Terms & Conditions of Sale

Maloney Metalcraft Ltd, whose address is Chatteris Business Park, Honeysome Road, Chatteris PE16 6SA, United Kingdom (“Seller”), hereby agrees to sell to the purchasing entity named on the attached Proposal (“Buyer”), and Buyer hereby agrees to purchase, the parts and/or equipment (“Goods”) and services described in its Proposal and/or Buyer’s appended Purchase Order, if attached and signed by Seller, (either an “Order”) under these terms and conditions and in consideration of the mutual covenants herein contained, and other good and valuable consideration (this “Agreement”).

1.  Controlling Terms. Buyer’s execution of this Agreement or taking delivery of any part of the Goods shall constitute acceptance of these terms and conditions contained herein along with any terms and conditions that the manufacturer requires Seller to incorporate into a sale of its products. Seller expressly rejects any terms and conditions submitted by Buyer that are inconsistent with or in addition to the terms and conditions contained herein, and Seller’s agreement to provide the Goods is expressly conditioned upon Buyer’s acceptance of these terms and conditions herein. No waiver or alteration of, or addition to these terms and conditions shall be binding unless expressly agreed to in writing by an officer of Seller.

2. Prices. The terms of payment are net cash in Pounds Sterling via wire transfer to account(s) specified by Seller, according to the agreed to payment milestone schedule or, if none, on or before tender to carrier at Seller’s facility. If shipment is made in installments, a prorata payment shall be due as each shipment is made. Prices quoted are Ex Works Seller’s facility (here and throughout this Agreement, as defined by INCOTERMS 2000) with shipping charges to be paid by Buyer unless otherwise agreed to in writing by Seller. The prices quoted do not include change orders or changes in shipping or other costs that might stem from any change order accepted by Seller.

3. Taxes and Fees. All prices are exclusive of and buyer is responsible for any VAT, UK statutory or local property, license, privilege, sales, use, excise, gross receipts or other taxes or fees which may now be or hereafter become applicable to this transaction, the Goods or to any services performed in connection therewith, and all such taxes and fees shall be for Buyer’s account. If any resale certificate, Direct Pay Permit, or tax exemption certificate provided by Buyer to Seller is not recognized by the taxing authority involved, Buyer will promptly reimburse Seller for any taxes, interest, fines and penalties that Seller is required to pay. In the event Seller executes a waiver of the statute of limitations, which includes in whole or part the Work in this Agreement, in connection with an audit conducted by a proper Governmental Authority, the statute of limitations shall not apply to the obligation of Owner to reimburse taxes, penalties and/or interest to Seller under this section.

4. Interest & Legal Fees. In the event of default in the payment of any amounts owed hereunder, interest at the rate of 1.5% above the Bank of England base rate per month or the maximum legal rate, whichever is less, will be assessed on the unpaid balance from the date payment was due. In the event that this account is placed in the hands of a Lawyer for collection, Buyer also agrees to pay all fees, expenses and costs of collection incurred by Seller, including reasonable Lawyers’ fees.

5. Delivery, Title & Risk of Loss. Risk of loss or damage to the Goods shall pass to Buyer upon oral, electronic or other written tender of delivery Ex Works Seller’s facility unless otherwise agreed to in writing by Seller, and Buyer shall keep the Goods fully insured with loss payable to Seller from the time of delivery until the purchase price has been fully paid to Seller. Title to the Goods sold shall also pass at the time of delivery as set forth above, with Seller retaining a security interest in the Goods until such time as it receives full and final payment, and Buyer agrees to execute and file all documents deemed necessary by Seller to perfect said security interest. Any delivery dates quoted are approximate and shall depend on prompt receipt by Seller of all information necessary to proceed with the Goods immediately and without interruption. If the parties agree in writing to require Seller’s delivery to Buyer’s premises or jobsite, the price quoted, and delivery is conditional upon free ingress and egress to the location and upon the location being readily accessible. Seller reserves the right to make delivery in installments, and a delay with respect to any installment shall not affect any other installments. Any delivery of Goods that is delayed by causes within Buyer’s control or due to Buyer’s inability to accept delivery may be placed in storage by Seller at Buyer’s risk, and Buyer shall be responsible for all freight, storage, insurance, and other expenses incurred thereby.

6. Acceptance. Buyer’s acceptance of the Goods sold shall occur upon delivery unless Seller is otherwise notified in writing of Buyer’s intent to reject the Goods for non-conformance within five (5) days from Buyer’s receipt of the Goods. Buyer’s acceptance of the Goods shall constitute a waiver of any claim for damage or shortage of Goods. Seller shall have no less than thirty (30) days from the date of receipt of such notice to remedy any nonconforming aspects of the Goods. Buyer waives any right to revoke its acceptance of Goods, it being the intent of the Parties that Buyer’s rights and remedies for any non-conformity of Goods after acceptance shall be limited to Seller’s warranty set out herein and subject to all limitations described herein.

7. Force Majeure. Seller and the manufacturers of components incorporated into the Goods sold hereunder shall not be liable for loss damage, detention, or delay, and Seller’s lack of performance will be excused, due to causes beyond Seller’s or said manufacturers’ reasonable control, including but in no way limited to war, civil insurrection or acts of the common enemy, fire, flood, strikes or other labour difficulty, acts of civil or military authority including governmental laws, orders, priorities or regulations, acts of the Buyer, embargo, car shortage, wrecks or delay in transportation, inability to obtain necessary labour, materials or manufacturing facilities from usual sources, and faulty forgings or castings. In the event of delay in performance due to any such cause, the time of performance shall be extended for a period of time equal to the period of the delay. If a delay resulting from any such causes extends for more than ninety (90) days and the parties have not agreed upon a revised basis for performance hereunder at the end of the delay, then either party, upon thirty (30) days written notice, may terminate the Order with respect to the unexecuted portion whereupon Buyer shall compensate Seller for work performed through the date of termination plus any charges, fees or direct costs, including reasonable, noncancelable obligations incurred by Seller prior to receipt of the notice of termination, or incurred by Seller in terminating the work.

8. Warranty of Goods Manufactured by Seller. Seller warrants parts manufactured by it to be free from defects in material and workmanship for a period of twelve (12) months from date of startup or eighteen (18) months from the date of delivery, whichever occurs earlier, subject to the following conditions. Seller’s sole responsibility under this warranty shall be to either repair or replace, at its option, any such parts that fail under this warranty, provided Buyer has promptly reported same to Seller in writing. Such parts or repairs shall be provided at no cost to Buyer, at Seller’s facilities, during regular working hours. This warranty shall not apply to component parts or accessories not manufactured by Seller or to normal maintenance work, maintenance parts or normal wear and tear. Seller’s obligation under this warranty shall not include any transportation charges, cost of installation, duty, taxes or any other charges whatsoever.

9.  Warranty of Other Manufacturer’s Products. Seller makes no warranties or representations of any kind, whether expressed, implied or statutory, and disclaims any responsibility for any component parts or accessories sold hereunder which are not manufactured by Seller. To the fullest extent permitted by law and by the manufacturers, Seller extends to Buyer the manufacturer’s warranty given to Seller by the manufacturer(s) of said component parts and accessories, but Seller does not guarantee those warranties. Claims under any manufacturer’s warranty shall be made in accordance with the manufacturer’s requirements regarding the return, repair, or replacement. Seller agrees to use all reasonable efforts and to cooperate with Buyer in processing any such claims.

10. Limitation of Warranty. The warranties contained herein do not apply (i) to repairs or replacements required because of accident, misuse, neglect, failure to maintain in accordance with manufacturer specifications, or causes other than ordinary use, (ii) to any portion of the Goods modified by or on behalf of Buyer, (iii) to design parameters and equipment selections mandated by the Buyer or user which are not in accordance with Seller’s standard design and safety practices, (iv) where manufacturer serial numbers or warranty decals have been removed or altered, (v) where Seller performed as directed by Buyer, its agents or representatives and the warranty matter arises as a result of Seller’s compliance with those directions, (vi) where Buyer fails to follow the recommended operating and maintenance procedures of the original equipment manufacturer, (vii) where Buyer fails to maintain an industry- standard safety shutdown/alarm system, (viii) where Seller is not invited to participate in start-up procedures after installation of the Goods or (ix) to the overall operations of any system(s) in which Goods constitute a component.

11. Disclaimer of Non-Express Warranties. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN< SELLER DISCLAIMS ALL WARRANTIES ON THE GOODS AND SERVICES FURNISHED HEREUNDER, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AGAINST REDHIBITORY DEFECTS OR VICES. BUYER ACKNOWLEDGES AND ACCEPTS THE EXPRESS WARRANTIES AS ITS SOLE REMEDY WITH RESPECT TO THE GOODS AND SERVICES. THE EXPRESS WARRANTIES STATED HEREIN ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF THE SELLER FOR DAMAGES, INCLUDING BUT NOT LIMITED TO SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE GOODS AND SERVICES SOLD HEREUNDER.

12. Indemnity. In this Agreement, "Claims" shall mean all claims, demands, causes of action, liabilities, damages, judgments, fines, penalties,  awards,  losses, costs, expenses (including, without limitation, attorneys' fees and costs of litigation) of any kind or character arising out of, or related to, the performance of or subject matter of thisAgreement.                                                                                                                                                                                               

A. Seller shall release, indemnify, defend and hold Buyer and (i) its parent, subsidiaries and affiliated or related companies, (ii) its and their working interest owners, co-lessees, co-owners, partners, joint  operators,  customers, joint ventures, if any, and their respective parents, subsidiaries and affiliated or related companies, and (iii) the officers, directors, employees, and consultants of all of the foregoing (hereinafter “Buyer Group”) harmless from and against any and all Claims brought by, through or derived from any member of Seller Group (as defined below in Paragraph 12(B) or Seller Group’s subcontractors or their employees with respect to loss, destruction or damage of the property of Seller Group or Seller Group’s subcontractors or their employees, or personal or bodily injury, sickness, disease or death, loss of services and/or wages, or loss of consortium or society of any member of Seller Group or Seller Group’s subcontractors or their employees, agents or invitees.

B. Buyer shall release, indemnify, defend and hold Seller and (i) its parent, subsidiaries and affiliated or related companies, (ii) the manufacturers of Goods, and (iii)
the officers, directors, employees, and consultants of all  of the foregoing (hereinafter “Seller Group”) harmless from and against any and all Claims brought by, through    or derived from any member of Buyer Group or Buyer Group’s other contractors or  subcontractors  or their respective employees, and consultants with respect to loss, destruction or damage of the property of Buyer Group or Buyer Group’s other contractors or subcontractors or their respective employees and consultants, or with respect to personal or bodily injury, sickness, disease or death, loss of services and/or wages, or loss of consortium or society of any member of Buyer Group or Buyer Group’s contractors or subcontractors or their respective employees or consultants. Pursuant to Article 5 of this Agreement, the Goods become Buyer’s property upon transfer of risk of loss and title as setforth herein, notwithstanding Seller’s retention of a security interest in the Goods until such time as it receives full and final payment.

C. Each party covenants and agrees to support the mutual indemnity obligations contained in Paragraphs 12(A) and 12(B) above, by carrying insurance (or qualified self-insurance) of the types and in the amounts not less than those specified in Article 13 of this Agreement, for the benefit of the other party.

D. THE ASSUMPTIONS AND EXCLUSIONS OF LIABILITY, RELEASES AND INDEMNITIES SET FORTH IN THIS ARTICLE 12 SHALL APPLY TO ANY CLAIM(S) WITHOUT REGARD TO THE CAUSE(S)  THEREOF INCLUDING, WITHOUT LIMITATION, PRE-EXISTING CONDITIONS, WHETHER SUCH CONDITIONS BE PATENT OR LATENT, THE UNSEAWORTHINESS  OF ANY VESSEL OR VESSELS, IMPERFECTION OF MATERIAL, DEFECT OR FAILURE OF  EQUIPMENT, BREACH OF REPRESENTATION OR WARRANTY (EXPRESS OR IMPLIED), ULTRAHAZORDOUS ACTIVITY, STRICT LIABILITY, TORT, BREACH OF CONTRACT, BREACH OF STATUTORY DUTY, BREACH OF ANY SAFETY REQUIREMENT OR REGULATION, OR THE NEGLIGENCE OF ANY PERSON OR PARTY OR GROUP, INCLUDING, WITHOUT LIMITATION, THE INDEMNIFIED PARTY OR PARTIES AND THEIR GROUPS, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT AND/OR CONCURRENT, ACTIVE OR PASSIVE, OR ANY OTHER THEORY OF LEGAL LIABILITY.

E. WITH RESPECT TO THIS ARTICLE, BOTH PARTIES AGREE THAT THIS LANGUAGE COMPLIES WITH THE REQUIREMENT KNOWN AS THE EXPRESS NEGLIGENCE RULE, TO EXPRESSLY STATE IN A CONSPICUOUS MANNER TO AFFORD FAIR AND ADEQUATE NOTICE THAT PROVISIONS REQUIRING ONE PARTY (THE INDEMNITOR) TO BE RESPONSIBLE FOR THE NEGLIGENCE, STRICT LIABILITY, OR OTHER FAULT OF ANOTHER PARTY (THE INDEMNITEE).

13. Insurance. Upon written request, each party shall furnish to the other party certificates of insurance evidencing the fact that adequate insurance to support each party’s obligations hereunder has been secured. To the extent of each party’s indemnity and release obligations hereunder, each party agrees that its insurance policies shall (i) be primary to the other party’s and its Group’s insurance (ii) name the other party and its Group as additional insured, and (iii) be endorsed to waive subrogation against the other party and its Group.

14. Limitation of Liability. The remedies of the Buyer set forth herein are exclusive, and the total liability of the Seller Group and the manufacturers of Goods with respect to this Agreement and the Goods and services furnished hereunder, and in connection with the performance or breach thereof, and from the manufacture, sale, delivery, installation, repair, replacement or technical direction or services covered by or furnished under this Agreement, whether based on contract, warranty, tort, negligence, indemnity, strict liability, products liability or otherwise, shall not exceed the purchase price of the Goods or services upon which such liability is based provided, however, that the limitation of liability set forth in this Article 14 shall not apply to demands, claims, and liabilities which are the subject matter of the indemnity provisions set forth in Article 12.

15. Waiver of Consequential Damages. NEITHER BUYER GROUP NOR SELLER GROUP NOR MANUFACTURERS OF COMPONENTS OF THE GOODS SHALL IN ANY EVENT BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR ANY BREACH HEREOF, INCLUDING BUT NOT LIMITED TO DAMAGES FOR ANY DEFECT IN, OR FAILURE OF, OR MALFUNCTION OF THE GOODS SOLD OR SERVICES SUPPLED HEREUNDER, WHETHER BASED UPON LOST GOODWILL, LOST REVENUE OR ANTICIPATED PROFITS (EXCEPT THOSE INCLUDED IN THE PRICE OF THE GOODS), INTEREST, LOSS OF USE, WORK STOPPAGE, IMPAIRMENT OF OTHER GOODS, LOSS BY REASON OF SHUTDOWN OR NON- OPERATION, INCREASED EXPENSES OF OPERATION OF THE GOODS, LOSS OF USE OF POWER SYSTEM, COST OF PURCHASE OF REPLACEMENT POWER, OR CLAIMS OF BUYER OR CUSTOMERS OF BUYER FOR SERVICE INTERRUPTION, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, WARRANTY, SOLE OR CONCURRENT NEGLIGENCE, INDEMNITY (OTHER THAN AS PROVIDED IN ARTICLE 12 OF THIS AGREEMENT), STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.

16. Packaging. The Goods shall be packed according to Seller’s standard packaging standards, unless the parties expressly agree to the contrary in writing.

17. Setoffs. Buyer shall not set off against any amounts due Seller amounts claimed by Buyer against Seller for any reason whatsoever.

18. Assignment / Successors. Buyer cannot assign this Agreement or any part hereof without prior written consent of Seller. These terms and conditions shall be binding upon and inure to the benefit of the parties and, when validly assigned, to their respective heirs, executors, administrators, successors and/or assigns.

19. Termination, Cancellation & Delays. Seller may terminate this Agreement if Buyer (a) is adjudged bankrupt, or a general assignment is made for the benefit of creditors, or a receiver is appointed on account of insolvency or (b) defaults in the performance of any material  provision of this Agreement, including the payment of any sum due hereunder, and then fails to correct any such situation within fifteen (15) days following the date of written notice thereof (“termination for cause”). Buyer may, with no less than sixty (60) days advance written notice and Seller’s consent, cancel this Order for convenience (“cancellation for convenience”), except if the Goods are scheduled for completion within sixty (60) days of the date of such written notice. Upon expiration of the sixty (60) day advanced notice period, Seller shall discontinue all work pertaining to the Goods, although Seller may do so earlier in its sole discretion. In addition to any remedies available to Seller within this Agreement, by law or in equity, in the event of Seller’s termination for cause or Buyer’s cancellation for convenience, Buyer shall promptly pay Seller the amount specified in this Agreement’s Early Termination Schedule or, if none, an amount no less than (a) a prorata portion of the Order price measured by the percentage of completion of the Goods as determined by Seller, which measure may include, but need not be limited to, the ratio of progress payments due through the effective date of termination/cancellation relative to the total purchase price plus (b) costs incurred to effect, and as a result of, the cancellation of the Order and any of Seller’s subcontracts plus (c) twenty percent (20%) of “(a)” plus “(b).” Upon Seller’s receipt of full payment, Seller shall, if so, directed by Buyer, ship to Buyer at Buyer’s expense, all Goods for which Buyer has made payment. If Buyer fails to take possession of such materials within thirty (30) days of the date of full payment, Seller shall have the right to dispose of the Goods as it sees fit, without further obligation to Buyer and without in any way affecting Buyer’s obligation hereunder.  Nothing contained herein shall be construed to require Seller to sell partially completed Goods or components of the Goods to Buyer or entitles the Buyer to purchase the same. Seller will consider Buyer’s written request for reasonable delays in the commencement of the Goods if received before fabrication has commenced. Notwithstanding any such request, if the fabrication of the Goods has commenced or if Seller declines Buyer’s delay request, Seller may proceed with fabrication and completion of the Goods without delay. If Seller approves Buyer’s delay request, Buyer accepts risk of loss for the Goods and agrees to pay Seller’s reasonable preservation and storage charges. If Seller agrees to accept Buyer’s delay request with respect to completed Goods, Buyer shall execute documentation satisfactory to Seller memorializing, among other things, the foregoing as well as the transfer to Buyer of title to the Goods.

20. Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of England and Wales. The parties agree that this Agreement is not subject to and shall not be interpreted in accordance with the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising under this Agreement which cannot be settled amicably shall be settled by arbitration in accordance with the Rules of the London Court of International Arbitration. In such event the Seller and the Buyer shall each select one arbitrator and the two arbitrators so chosen shall select a third arbitrator, who shall be the presiding arbitrator. If within a period of thirty days from the date of the notice of arbitration, either of the Parties has failed to appoint an arbitrator, or the two appointed arbitrators have failed to select the third arbitrator within thirty days after both arbitrators have been appointed, the London Court of International Arbitration shall appoint such arbitrator or arbitrators as have not been appointed. The arbitration proceedings shall be held in London, England. The decision of the arbitrators shall be final and binding upon the Parties. Judgment upon the arbitration award rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of the award and an order of enforcement, as the case may be. The arbitration proceedings shall be conducted in the English language.

21. Notices. All communications pursuant to this Agreement shall be in writing and shall be personally delivered, mailed by mail (postage prepaid) to the address stated above in the case of the Seller or the address on the Order in the case of the Buyer, telecopied or emailed; provided, notice by telecopy or email shall be confirmed promptly in writing by mail. Notice shall be deemed given and effective on receipt.

22. Waiver. No waiver of any breach of any term, covenant or condition herein shall constitute a waiver of any other or subsequent breach of any term, covenant or condition hereunder. No forbearance or indulgence shall constitute a waiver or change of any covenant or condition.

23. Severability. If any term or provision of this Agreement, or the application thereof to any person or circumstance, shall at any time or to any extent be invalid, illegal or unenforceable in any respect as written, Buyer and Seller intend for any court or arbitrator construing this Agreement to modify or limit such provision temporally, spatially or otherwise so as to render it valid and enforceable to the fullest extent allowed by law. Any such provision that is not susceptible of such reformation shall be ignored so as to not affect any other term or provision hereof, and the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid, illegal or unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.

24. Compliance with Laws. Buyer warrants that it will comply with all applicable international, federal, state and local laws and regulations related to the purchase, use and resale of the Goods, including those governing export control, unfair competition, corrupt practices and anti- discrimination.

25. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter herein. Except as otherwise provided herein, no changes, modifications, or additions to this Agreement shall be valid unless the same shall be in writing and signed by duly authorized representatives of the parties hereto. This Agreement is subject to acceptance by Seller, who reserves the right to reject any order, in its sole discretion.

26. Acceptance of Waivers and Limitations. Buyer acknowledges that:

(i) it is a sophisticated purchaser of goods and services of the type described herein,

(ii) it and its legal counsel have been afforded the opportunity to review and participate in the negotiation and settlement of this Agreement,

(iii) it fully understands the nature and extent of the waivers and limitations on Buyer’s rights and remedies set out herein and it accepts such waivers and limitations, and

(iv) any rule of construction to the effect that any ambiguity contained herein is to be resolved against a drafting Party shall not be applicable to the interpretation of this Agreement.
 

5th July 2013