to achieve the requirements specified by Ultrapanel;

12.2.3 will ensure that scaffolding is installed only by registered scaffolding installers;

12.2.4 will ensure that all perimeter scaffolding must:

a) be fully erected prior to the commencement of the Ultrapanel Installation Services

b) include a five board wide main working platform, 600mm down from the wall plate

c) include two full boarded table lifts at the gable ends of each Plot No; and

d) include ladder access thereto;

12.2.5 the Customer must provide Ultrapanel with a copy of the scaffold completion handover certificate.

12.3 The Customer shall ensure that all Customer Provided Equipment and Facilities will comply with all applicable British and European standards and all applicable laws and regulations.

12.4 The Customer shall be liable for the delivery of all Customer Provided Equipment and Facilities and where such Customer Provided Equipment and Facilities requires operation (including telehandlers, cranes, picks and similar equipment), Customer shall provide duly qualified operators of such Customer Provided Equipment and Facilities.

12.5 Ultrapanel will not be liable to the Customer whatsoever for any delay or failure to perform the Ultrapanel Installation Services where any such delay or failure is due to:

12.5.1 adverse weather conditions (for example but not limited to: wind speeds greater than 17mph or 7.6m/sec; heavy snow; ice and/or freezing rain; rain likely to cause, floods and/or landslides; subsidence; earth tremors; temperatures above 35°C or below minus 3 °C temperature; drought; dense fog or lightning;

12.5.2 the Customer’s failure to promptly and fully deliver any or all Customer Provided Equipment and Facilities; and/or

12.5.3 the Customer’s failure to comply with its obligations under the Contract, including those obligations set out in Clause 13.

12.6 Notwithstanding Clause 5, Ultrapanel will endeavour to give the Customer reasonable notice of any changes in or delays to the performance of the Ultrapanel Installation Services.

12.7 In respect of all Customer Provided Equipment and Facilities of the type which is required to be erected at Site (including those referred to in Clause 1), the Customer shall be responsible for:

12.7.1 the due and prompt erection of such Customer Provided Equipment and Facilities;

12.7.2 ensuring that, once erected, such Customer Provided Equipment and Facilities are not removed, adjusted or otherwise tampered with until Ultrapanel has completed the Works and Ultrapanel has confirmed to the Customer that such Customer Provided Equipment and Facilities may be removed.

12.8 Without prejudice to Clause 2.4, the Customer shall use its best endeavours to ensure the use of ladders by Ultrapanel is not required.

12.9 The Customer shall be responsible for the proper protection of the Work from the weather and shall ensure the conditions for the Work comply with all statutory or other obligations from the time being in force and the Customer hereby unconditionally, fully and effectively indemnifies Ultrapanel against and agrees to keep Ultrapanel indemnified against all Losses on an indemnity basis and on demand, arising in relation to any breach thereof.

12.10 The Customer shall be responsible for and shall dispose of all materials and packaging left on the Site by Ultrapanel following completion of such Ultrapanel Installation Services promptly and in accordance with all applicable laws and regulations and the Customer hereby unconditionally, fully and effectively, indemnifies Ultrapanel against and agrees to keep Ultrapanel indemnified against all Losses, on an indemnity basis and on demand, arising in failure by the Customer to comply with its obligation pursuant to this Clause 10.

13. Customer’s General Obligations

13.1 The Customer shall ensure all work to be undertaken by third parties on Site and/or on any Plot No is carried out in a proper and workmanlike manner and Ultrapanel shall not be liable to the Customer for any delay or interruption caused to performance of the Work as a result of actions taken by third parties and/or third parties failing to take actions on Site or on the Plot No.

13.2 Customer shall ensure that Ultrapanel has full and lawful access to and use of the Site and the Plot No(s) (at no additional cost to Ultrapanel) at all times reasonably required by Ultrapanel for any and all purposes required for the performance of the Works (including the Ultrapanel Installation Services (if any)) and otherwise as Ultrapanel reasonably requires in order for Ultrapanel to comply with its obligations under the Contract. Such access to and use of the Site by Ultrapanel shall be for purposes including:

13.2.1 check and inspect the erection of any of the Customer Provided Equipment and Facilities;

13.2.2 storage of the Roofing Product(s), tools and equipment to be used by Ultrapanel in the performance of the Works; and

13.2.3 performing the Roofing Services.

13.3 The Customer shall be liable for all loss and damage and be responsible for the safe custody of all Roofing Product(s), tools and equipment stored on Site or in the Plot No in accordance with Clause 2.2.

13.4 The Customer shall:

13.4.1 obtain and maintain any and all necessary Consents and Permits;

13.4.2 ensure that the terms and conditions of all such Consents and Permits are complied with and that the performance of the Works does not breach the terms of any such Consents and Permits;

13.4.3 ensure that the performance of the Works does not and will not contravene any local or national laws, by-laws, regulations for the time being in force, and the Customer hereby unconditionally, fully and effectively, indemnifies Ultrapanel against and agrees to keep Ultrapanel indemnified against all Losses, on an indemnity basis and on demand, arising in failure by the Customer to comply with its obligation pursuant to this Clause 4.

13.5 The Customer shall provide Ultrapanel with a copy of its Health and Safety Policy Document and Method Statement for the Site and promptly provide it will any updates or amendment thereto.

13.6 The Customer shall promptly notify Ultrapanel in writing of any health and safety issue which it knows or ought to know may affect Ultrapanel performance of the Works.

13.7 The Customer will provide Ultrapanel with all such information and assistance as Ultrapanel may reasonably require from time to time to perform obligations under the Contract.

13.8 The Customer will comply with Ultrapanel’s instructions in connection with any product recall initiated by Ultrapanel involving the Roofing Product(s) (or any of them).

14. Ultrapanel’s Rights

14.1 Ultrapanel reserve the right to provide alternative materials or improved or higher quality materials but if Ultrapanel exercises such right, it shall advise the Customer in writing forthwith.

14.2 Ultrapanel shall have an express and unqualified right to sub-contract work to one or more third parties.

14.3 Ultrapanel shall undertake the Ultrapanel Installation Services in accordance with its practice manual for such Ultrapanel Installation Services from time to time in force (a copy of which is available on request) and the Specification the Roofing Product(s). The Customer is deemed to be aware of and have approved the contents of such practice manual .

15. Termination

15.1 If the Customer commits a material breach of the Contract, Ultrapanel may terminate the Contract written notice to that effect to the Customer.

15.2 Ultrapanel may terminate the Contract immediately by giving written notice to that effect to the Customer if:

15.2.1 the Customer has a receiver, administrator or provisional liquidator appointed; are subject to a notice of intention to appoint an administrator; pass a resolution for the Company’s winding-up; have a winding up order made by a court in respect of the Customer; enter into any composition or arrangement with creditors; cease to carry on business; or have any steps or actions taken in connection with any of these procedures;

15.2.2 Ultrapanel gives the Customer written notice that Ultrapanel has any reasonable concerns regarding the Customer’s financial standing; or

15.2.3 the Customer fails to pay any sum due (whether under the Contract or any other contract from time to time made between Ultrapanel and the Customer on or before the due date for payment of such sum.

15.3 The Customer will notify Ultrapanel immediately upon the occurrence of any of the events referred to in Clause 2.

15.4 Following expiry or termination of the Contract:

15.4.1 any provisions of the Contract which expressly or impliedly continue to have effect after expiry or termination of the Contract will continue in force; and

15.4.2 all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of expiry or termination.

16. Confidentiality

The Contract and all document referred to in the Contract (including the Quotation, Agreed Design Drawings and the Specifications) are proprietary to and will be confidential information owned by Ultrapanel and the Customer and, other than as required by applicable law of regulation, will not use or disclose to any third party such information without the Ultrapanel’s prior written consent.

17. Notices

17.1 Any notice or other communication given under or in connection with the Contract will be in writing and:

17.1.1 sent by pre-paid recorded delivery to the relevant Party’s postal address;

17.1.2 delivered to or left at (but not, in either case, by post) the relevant Party’s postal address; or

17.1.3 sent by email to the recipient Party’s email address, and, in the case of any notice or other communication to be given to Ultrapanel, marked for the attention of the “Board of Directors”.

17.2 Ultrapanel’s postal address and email address:

17.2.1 postal address: Enterprise Works, Salthill Road, Clitheroe, England, BB7 1PE

17.2.2 email address: notices@ultraframe.co.uk

or such other postal address and/or email address as are, from time to time notified to the Customer.

17.3 The Customer’s postal address and email address are those detailed in the Order or such other postal address and/or email address as are, from time to time notified to Ultrapanel.

17.4 Any notice or communication given in accordance with this Clause 17 will be deemed to have been served:

17.4.1 if given in accordance with Clause 1.1, at 9.00 a.m. 2 Business Days after the date of posting;

17.4.2 if given in accordance with Clause 1.2, at the time the notice or communication is delivered to or left at that Party’s postal address; and

17.4.3 if given in accordance with Clause 1.3, at the time of the correctly addressed email leaves the sender’s email server, provided that if a notice or communication is deemed to be served before 9.00am on a Business Day it will be deemed to be served at 9.00am on that Business Day and if it is deemed to be served on a day which is not a Business Day or after 5.00pm on a Business Day it will be deemed to be served at 9.00am on the immediately following Business Day.

17.5 To prove service of a notice or communication it will be sufficient to prove that the provisions of Clause 1 were complied with.

18. General

18.1 The Contract constitutes the entire agreement between the Parties and supersedes any prior agreement or arrangement in respect of its subject matter and:

18.1.1 neither Party has entered into the Contract in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement (whether made by the other Party or any other person and whether made to the first Party or any other person) which is not expressly set out in the Contract;

18.1.2 the only remedies available for any misrepresentation or breach of any representation or statement which was made prior to entry into the Contract and which is expressly set out in the Contract will be for breach of contract; and

18.1.3 nothing in this Clause 1.1 will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation.

18.2 Any delay in Ultrapanel exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy by Ultrapanel, nor will the single or partial exercise of a right or remedy prevent or restrict Ultrapanel from the further exercise of that or any other right or remedy. A waiver by Ultrapanel of any right, remedy, breach or default will only be valid if it is in writing and signed by Ultrapanel and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.

18.3 Ultrapanel will not be in breach of the Contract or otherwise liable to the Customer for any failure to perform or delay in performing Ultrapanel’s obligations under the Contract to the extent that such failure or delay is due to any event or circumstance beyond Ultrapanel’s reasonable control.

18.4 If an event or circumstance which gives rise to relief from liability under Clause 3 continues for a period of more than 6 months, either Party will be entitled to terminate the Contract by giving written notice to that effect to the other Party.

18.5 If any term of the Contract (including any exclusion from, or limitation of, liability set out in Clause 11) is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Contract and this will not affect the remainder of the Contract which will continue in full force and effect.

18.6 No variation to the Contract will be effective unless it is agreed pursuant to Clause 5 or is otherwise agreed by the Parties in writing and signed by a duly authorised representative on behalf of each of the Parties.

18.7 Nothing in the Contract and no action taken by the Parties in connection with it or them will create a partnership or joint venture between the Parties or give either Party authority to act as the agent of or in the name of or on behalf of the other Party or to bind the other Party or to hold itself out as being entitled to do so.

18.8 Each Party agrees that it is an independent contractor and is entering into the Contract as principal and not as agent for or for the benefit of any other person.

18.9 Save as provided in Clause 9, the Parties do not intend that any term of the Contract will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.

18.10 Ultrapanel’s rights and remedies set out in these Conditions are in addition to and not exclusive of any rights and remedies provided by law.

18.11 The Customer will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under the Contract. The Customer will be entitled to sub-contract its obligation to collect Roofing Products under Clause 1 (if applicable), but the Customer will not be entitled to sub-contract any of its other obligations under the Contract.

19. Governing Law and Jurisdiction

19.1 The Contract and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales.

19.2 Each Party agrees that the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with the Contract (including in relation to any non-contractual obligations).


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