General Terms and Conditions of Sale

1.         Definitions and Interpretation

a.         In these terms and conditions of sale, the following expressions shall have the following meanings:

The ‘Company’ shall mean FT Gas Control Systems Ltd.

The ‘Conditions’ shall mean the terms and conditions of sale set out in this document.

The ‘Contract’ shall mean the contract between the Company and the Customer for sale of the Goods by the Company to the Customer in accordance with these Conditions.

The ‘Customer’ shall mean the purchaser who purchases the Goods from the Company as set out in the Order.

The ‘Delivery Location’ shall mean the address set out in the Order or such other location as the parties may agree.

A ‘Force Majeure Event’ shall have the meaning given in clause 10(b).

The ‘Goods’ shall mean the goods (or any part of them) set out in the Order.

The ‘Order’ shall mean the Customer’s order for the Goods as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Company’s quotation, or overleaf, as the case may be.

b.         Clause headings shall not affect the interpretation of these Conditions.

c.         A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

d.         Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

e.         A reference to writing or written includes faxes and emails.

2.         Basis of contract and priority of terms

a.         The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.

b.         The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.

c.         These conditions shall apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing

d.           No modifications or amendment of these Conditions shall be binding upon the Company unless agreed to in writing and signed by a duly authorised signatory on behalf of the Company.

e.         Any advertising materials, samples, drawings, descriptions or illustrations contained in publications or submitted by the Company are produced for the sole purpose of giving an approximate idea of the Goods referred to in them and do not form part of the Contract nor have any contractual force.

f.          A quotation for the Goods given by the Company shall not constitute an offer. A quotation shall only be valid for a period of [20] working days from its date of issue.

3.         Goods

a.         The Goods are described in the specification agreed by the parties in writing.

b.         The Company reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.

4.         Price

a.         The price of the Goods shall be as set out in the Order or, if no price is quoted, as set out in the Company’s published price list in force as at the date of delivery.

b.         All prices for goods will be issued in pounds sterling unless otherwise agreed within the company and approved by the accounts department. All quotations and prices are exclusive of Value Added Tax which is payable by the Customer in addition to the price of the Goods on the receipt of a valid Value Added Tax invoice.

c.         Whilst every effort will be made to keep the price of Goods stable, the company reserves the right to alter prices at any time prior to delivery by giving notice to the Customer [that is due to:

i.          any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

ii.          any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

iii.         any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions].

5.         Payments

a.         The Company may invoice the Customer for the Goods on or any time after the Contract comes into existence.

b.         Unless otherwise agreed in an Order, the Customer shall pay the invoice in full and in clear funds by no later than the end of the month the invoice was dated. Payment shall be made to the bank account nominated in writing by the Company.

c.         Cheque payments shall not be deemed to have been made until the cheque amount clears in the company’s bank account.

d.         If the customer fails to comply with its payment obligations under the Contract, without prejudice to any other right or remedy the Company may have:

e.         the Company may withhold despatch of any part of the remaining Goods to be supplied under the Contract, suspend its performance of any other contract between it and the Customer until the Customer has made payment under this Contract in full, or require the Customer to pay for any part of the remaining Goods to be supplied under the Contract prior to their despatch from the Company’s premises; and

f.          the Customer shall pay interest on the overdue amount at the rate of [4]% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

g.         The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.

h.         New customers without an account will apply to FT Pipeline and will be credit checked with the appropriate body. All first orders will be paid on a PRO-FORMA basis and subsequent orders on account subject to the returned credit report.

6.         Ownership/Risk

a.         Legal ownership of the Goods shall remain with the Company until the Company receives full payment for the Goods and/or other charges arising under the Contract, at which point the title in the Goods shall pass to the Customer. The risk as to loss or damage of the said Goods shall, however, pass to the customer upon delivery thereof.

b.         If returning the Goods in accordance with these Conditions the risk as to loss or damage of the Goods shall remain with the Customer until the Company receives the Goods.

c.         If any payment in the respect of said Goods remains outstanding, the Company may at any time require the said Goods to be returned to the Company and, if the Customer fails to do so promptly, the Company may enter any premises of the Customer of any third party where the Goods are stored in order to recover them.

d.         Until title to the Goods has passed to the Customer, the Customer shall:

i.          store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;

ii.          not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

iii.         maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

iv.        notify the Company immediately if it becomes subject to any of the events listed in clause 12(a)(iii); and

v.         give the Company such information relating to the Goods as the Company may require from time to time.

7.         Delivery

a.         The Company will use reasonable endeavours to deliver the Goods to the Delivery Location on the date specified for delivery of the Goods in an Order.

b.         Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.

c.         Any dates quoted or set out in an Order for delivery of the Goods are approximate only, and the time of delivery is not of the essence.

d.         If the Customer fails to take delivery of the Goods on the date specified for delivery of the Goods in an Order, then, except where such failure or delay is caused by a Force Majeure Event or the Company’s failure to comply with its obligations under the Contract:

i.          delivery of the Goods shall be deemed to have been completed at 9.00 am on the date specified for delivery of the Goods in an Order; and

ii.          the Company shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

e.         If [5] working days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

f.          The company is entitled to make partial delivery or deliveries of the Goods by instalments, which shall be invoiced and paid for separately. With each delivery, all of the provisions in these Conditions shall apply. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

g.         If the order has been changed after delivery has been made of goods ordered by the customer as per the order submitted to the company, the customer may be liable for delivery costs incurred.

8.         Defective or incorrect Goods

a.         The Customer must inspect the Goods as soon as possible after delivery and may reject any Goods that do not comply with clause 11(a) by giving written notice of rejection to the Company within (in the case of a defect that is apparent on normal visual inspection) 7 working days of receiving the Goods or (in the case of a latent defect) a reasonable time of a latent defect becoming apparent, provided that none of the events listed in clause 8(c) apply.

b.         If such notice is not given in accordance with clause 8(a), the goods shall be deemed to be in all respects in accordance in the contract and free from defect and the customer shall be deemed to have accepted the goods.

c.         The Company shall not be liable for any Good’s failure to comply with the warranty set out in clause 11(a) in any of the following events:

i.          the Customer makes any further use of those Goods after giving notice in accordance with clause 8(a);

ii.          the defect arises because the Customer failed to follow the Company’s oral or written instructions for the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

iii.         the defect arises as a result of the Company following any drawing, design or specification supplied by the Customer;

iv.        the Customer alters or repairs those Goods without the written consent of the Company;

v.         the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

vi.        the Goods differ from their description or any specification agreed by the parties in writing as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

d.         Subject to clause 8(c), if the Customer gives notice in writing to the Company during the warranty period in accordance with clause 8(a) that the Goods do not comply with the warranty set out in clause 11(a), the Company will incur any subsequent delivery costs, and on the request of the customer:

i.          repair or replace the defective Goods; or

ii.          (if the Company fails to comply with clause 8.(d)(i)), provide a full refund to the Customer in respect of the defective Goods,

provided that the Company has been given a reasonable opportunity to examine the Goods and agrees that the goods do not comply with the warranty set out in clause 11(a).

e.         Except as provided in this clause 8, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 11(a).

9.         Import & Export

a.         For Goods supplied by the Company from outside the United Kingdom, the prices for the Goods are inclusive of import charges imposed by the UK customs authority.

b.         For Goods supplied to a Delivery Location that is outside the United Kingdom, the prices for the Goods are exclusive of, and the customer shall be responsible, at its own expense, for any import charges imposed by the customs authority of the country or territory to which the goods are to be delivered.

10.       Performance

a.         If having used its reasonable endeavours to comply with any date or dates specified in the Order for delivery of Goods to the Customer the Company is unable to do so, such failure shall not constitute a breach of the Contract by the Company entitling the Customer to refuse to take delivery of the Goods, to terminate the Contract or to claim damages against the Company.

b.         The Company shall not be liable to the Customer by reason of any failure or delay in performing the supply of goods due to the Customer’s failure to failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or any cause beyond the Company’s reasonable control, including (without limitation), act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, civil disturbance or requisition of any kind on the part of any governmental authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes involving a third party, difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery (‘Force Majeure Event’).

11.       Guarantee

a.         The Company warrants that on delivery, and for a period of 3 months from the date of delivery (warranty period),  the Goods shall:

i.          conform in all material respects with their description and any applicable specification agreed by the parties in writing; and

ii.          be free from material defects in material and workmanship.

b.         Notwithstanding any other provision in these Conditions, he Customer acknowledges and agrees that the Company is not a designer and shall not be liable for any defects in the design of the Goods. The Company shall use its reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to the Company in relation to defects in the design of Goods.

c.         The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

d.         To the extent the goods are to be supplied in accordance with drawings, specification or other data supplied by the Customer, the Customer shall indemnify the Company against all liabilities, costs, expenses, damages and suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of such drawings, specification or other data.

e.         If at the request of a Customer a certificate of conformity is provided the issue thereof shall not operate to confer upon the Customer any rights or remedies against the Company in respect of the Goods which the Customer would not have had in the absence of any such certificate.

12.       Breach of contract by or insolvency of the Customer

a.         Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Customer if:

i.          the Customer fails to pay any undisputed amount due under the Contract on the due date for payment and remains in default not less than [14] days after being notified in writing to make such payment;

ii.          the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within [14] days of that party being notified in writing to do so;

iii.         the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

iv.        the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

v.         the Customer’s financial position deteriorates to such an extent that in the Company’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

b.         Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Customer and the Company if the Customer becomes subject to any of the events listed in clause 12(a), or the Company reasonably believes that the Customer is about to become subject to any of them.

c.         On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest.

d.         Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.

e.         Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

13.       Limitation of Liability

a.         Nothing in these Conditions shall limit or exclude the Company’s liability for:

i.          death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

ii.          fraud or fraudulent misrepresentation; or

iii.         any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

b.         Subject to clause 13(a):

i.          the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

ii.          the Company’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed [the price of the Goods].

14.       General

a.         Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except that each party may disclose the other party’s confidential information:(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.

b.         This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

c.         Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

d.         If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

e.         Any notice given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in this clause; or if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting.

f.          No one other than a party to this Contract shall have any right to enforce any of its terms.

g.         The Contract, and any dispute arising out of or it shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute arising out of this Contract.