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TAH EUROPE INC - STANDARD CONDITIONS OF SALE

  1. GENERAL:-
    1. Quotations are submitted and orders are accepted only upon and subject to Conditions of Sale as herein set out. Unless expressly agreed and accepted by us in writing, any terms in a purchaser's order form which are inconsistent with these Conditions will not apply.
    2. In the event that any terms contained in the Order Acknowledgement shall be inconsistent with those in these Conditions of Sale, the former shall prevail.
    3. Our employees or agents are not authorised to make any representations concerning the goods unless confirmed by one of our Directors in writing. In entering into the contract the purchaser acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
    4. Any advice or recommendation given by us or our employees or agents to the purchaser or its employees or agents as to the goods which is not confirmed in writing by us is followed or acted upon entirely at the purchaser's own risk, and accordingly we shall not be liable for any such advice or recommendation which is not so confirmed.
    5. Any typographical or clerical omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by us shall be subject to correction without any liability on our part.
  2. QUOTATIONS AND ORDERS:-
    1. All quotations are tendered without engagement and are subject to confirmation upon receipt of order.
    2. No order submitted by the purchaser shall be deemed to be accepted by us unless and until confirmed by way of Order Acknowledgement.
    3. The quantity, quality and description of and any specification for the goods shall be those set out in the Order Acknowledgement.
  3. PRICES:-
    1. All prices are subject to adjustment on account of fluctuations of labour and/or raw material costs before completion of orders and are for the full quantities specified.
    2. We reserve the right, by giving notice to the purchaser at any time before delivery to increase the price of the goods to reflect any increase in the cost to the seller due to any change in delivery dates, quantities or specifications for the goods which is requested by the purchaser, or any delay caused by any instructions of the purchaser or failure of the purchaser to give us adequate information or instructions.
    3. All prices are exclusive of any applicable value added tax and other taxes including but not limited to import duties which the purchaser shall be additionally liable to pay for.
  4. DELIVERY:-
    1. Delivery shall occur when we or our carrier arrive at the delivery address and notify the purchaser of such arrival. Delivery shall also occur on the date we propose to make delivery where we advise that the goods will be despatched and the purchaser indicates that he will not take deliveries on such date. [Where the goods are collected or to be collected by the purchaser, delivery occurs when handed over to the purchaser or when we notify the purchaser that the goods are available for collection.]
    2. If the purchaser fails to take delivery of the goods or fails to give us adequate delivery instructions when notified that the goods are ready for delivery then, without prejudice to any other right or remedy available to us, we may:-
      1. store the goods until actual delivery and charge the purchasers our storage charges current at the date thereof (including insurance); and
      2. in the event that the purchaser fails to accept delivery for a period of three months we may sell the goods at the best price readily obtainable and (after deducting all storage, packing, unpacking, transport and abortive delivery costs and selling expenses) charge the purchaser for any shortfall below the price under the contract.
    3. Every effort will be made to adhere to despatch dates quoted. No liability can be accepted for any loss whatsoever caused through non-delivery or delay in delivery of goods ordered or for the non-completion of any contract caused directly or indirectly through any circumstances beyond our control, and we shall be the sole judge of whether any circumstance is beyond our control or not. The time stated for despatch dates [is calculated] from the receipt of completion instructions, approval of drawings and/or samples, etc., and not from the date of receipt of the order. Where contracts placed cover bulk quantities for despatch against purchaser's scheduled requirements, it is understood that the purchaser thereby authorises us to manufacture, if we elect to do so, the complete quantity in bulk. In the event that an order is to be delivered by instalments, each instalment shall be a separate contract notwithstanding the fact that the Order therefor may have been placed at one time.
  5. PAYMENT:-
    1. Credit terms are granted subject to satisfactory trade references and the acceptance of each account by the insurance company underwriting our trade debtors. Unless otherwise stated by us, either in quotation or correspondence, terms of payment are strictly Net Cash payable 30 days following date of invoice.
    2. Where the purchaser does not make payment in accordance with the terms set out in sub-paragraph (a) hereof or in accordance with any special terms agreed by us in writing, we reserve the right to:-
      1. stop manufacture and delivery under any contract made between the purchaser in full of all outstanding accounts due;
      2. cancel the contract or suspend any further deliveries to the purchaser;
      3. appropriate any payment made by the purchaser to such of the goods (or the goods supplied under any other contract between the purchaser and us) as we may think fit (notwithstanding any purported appropriation by the purchaser); and
      4. charge interest to the purchaser at the rate of 2% per month above the base rate from time to time of [Barclays Bank plc] on the unpaid balance (such interest to accrue on a day to day basis from the due date for payment until receipt by us of the full amount whether before or after any judgement); and
      5. the purchaser shall indemnify us against all costs and expenses (including any legal costs and expenses on a full indemnity basis) incurred or sustained by us in recovering sums due or in exercising its rights pursuant to clause 5.
    3. In the event that we exercise our rights to cease manufacture and delivery, any goods to be delivered to a purchaser following default shall be paid for on our proforma invoice before or at the time for despatch of the goods and payment will become due on receipt of such proforma invoice. In no circumstances shall we be liable for loss of any nature suffered by a purchaser as a result of the application of these Conditions nor shall it be a reason for the cancellation of this or any other contract which shall at our option remain in full force and effect.
  6. CARRIAGE:- Unless otherwise stated by us, carriage is chargeable on all goods despatched.
  7. CLAIMS:-
    1. In respect of goods despatched to a destination in the United Kingdom risk in the goods passes to the purchaser on delivery and the purchaser's liability to us for the invoice value is not affected by subsequent loss or damage. All goods will be packed and consigned with usual care and all claims for damage in transit, etc., must be made upon the carriers. Errors and omissions must be notified by purchaser to the carriers with a copy to ourselves within seven days of receipt of the goods. (In the latter event the carrier's documents should be signed for “not examined”). Provided such notice is given, we shall assist the purchaser to obtain proof of delivery or admission of short delivery or damage from the carrier.
    2. Goods will be despatched to destinations outside the United Kingdom FOB, the contract will be governed by the provisions of Incoterms current at the date of acceptance of the order (see footnote).
  8. PROPERTY:-
    1. Notwithstanding delivery and the passing of risk in the goods, or any other provision of these Conditions, ownership in the goods shall not pass to the purchaser until we have received in cash or cleared funds payment in full of the price of the goods and all other goods agreed to be sold by us to the purchaser for which payment is then due.
    2. Until such time as ownership in the goods passes to the purchaser, the purchaser shall hold the goods as our fiduciary agent and bailee, and shall keep the goods separate from those of the purchaser and third parties and properly stored, protected and insured and identified as our property. Until that time the purchaser shall be entitled to resell or use the goods in the ordinary course of its business, but shall account to us for the proceeds of sale or otherwise of the goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the purchaser and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
    3. Until such time as ownership in the goods passes to the purchaser (and provided the goods are still in existence and have not been resold) we shall be entitled at any time to require the purchaser to delivery up the goods to us and, if the purchaser fails to do so forthwith, to enter upon any premises of the purchaser or any third party where the goods are situated and repossess the goods.
  9. PACKING:- Packing cases when charged will be credited in full if returned to us carriage paid in good condition within one month from date of despatch by us. Export packing (including cases) is not returnable.
  10. GUARANTEE:-
    1. All goods supplied are carefully inspected and checked before despatch and we will at our absolute discretion either make good or replace free of charge or credit any part supplied by us that is proved and admitted by us to be defective due to faulty material or workmanship, provided samples of any parts complained of are sent to us carriage paid and accompanied by full details of the complaint within three months following despatch from our works, beyond which period we cannot accept any responsibility.
    2. The above warranty is given to the purchaser subject to the following conditions:
      1. we shall be under no liability in respect of any defect in the goods arising from any drawing, design or specification supplied by the purchaser;
      2. we shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, incorrect movement, installation or erection, failure to follow our instructions (whether oral or in writing), misuse or alteration or repair of the goods without our approval.
    3. Except in respect of death or personal injury caused by our negligence, we shall not be liable to the purchaser by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss or profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by our negligence or that of our employees or agents or otherwise) which arise out of or in connection with the supply of the goods or their use or resale by the purchaser, except as expressly provided in these Conditions.
    4. Bearing in mind that we have no control over the application of the goods comprised in this order, nor of the way in which they will be incorporated into the products of other manufacturers, the order is accepted and the goods will be supplied only on the clear understanding that the customer accepts full responsibility and liability for any claims which may arise from such application or use.
    5. We shall not be liable to the purchaser or be deemed to be in breach of the Contract by reason of delay in performing, or any failure to perform, any of our obligations in relation to the goods, if the delay or failure was due to any cause beyond our reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond our reasonable control:
      1. Act of God, explosion, flood, tempest, fire or accident;
      2. war or threat of war, sabotage, insurrection, civil disturbance or requisition;
      3. acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
      4. import or export regulations or embargoes;
      5. strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the seller or a third party);
      6. difficulties in obtaining raw materials, labour, fuel, parts or machinery;
      7. power failure or breakdown in machinery.
    6. SUBJECT AS EXPRESSLY PROVIDED IN THESE CONDITIONS, AND EXCEPT WHERE GOODS ARE SOLD TO A PERSON DEALING AS A CONSUMER (WITHIN THE MEANING OF THE UNFAIR CONTRACT TERMS 1977), ALL WARRANTIES, CONDITIONS OR OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
    7. WHERE THE GOODS ARE SOLD UNDER A CONSUMER SALE (AS DEFINED BY THE CONSUMER TRANSACTIONS [RESTRICTIONS ON STATEMENTS] ORDER 1976) THE STATUTORY RIGHTS OF THE BUYER ARE NOT AFFECTED BY THESE CONDITIONS.
    8. Save for liability for death or personal injury resulting from our negligence our aggregate liability under any one claim or under the total of all claims arising from any one act or default by us howsoever such claim or claims arise (be it by negligence, breach of contract, misrepresentation or otherwise) shall in no circumstances exceed the price of the goods which are the subject of the claim.
  11. FREE-ISSUE PARTS AND MATERIALS:-
    1. Although all reasonable care will be exercised by us and by our sub-contractors in handling parts and/or materials supplied by purchasers on a free-issue basis, we cannot accept liability for the costs of replacing or repairing such parts and/or materials which may be lost, damaged or scrapped for any reason.
    2. Purchasers are liable for any costs to us resulting from:
      1. Any delay, for any reason whatsoever, in supplying free-issue parts and/or materials by the date specified on our Order Acknowledgement or elsewhere.
      2. Such parts and/or materials proving to be unsuitable in any way for the purpose for which they are supplied.
      3. Any clearance charges and/or duties or taxes levied on imported free-issue parts and/or materials.
    3. The inability of a purchaser to supply free-issue parts and/or materials for the purpose of our manufacturing goods or carrying out services in accordance with such purchaser's order will not constitute a cause for the purchaser cancelling the order in respect of which the purchaser will remain completely liable.
  12. COLOUR:- We accept no responsibility for slight variations of colour.
  13. QUANTITY VARIATION:- Prices quoted are for the full quantity specified to be made and delivered in one lot unless special delivery arrangements are made. We may supply up to 10% (20% in the case of orders of £500 in value and under) more or less than the exact quantity ordered and customers shall accept and pay at the quoted rate for the actual quantity delivered.
  14. CANCELLATION:-
    1. We cannot accept cancellation of orders for goods without our written consent.
    2. This sub-clause applies if:
      1. the purchaser makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purchase of amalgamation or reconstruction); or
      2. an encumbrancer takes possession, or an administrative receiver or administrator is appointed, of any of the property or assets of the purchaser; or
      3. the purchaser ceases, or threatens to cease, to carry on business or suffers any action in consequence or debt; or
      4. we reasonably apprehend that any of the events mentioned above is about to occur in relation to the purchaser and notifies the purchaser accordingly.
    3. If any of the above events applies, then without prejudice to any other right or remedy available to us, we shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the purchaser, and if the goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
  15. INTELLECTUAL PROPERTY RIGHTS:-
    1. The purchaser agrees to indemnify us against all liability incurred by us whether by way of legal costs, expert's fees, manufacturing costs, damages or otherwise, howsoever arising, by reason of our having manufactured goods or parts to the purchaser's design and our being called upon to take or defend proceedings or take legal or expert advice with regard to any alleged infringement or patent rights, copyrights or design.
    2. The purchaser acknowledges that any and all of the trade marks, trade names, copyrights, patents, service marks, design rights and registered designs and other intellectual property rights used or embodied in or in connection with the goods or any parts thereof in which we have an interest is and shall remain vested in us. The purchaser shall not at any time in any way question or dispute the ownership of any such rights.
    3. In the event that new inventions designs or processes evolve in performance or as a result of any agreement under these Conditions the purchaser acknowledges that all intellectual property rights in the same shall belong to us unless otherwise agreed in writing by us.
    4. We shall defend at our expense any claim (or related action) brought against the purchaser alleging that the goods or any parts thereof supplied hereunder infringe any patent or other intellectual property right and shall pay all costs and damages finally awarded provided that we are given prompt written notice of such claim and given information reasonable assistance and sole authority to defend or settle such claim. In the defence or settlement of any such claim we may obtain for the purchaser the right to continue using any such goods or replace or modify them so that they become non-infringing or if such remedies are not reasonably available grant the purchaser a credit for any such goods as depreciated and accept their return. The above provisions of sub-clause (a) do not apply if the alleged infringement occurs in circumstances where the purchaser is liable to indemnify us pursuant to sub-clause (a) of this clause or if the alleged infringement is based upon the use or sale of any of the goods in combination with other products or devices not furnished by us. We disclaim all other liability for infringement of any patent or other intellectual property right including any incidental or consequential loss and damages.
  16. TOOLS OR MOULDS:- Unless otherwise agreed between the purchaser and ourselves, in the case of orders where special tools, moulds, gauges, etc. are required for the manufacture of the parts to be supplied, the purchaser will be charged with a part cost of the manufacture or purchase of such tools as and when samples for approval are submitted but such tools remain our property and we reserve the right to retain possession of them. Where it is specifically requested by the purchaser and agreed by us we will undertake to use tools manufactured on behalf of that purchaser for the execution only of orders placed by the said purchaser.
  17. INTERPRETATION OF THESE CONDITIONS:-
    1. Each of the above terms may be construed independently of the other and may be severed from all or any of the above Conditions.
    2. No waiver by us of any breach of the Contract by the purchaser shall be considered as a waiver of any subsequent breach of the same or any other provision.
  18. LAW OF CONTRACT:- The order will be deemed to be an English Contract governed by English Law and action or actions shall be heard in an appropriate English Court.

Footnote
Copies of Incoterms are obtainable from the International Chamber of Commerce National Committee or from the Publications Division of I.C.C. International Headquarters, 38 Court Albert-1er, 75008 Paris. carhen\ejadocs\TAH.2

TAH EUROPE INC

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