General Conditions of Contract (TC1 08/96)

1. General

All business transacted by AmTecs Ltd hereinafter called ‘the Supplier’ is governed by the following Conditions of Contract unless otherwise stated in the offer.  No Terms or Conditions (whether contained in the customer’s acceptance or otherwise) shall be binding on the Supplier other than those set out below unless they are expressly agreed in writing by the company.

1.1. Offers expire 45 days after the date of the offer unless revised or confirmed by the Supplier in writing.

1.2. Offers are valid for the country in which the Enquirer or Purchaser is domiciled.  The Enquirer or Purchaser is liable for all prejudice to and claims against the Supplier due to the use of the products supplied outside such country.

1.3. Unless otherwise agreed, interpretation of contract terms customary in the trade shall be governed by the Incoterms 1953, including the supplements valid at the time when the contract is concluded.

1.4. Any form of proposal howsoever made by the Supplier is subject to alteration or withdrawal without notice until any order arising from it has been accepted by the Supplier in writing.

2. Scope of Delivery and Prices

2.1. The supply obligation comprises the supplies and services confirmed in  writing by the Supplier.  If the products to be supplied are to be suitable for specific purposes of the Purchaser, such specific purposes and the requirements with which the products to be supplied have to comply accordingly must be indicated fully and expressly by the Purchase in the order and confirmed by the Supplier.

2.2. Unless otherwise agreed prices are calculated net including the supplier’s standard packing.

2.3. In the case of c.i.f. deliveries, any expenses charged at the port of destination for discharge, lighterage or landing, port dues and wharfage are not included in the price.

2.4. Customs duties consular fees and other taxes, dues or fees charged in accordance with any laws and regulations as well as any costs connected therewith, shall be borne by the Purchaser.  In the case of delivery including customs or other duties, the price quoted is based on the rates in force at the time of tendering.  The actual expenses will be charged.  Any turnover tax possibly accruing will be charged separately.

2.5. The Supplier will comply with any foreign packing, weighing and customs regulations where applicable if precise information is given to him by the Purchaser in due time.  Any additional expenses connected therewith shall be borne by  the Purchaser.

3. Information, Drawings and Other Documents

3.1. All information concerning weights and dimensions, drawings, explanations, descriptions and illustrations submitted by the Supplier are to be considered as approximate.  Appropriate quantities of drawings an other documents containing final data will be supplied upon request after conclusion of the contract.  The Supplier must reserve the right to alter the technical concept upon which the offer is based, insofar as the performance and quality of the products offered for supply are not thereby affected.

3.2. The Supplier will retain the exclusive ownership and all copyrights in respect of any drawings and other documents.  Drawings and other documents must not be made accessible to third parties without the Supplier’s consent and shall be returned if so requested.

4. Terms of Payment

4.1. All payments shall be made in accordance with the stipulations entered into, without any deduction and free of charge to the address of payment notified by the Supplier.

4.2. In the event of delivery being delayed without fault of the Supplier, payments are to be made as if no delay had occurred.

4.3. The Purchaser shall be in default if he exceeds the due dates of payment agreed upon. In the case of delayed payment, the Supplier may, without prejudice to any other claim, demand interest on the amount outstanding at the rate of 1.5% per month (or part of any month), as from the due date of payment agreed upon to the date payment is received in full.

4.4. Compliance with all obligations of the Supplier towards the Purchaser shall be subject to compliance with terms of payment agreed upon and with all other obligations of the Purchaser towards the Supplier.

4.5. The Purchaser may only set off such claims or assert retention rights of such claims which are undisputed or have been finally decided. The right of retention may only be claimed to a reasonable extent.

5. Reservation of Ownership

5.1. The products supplied shall, unless otherwise agreed remain the property of the Supplier until all debts owing to the Supplier or to be created in the future and arising from the business connection with the Purchaser have been paid in full. With respect to the case of resale of the goods - in any condition whatsoever - the Purchaser agrees to assign and assigns to the Supplier by way of security, at the conclusion of the supply contract and effective up to the time of payment of all debts owing by the Purchaser to the Supplier, any claims against the Purchaser’s customers which may have arisen or arise in future from the resale and undertakes to notify the Supplier at his request of the name of third party debtors and of the amount of the debts owing by these to the Purchaser. As long as the Purchaser complies with his payment obligation and no detrimental change occurs in hi financial standing, the Supplier will not collect the debts assigned. If the reservation of ownership in the foregoing form is not effective under the law of the country of destination, the Purchaser must co-operation in establishing a similar security right complying with the provisions of his country, in favour of the Supplier..

5.2. In the event that the goods shall be in any way adapted or incorporated by the Purchaser or any third party into any other goods the Purchaser shall pending the sale of the goods so adapted as aforesaid or of such composite goods hold the same as security for repayment to the Supplier of all moneys due in respect of the goods.

5.3. So long as the Supplier retains property in the goods, the Supplier shall have the right, without prejudice to any obligations of the Purchaser to purchase the goods, to re-take possession of the goods, and for that purpose to go upon any premises occupied by the Purchaser.

5.4. Where goods are supplied by the Supplier to the Purchaser under a number of separate invoices the following additional provision shall apply:
    (a) The Purchaser shall be presumed to sell goods for which payment has been made before goods for which payment has not been made; and
    (b) where the Purchaser mixes goods for which payment has been made with identical goods for which payment has not been made, the Supplier shall be entitled to nominate any items of mixed goods as being items for which payment has not been made up to the limit of the total number of such items, and the nominated items shall be conclusively presumed to be items in respect of which payment has not been made and in which title remains vested in the Supplier.

6. Time of Delivery and Default

6.1. Times quoted for despatch or completion represent the Company’s best estimates only and are given in good faith, time not being of the essence.

6.2. Adherence to the delivery time, shall be subject to the order being completely clarified, all permits being granted and all the documents, payments and securities to be furnished by the Purchaser being received by the Supplier in due time. The delivery time will be reasonably extended if any of the foregoing requirements have not been complied with in due time. The delivery time has been adhered to it the consignment is ready for despatch ex-works within the period agreed upon and if a notice to that effect is sent to the Purchaser.

6.3. In the event of the Supplier being prevented from carrying out his supplies and services in due time by mobilisation, war, insurrection, strike, lockout, interruptions of operation, fire, Acts of God, transport hindrances, alteration of the legal provisions, administrativemeasures or decrees or the occurrence of any other unforeseeable events which are beyond his control, the delivery time will be reasonably extended.

6.4. The Purchaser shall bear any additional cost resulting from interruption or delay caused by him in the work to be performed by the Supplier.

6.5. In the event of despatch being delayed for reasons beyond the Supplier’s control, he shall be entitled to store the products to be supplied at the Purchasers risk and to demand reimbursement of any expenses incurred.

7. Testing and Acceptance

7.1. The Supplier’s products are inspected and submitted to the Supplier’s standard tests. Testing the presence of the Purchaser or his representative as well as any special tests must be agreed upon in advance. The supplier shall be entitled to charge the cost of such tests to the Purchaser.

7.2. If any acceptance test of the products to be supplied is stipulated this has to be carried out at the premises of the Supplier. Acceptance has taken place if the Purchaser has not raised any justified complaints up to the time when the test is completed.

7.3. If the Purchaser waives any acceptance test agreed upon, or if he fails to be present at such a test despite having been invited in due time, the test carried out by the Supplier shall be regarded as acceptance.

7.4. In the event of tests being delayed for reasons beyond the Supplier’s control, any additional expenses resulting therefrom shall be borne by the Purchaser.

8. Transfer of Risk

8.1. As a rule the risk will pass over to the Purchaser as soon as the products to be supplied are leaving the works or are placed at the Purchaser’s disposal at the works. If, however, a pricing has been agreed upon for which a different regulation or transfer of risk is stipulated under Incoterms 1953, including the supplements valid at the time of conclusion of the contract, such different regulation shall apply. Should despatch be delayed for reasons beyond the Supplier’s control, the risk is transferred to the Purchaser upon notification of readiness for despatch.

9. Warranty

9.1. For any defects in the products supplied, the Supplier shall be liable in such a way that he will repair or replace at his options all parts in which defects are proved to have arisen within 12 months - without regard to the duration of operation - after the date of transfer of risk owing to any circumstances prior to the transfer of risk, in particular parts which become unusable due to faulty construction, inferior material or defective execution or the usefulness of which is considerably impaired. The ascertainment of such defects must be made known to the Supplier in writing without delay.

9.2. To remedy the defects the Purchaser shall allow the Supplier the time and opportunity required according to the reasonable estimation of the Supplier. Should the Purchaser refuse to allow such time and opportunity, the Supplier shall be released from the obligation to remedy the defects.

If the contract is part of the trade or business of the Purchaser, the following stipulations shall apply:

The Purchaser shall return the defective parts at his expense to the Supplier immediately upon request of the latter. The Supplier bears the costs for repairs or delivery of replacement ex-works only. If the repair work is carried out at the place of destination, the Supplier will only bear such expenses as would have arisen if the repair had been carried out at his own works. In this case the Purchaser will make available the necessary assistant personnel and any equipment required at his own expense.

9.3. The right of the Purchaser to bring actions arising out of defects shall in all cases be barred by the Statute of Limitations six months after the date of the duly raised notification of defect. Should no agreement to be reached within this period, the Supplier and the Purchaser can arrange for a prolongation of this period of limitation.

9.4. The warranty obligation does not refer to natural wear and tear nor to damage occurring after the transfer of risk due to improper or unsuitable handling, excessive stressing, unsuitable operating material, faulty construction work, unsuitable foundations and chemical, electrochemical or electrical influences of a nature not provided for according to the Contract. On improper alterations or repairs carried out by the Purchaser or third parties or in case of breaking seals, the warranty obligations of the Supplier and his liability for consequences caused thereby are rendered void.

9.5. Further claims of the Purchaser against the Supplier are excluded, in particular claims for the liability for damages not arising from the object of supply itself and the liability for consequential damages, in particular for loss of profit or loss of production. This does not apply if compulsory liability is prescribed for legal reasons in cases of malice aforethought or gross negligence. 10. Patent Rights and Other Industrial Rights

10.1 The Supplier is liable to the Purchaser for the infringement of patent rights and other industrial rights (hereinafter collectively referred to as ‘patent rights’) of third parties only within the limits of the following provisions.  Compliance with this obligation is subject to the Purchaser immediately informing the Supplier of any infringement claims raised by third parties, and to the Purchaser proceeding in agreement with the Supplier in dealing with such claims and in the pursuance of his rights.  Should any one of these conditions not be fulfilled, the Supplier will be relieved of his obligations.  Should an infringement of third party patent rights be ascertained and should for this reason the Purchaser be enjoined by final decision from using any product supplied, either in whole or in part, the Supplier shall at his own expense and at his option either -

    (a)  Obtain for the Purchaser the right to use the

           product supplied, or

    (b)  modify the product supplied in such a way that it

           becomes non-infringing, or

    (c)  Replace the product supplied by another product

           comparable efficiency which does not infringe any

           patent rights, or

    (d)  take back the product supplied against refund of

           the purchase price.

The Supplier shall not be liable insofar as third-party claims for infringement of patent rights are based on modifications made to the products supplied or the incorporation of additional devices or the combination of the product supplied with other equipment or devices not delivered by the Supplier on the part of the Purchaser, or on the fact that the product supplied has been used for a purpose for which it was not intended. Likewise, the Supplier cannot be held liable for infringement of third-party patent rights for products supplied which were manufactured accordingly to drawings, models or other data supplied by the Purchaser; in this case the Purchaser shall indemnify the Supplier in respect of third-party claims. The Purchaser shall not be entitled to further or additional claims on the ground of infringement of third-party patent rights. In particular, the Supplier will not compensate the Purchaser for any indirect or consequential damage such as loss of profit and loss of production. The Purchaser does not acquire any right to the use of patent rights applying to the combined use of the products supplied with other products.

11. Liability

11.1. The Supplier will indemnify the Purchaser for direct physical injury or death caused by defects in any of its products or by the negligence of its employees in connection with the performance of their duties under this agreement.

11.2. The Supplier will indemnify the Purchaser for direct damage to property caused by any of its products or by the negligence of its employees in connection with the performance of their duties under this agreement provided always that the Supplier’s liability under this sub-clause shall be limited to £10,000 for each case of damage originating from on e source with total liability not exceeding £250,000. The Purchaser shall release the Supplier from obligations to meet third-party claims for damage insofar as these exceed the above mentioned amounts.

11.3. Any further or additional liability for damages on the part of the Supplier, his employees and all other persons appointed by the Supplier in connection with the execution of the Contract is excluded, in particular for financial damage, such loss of production and loss of profit, as well as liability for culpable breach of contract, negligence in the conclusion of the Contract and the liability for tort caused by negligence. This does not apply insofar as compulsory liability is prescribed for legal reasons in cases of malice aforethought or gross negligence.

12. Validity, Law Applicable, Place of Performance and Place of Jurisdiction.

12.1. Even in the event of individual clauses of the Contract being invalid, its remaining parts shall continue to be binding. should any clause be in valid wholly or in part, the contracting parties will endeavour without delay to attain the economic result aimed at by the invalid clause in another legally admissible manner.

12.2. The rights and obligations of the parties to the contract and terms and conditions thereof shall be construed according to English Law.

12.3. The place of performance for all contractual and legal claims shall be the registered business place of the Supplier.

12.4. In construing these conditions no account shall be taken of the headings at the commencement of each numbered clause.