1. GENERAL

The Following conditions issued by Excel Process Systems Ltd (“the Company”) apply to any contract of which these conditions form  part to the exclusion of any conditions of order or purchase of the customer or any other standards, specifications, conditions or  particulars of or adopted by the Customer unless expressly accepted in writing by the Company as part of the contract. “Goods” mean  the subject matter of the contract including but not limited to raw materials, finished or semi-finished materials or articles, machinery,  parts, spares, commodities, etc. and whether one or a number of items, whether or not identical or similar. These conditions apply to  services provided by the Company in the same way as they apply to goods supplied by the Company.  

2. QUOTATION AND TENDERS  

2.1 No order placed in response to the company’s quotation will be binding unless accepted by the Company in writing.  2.2 Where goods are to be supplied from stock, such supply is subject to availability of stocks at the date of delivery.  2.3 Tenders submitted by the Company shall remain open for acceptance for a period of 30 days from the date of tender, unless some  other period is specified or accepted within the tender.  

3. PRICES  

3.1 Where the goods are sold by reference to the company’s published price list, the price payable for the goods shall be the ruling price  as published in the price list current at the date of despatch of the goods from the Company’s works.  

3.2 In other cases the price of goods or services stated in the contract is based on the cost to the Company of materials, fuel and power,  transport, tooling and labor at the date of acceptance of the order of quotation (whichever is earlier) if at the date of despatch of the  goods or performance of the service there has been any increase in all or any of such cost, the price payable for the goods or services  may at the request of the Company be increased accordingly.  

3.3 Where the price for the goods is varied in accordance with this condition the price as varied shall be binding on both parties and  shall not give either party any option of cancellation.  

3.4 There shall be added to the price any value added tax and other tax or duty relating to the manufacture, transportation, export,  import, sale or delivery of the goods or performance of the services (whether initially charged on or payable by the Company or the  Customer).  

3.5 All goods are sold “ex works” unless otherwise stated. If the Company arranges or undertakes the carriage, freight, insurance and  any other transport costs beyond the point of delivery such costs shall be for the Customer’s account and shall not affect the provisions  of the contract as to the passing or risk.  

4. TERMS OF PAYMENT  

Prices quoted are net subject to credit being approved and unless otherwise expressly agreed accounts are due for payment as follows:  (a) 30% of the contract price on placement of order  

(b) 60% of the contract price or the balance of the contract price (if the contract price does not provide for installation/commissioning)  on delivery of the goods or performance of the services.  

(c) The balance of the contract price on completion of the installation/commissioning works as certified by the Company or within 30  days of delivery whichever is the sooner.  

When deliveries are spread over a period each consignment will be invoiced accordingly and each invoice will be treated as a separate  account and be payable accordingly. Failure to pay for any goods or services or for any delivery or installment shall entitle the Company  to suspend further deliveries and work both on the same order and on any other order from the Customer without prejudice to any other  rights the Company may have. The Company also reserves the right to charge interest on overdue accounts at the rate of 2% per  month. The Company reserves the right where genuine doubts arise as to a Customer’s financial position or in the case of failure to pay  for any goods or services or any delivery or installment as aforesaid to suspend delivery or performance of any order or any part or  installment without liability until payment or satisfactory security for payment has been provided.  

5. NON-STANDARD ORDERS  

Where the customer orders goods or materials of a type, size or quality not normally produced by the Company, the Company will use  all reasonable endeavors to execute the order, but if it proves impossible, impractical or uneconomical to carry out or complete the  order, the Company reserves the right to cancel the contract or the uncompleted balance thereof, in which event the Customer will only  be liable to pay for the part thereof actually delivered.  

6. DELIVERY AND COMPLETION DATES  

6.1 The delivery or performance dates specified in the contract are approximate only, and unless otherwise expressly stated, time is not  of the essence for delivery or performance. The Company will not be liable in any circumstances for the consequences of any delay in  delivery or performance or failure to deliver or perform if the duration of the delay is not substantial or if the delay or failure is due to an  act of God, fire, inclement or exceptional weather conditions, industrial action (whether at the Company’s premises or elsewhere)  hostilities, breakdowns, shortage of labor, materials, power or other supplies, late delivery or performance of non-delivery or non 

performance by suppliers or subcontractors, governmental order or intervention (whether or not having the force of law) or any other  cause whatsoever beyond the Company’s control or of an unexpected or exceptional nature.  

6.2 No delay shall entitle the Customer to reject any delivery or services or any further installment or part of the order or any other order  from the Customer or to repudiate the contract or the order.  

6.3 The Company cannot undertake to meet any schedule of Customer’s requirements supplied after the date of the contract and will  have no liability whatsoever for delay in meeting or failure to meet all or any such requirement, in which event paragraph 6.1 of this  Condition shall apply.  

7. DELAYED ACCEPTANCE  

If for any reason the Customer is unable to accept delivery of the goods when the goods are due and ready for delivery the Company  may arrange storage of the goods and the Customer shall be liable to the Company for the reasonable costs (including insurance) of  such storage. This provision is without prejudice to any other rights which the Company may have in respect of the Customer’s failure to  take delivery of the goods or to pay for them in accordance with the contract.  

8. RETENTION OF TITLE  

(a) The risk in the goods shall pass to the Customer:  

(i) When the goods are despatched from the Company’s premises or  

(ii) If the goods are appropriated to the Customer but kept at the Company’s premises at the request of the Customer.  (b) Notwithstanding subclause (a) above legal and equitable ownership of the goods shall remain with the Company until payment for  the goods has been received by the Company in full or until the Customer sells the goods to its customers by way of a bona fide  sale at full market value whichever shall first occur.  

(c) At any time prior to full payment (whether or not payment is then overdue) the Company may (without prejudice to any of its other  rights) retake possession of the goods or any part thereof and may enter on the Customers premises by its employees or agents  for that purpose.  

(d) Until the time of full payment the Customer is entitled to use the goods in the normal course of its business or to sell the goods to  third parties in the normal course of its business. The Company shall have the right to trace the proceeds of the sale according to  the principles in Hallett’s Estate (1880) 13 CH D 696.  

(e) The Customer’s right to use the goods or to resell them prior to full payment may be terminated forthwith by written notice given by  the Company to the Customer and shall automatically terminate with or without such notice on the appointment of any receiver or  liquidator of the Customer.  

9. WARRANTY, LIMIT OF RESPONSIBILITY GOODS  

9.1. The Company warrants in relation to goods manufactured to the Company’s designs that it will (at the Company’s choice) either  repair or replace or refund the purchase price of any goods or an appropriate part thereof which are found within a period of 6 months  from despatch of such goods (“the warranty period”) to be defective or not in accordance with the contract or any express description or  representation given or made on behalf of the Company in respect of the goods. The warranty under this clause does not apply to  standard or proprietary components or items of equipment.  

9.2 The Company warrants in relation to goods not manufactured to the Company’s design and in relation to standard or proprietary  components or items of equipment that it will so far as it is able to do so give the Customer the benefit of any express guarantee or  warranty by the manufacturer or supplier of such goods and of any other rights which the Company has against the manufacturer or  supplier.  

9.3 In the event of any claim under any of the foregoing warranties or under any condition or warranty implied by law or under any other  express condition warranty or guarantee the following provisions shall apply:  

(a) The Company will require a reasonable period of time to carry out any repair or replacement.  

(b) All costs of dismantling, digging out and replacement and re-assembly shall be for the Customer’s account.  (c) The goods to be repaired or replaced shall be delivered or returned at the Customer’s expense to a location specified by the  Company for repair or replacement and the expenses of re-delivery shall also be for the Customer’s account.  (d) The Customer shall make such facilities (such as handling equipment, tools, labor and services, etc.) as the Company  reasonably requires available to the Company for the purpose of repair or replacement.  

(e) Replaced items will become the property of the Company.  

(f) The goods must have been kept in good condition and must have been used properly by the Customer.  9.4 The Customer’s remedies in respect of any claim under the foregoing express warranty or against any manufacturer or supplier as  aforesaid or any claim under any condition or warranty implied by law or any other claim in respect of the goods or any workmanship in  relation thereto (whether or not involving negligence on the part of the Company) shall in relation to goods falling within paragraph 9.1 of  this condition be limited to repair replacement or refund of the purchase price or a part thereof as aforesaid and any condition or  warranty implied by law shall cease to apply after the expiry of the warranty period and in relation to goods falling within paragraph 9.2  of this condition by limited to the enforcement of the above mentioned liabilities of the manufacturer or supplier.  9.5 The Company shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses or other liabilities,  whether direct or consequential, and any other remedy which would otherwise be available in law, is hereby excluded except to the  extent that such exclusion is prohibited by any rule of law.  

9.6 The goods are sold as second-hand goods on the express understanding that they are sold without any warranty. The Customer  has had the opportunity to inspect and test the goods fully and is deemed to be aware of any defects which the goods have (not limited  to those itemized in the order form signed by the Customer). Accordingly, all conditions and warranties implied by law are hereby  excluded except to the extent that such exclusion is prohibited by any rule of law.  

9.7 If the goods are found to be substantially not in accordance with the contract or any express description or representation given or  made on behalf of the Company in relation to the goods within 3 days of the date of the contract of which these conditions form part or  not in accordance with any condition or warranty implied by law and not hereby excluded then the Company will (at the Company’s  choice) either rectify the defect or accept a return of the goods and refund the purchase price (less a reasonable allowance for use,  wear and tear and damage to the goods occurring between delivery and return thereof) or make an appropriate allowance in the  purchase price.  

9.8 The Customer’s remedies in respect of any claim in relation to the goods howsoever arising (whether or not involving negligence on  the part of the Company) shall in all cases be limited to rectification of the goods or the return thereof or an allowanced of the purchase  price as aforesaid and the Company shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses  or other liabilities, whether direct or consequential and any other remedy which would otherwise be available in law is hereby excluded  except to the extent that such exclusion is prohibited by any rule of law.  

10. WARRANTY LIMIT OF RESPONSIBILITY; SERVICES AND CUSTOMERS MATERIALS  

Hirework and work involving the use of Customer’s materials and other services are undertaken by the Company on the express  understanding that the Company cannot be responsible for any distortion, faults or defects which appear or develop during or are  caused to the Customer’s goods or materials by the work howsoever arising even if resulting from any fault, negligence or mistake of  the Company. The Company gives no guarantee or warranty of any kind in relation of hirework on the Customers goods or materials or  other services but subject to the availability of capacity and facilities, it will endeavor to correct any such distortions, faults or defects or  carry out other requisite remedial work or services at the Customer’s expense and risk. The Company shall not in any circumstances be  liable for any damages, compensation, costs, expenses, losses or other liabilities whether direct or consequential, and any other remedy  which would otherwise be available in law, is hereby excluded except to the extent that such exclusion is prohibited by law.  

11. FOUNDATIONS ETC  

Irrespective of whether the contract provides for the Company to install any goods or equipment in any building or premises, the  Customer is solely responsible for the suitability of the site for the installation of the goods or equipment, for obtaining all necessary  consents and approvals under planning and building regulation and bye-laws and for the preparation of the site, the construction of  foundations and the provision of services so that the site is suitable to receive the goods or equipment. The Company will if requested  provide drawings and specifications showing the site requirements for the goods or equipment based on normal requirements in a  suitable location but does not hereby warrant that the site as prepared by the Customer will be suitable or satisfactorily prepared. 

12. INSTALLATION ETC  

Unless the contract expressly provides the Company shall not be responsible for the installation, erection or commissioning of the goods  or the supervision thereof.  

13. TESTING  

The Company shall only be obliged to carry out tests which are specified in the contract, and reasonable tolerances shall be accepted by  the Customer who shall not be entitled to reject any goods on the ground that they are not precisely as specified. Tests and inspections  shall take place under the Company’s standard testing arrangements. Any additional testing which the Company expressly agrees to carry  out for the Customer shall be charged extra to the Customer and shall be undertaken subject to these conditions.  

14. DRAWINGS AND INFORMATION  

14.1 The Company is entitled to assume that all drawings, descriptions, specifications and other information supplied by the Customer to the  Company, whether written or verbal, is in all respects complete, accurate and entirely suitable for the Customer’s requirements.  14.2 Unless otherwise expressly agreed, the Company shall have no responsibility for the performance, suitability or durability of any goods  or any materials or workmanship comprised therein to the extent that the same is manufactured in accordance with the Customer’s designs,  drawings, standards or specification.  

14.3 Unless the contract expressly provides for the installation of the goods, the Company shall not be responsible for installation work or  the supervision thereof.  

14.4 Any extra work, requirement or modification (including but not limited to foundation work) in relation to the goods or their installation  which is not expressly specified in the contract or which is expressly excluded by these conditions and which the Customer requests shall  be charged extra (including an appropriate allowance for profit) to the extent that such extra work, requirement or modification increases the  cost to the Company of performance of the contract.  

15. MODIFICATIONS ETC.  

Any extra work, requirement or modifications (including but not limited to foundation work) in relation to the goods or their installation which  is not expressly specified in the contract or which is expressly excluded by these conditions and which the Customer requests shall, if the  Company is able and willing to agree thereto, be charged extra (including an appropriate allowance for profit) to the extent that such extra  work, requirement or modification increases the cost to the Company of performance of the contract, and the Company shall be allowed a  reasonable extension or postponement of performance or delivery dates required to comply with any such request.  

16. CONFIDENTIALITY: PATENTS ETC  

16.1 Any drawings specifications or other technical information supplied to the Customer by the Company in connection with the contract  are provided on the express understanding that the Customer will not give, loan, exhibit or sell such drawings, specifications or technical  information to any third party and that the Customer will not use them in any way except in connection with the goods or services provided  hereunder. The copyright in all documents provided by the Company will remain vested in the Company.  

16.2 The Customer shall indemnify the Company against all actions, costs, (including the cost of defending any legal proceedings), claims,  proceedings, accounts and damages in respect of any infringement or alleged infringement of any patent, registered design, copyright, trade  mark or other industrial or intellectual property rights resulting from compliance by the Company with the Customer’s specific requirements,  designs or specifications.  

16.3 The Company shall indemnify the Customer against all actions, costs (including the cost of defending any legal proceedings), claims,  proceedings, accounts and damages in respect of any infringement or alleged infringement of any patent, registered design, copyright, trade  mark or other industrial or intellectual property rights resulting from use or sale by the Customer of any goods designed by the Company,  except where paragraph (2) of this condition applies.  

17. LOSS OR DAMAGE IN TRANSIT  

The risk in the goods passes to the Customer when the goods are despatched from the Company’s works or loaded onto the Customer’s  transport or carrier (if appropriate), and the Company accepts no responsibility for any damage, shortage or loss in transit. Claims for any  damage, shortage or loss in transit should be made on the carrier, and any conditions imposed by the carrier in relation to claims for  damage shortage or loss in transit should be complied with.  

18. PACKING  

18.1 Unless otherwise specified, packing cases and packing materials will be charged extra, but where stated to be returnable, will be  credited in full on return to the Company’s works carriage paid in good condition within one month of receipt by the Customer.  18.2 The Company uses its best endeavors to ensure, where necessary, suitability of packing before despatch, but the Company will not  accept any claim for breakage or damage in transit on the ground of alleged unsuitability of packing.  

19. SUB-CONTRACTING  

The Company reserves the right to sub-contract the whole or any part of the contract.  

20. APPLICABLE LAW  

The contract shall in all respects be governed by and construed in accordance with English law and the Customer hereby submits to the  non-exclusive jurisdiction of the English Courts.  

21. SOLICITATION  

Neither party will, without the consent of the other party, either during or within 12 months after the termination of this contract  and any extensions thereon, engage, employ, or otherwise solicit to employ, or contract work to, any person who during that  period was an employee of the other party, or a subcontractor or an employee of a subcontractor of the other party.  

In the event that either party does hire or otherwise engage an employee of the other party, then the hiring party shall pay to the  other party an employee placement fee equal to seventy five percent (75%) of the hired employee’s annual base salary being  paid by the other party at the time the employee’s employment with the other party terminates or £30,000 whichever is the higher.  The employee placement fee shall be immediately due and payable upon the occurrence of the hiring event.