Halcyon Drives General Conditions of Sale Addendum to ORGALIME S2000 Rev2 November 2002
1.1. Whenever Halcyon Drives (“Halcyon”) has referred to Orgalime S 2000 in a quotation or other type of offer or in an order acknowledgement, Orgalime S 2000 and this Addendum shall apply to the resulting contract between Halcyon and the Purchaser. If the Purchaser refers to other terms and conditions in the Purchaser’s previous or subsequent communications with Halcyon, such other terms and conditions shall apply only to the extent Halcyon expressly agrees thereto in writing.
1.2. The Purchaser represents that it has access to the Orgalime S 2000 terms and conditions.
1.3. In the event of any contradictions or discrepancies between this Orgalime S 2000 and Addendum, Orgalime S 2000 shall prevail.
In Orgalime S 2000 and this Addendum,
(a) “Orgalime S 2000” shall mean Orgalime’s General Conditions for the Supply of Mechanical, Electrical and Electronic Products, August 2000 edition or the latest edition published thereafter;
(b) “Product” shall include services to be provided by Halcyon in relation to the Product;
(c) “Purchaser” shall mean the other party to the contract; and
(d) “Supplier” shall mean Halcyon.
3.1. STANDARD PRODUCTS
3.1.1. The Product shall be supplied in its standard version together with Halcyon’s relevant standard documentation and instruction manuals as appropriate. Alternative finishes, colours and special packing may be supplied at extra charge, as may additional documentation.
3.2. PAYMENT TERMS
3.2.1. Payment shall be made by the Purchaser no later than thirty (30) days from the date the relevant invoice was issued. Should part of an invoice be disputed by the Purchaser, the Purchaser shall nevertheless pay the undisputed amount on the due payment date. Payment may be made via BACS.
3.2.2. Payment shall be made in the currency in which the purchase price was quoted by Halcyon.
(a) proceedings be commenced to wind up the Purchaser (except for the purpose of solvent amalgamation or reconstruction);
(b) any composition or arrangement with the Purchaser’s creditors be made; or
(c) the Purchaser be put under administration, or if a receiver is appointed,
Halcyon shall be entitled (without incurring any liability therefore) to terminate the contract by notice in writing, and thereupon to recover any loss or damage Halcyon has suffered as a result of such termination, except that the compensation paid towards such loss or damage shall not exceed the purchase price.
The purchase price is strictly net and exclusive of VAT and similar.
3.4. RETENTION OF TITLE
3.4.1. Until title in the Product has passed to the Purchaser, the Purchaser shall keep the Product and any part thereof in the Purchaser’s possession clearly marked or otherwise identified as being Halcyon’s, and store them separately from the Purchaser’s own plant. Halcyon shall be entitled at any time during normal business hours to enter the Purchaser’s premises in order to inspect the Product and ensure that it is so marked or clearly identified.
3.4.2. Should the contract be terminated by Halcyon for any reason before title in the Product has passed to the Purchaser, Halcyon shall be entitled at any time during normal business hours to enter the Purchaser’s premises in order to recover the Product. Halcyon reserves the right to dispose of any Product so recovered.
3.5. EXPORT RESTRICTION AND NON-AUTHORISED USE
3.5.1. Any supply of technology under the contract shall be subject to any laws and other restrictions on the export, re-export or import of any technology licensed under the contract as may be imposed from time to time by the UK or United States Governments or their agencies. The Purchaser shall not knowingly export, re-export or import, directly or indirectly, any such technology licensed from or provided by Halcyon to any country for which the UK or United States Governments or any their agencies require an export licence or other Government approval at the time of such export, without first obtaining such licence or approval. The Purchaser shall require that all third par-ties receiving such technology from the Purchaser comply with this requirement.
3.5.2. Halcyon shall assist the Purchaser in every reasonable way in the investigation and clarification of any possible export or import licence requirements and in the obtaining of such licences at the Purchaser’s cost.
3.5.3. The performance by either of the parties of an obligation under the contract, which performance requires an export or import licence or other government approval, and any other obligation affected shall, to the extent it is necessary, automatically be suspended until such licence or approval as mentioned in sub-clause 3.5.1 is given. If such licence is not granted within a reasonable time or is revoked by the appropriate authorities, Halcyon shall be entitled to terminate the contract, and the Purchaser shall compensate Halcyon for any loss or damage as a result of such termination.
3.5.4. Unless expressly agreed in writing by Halcyon, the Product is provided on strict condition that:
3.5.5. (a) the Product is solely for civil use;
3.5.6. (b) the Product is not to be supplied to any country whether directly or indirectly or for any application where such supply or application is prohibited by any law or regulation binding or effective in that country, in the United Kingdom or the country of manufacture; and
3.5.7. (c) the Product will not in any way be installed, used or applied in or in connexion with the operation of any nu-clear facilities such as but not limited to nuclear power plants, nuclear fuel manufacturing plants, uranium enrichment plants, spent nuclear fuel stores or research reactors.
3.5.8. Whenever Halcyon so requests, the Purchaser shall provide Halcyon with an end-user certificate, which shall be subject to Halcyon’s reasonable approval and signed by the Purchaser’s authorised representative, confirming that the end-user shall comply with sub-clause 3.5.3, items ((a)) - ((c)). Until such time as Halcyon has received such end-user certificate, Halcyon shall be entitled to suspend the performance under the contract.
3.5.9. The end-user certificate referred to in sub-clause 3.5.4 shall form part of the contract and any breach by the Purchaser or any for whom the Purchaser is liable (which shall, without limitation, include the end-user) of any of the provisions set out in sub-clause 3.5.3, items ((a)) - ((c)), shall be deemed a fundamental breach of contract by the Purchaser, and shall entitle Halcyon to terminate the contract forthwith by giving notice to the Purchaser.
3.5.10. In the event of such termination as is mentioned in sub-clause 3.5.5, the Purchaser shall compensate (limited to the value of the contract) Halcyon for any damage and losses sustained as a result of the breach.
3.6. LIMITATION OF LIABILITY
3.6.1. To the maximum extent permitted by applicable law, and notwithstanding anything to the contrary in the contract or otherwise, neither party shall be liable to the other for any indirect, special, incidental or consequential damages such as, but not limited to, loss of revenue, loss of business, loss of use, interruption of business, loss of operation time, costs of capital and cost in connexion with interruption of operation.
3.6.2. To the maximum extent permitted by applicable law, halcyon limits its aggregate liability under the contract for direct damage to an amount equivalent to the price.
3.6.3. The Purchaser acknowledges that the contents of sub-clauses 3.6.1 and 3.6.2 have especially been brought to the Purchaser’s attention, and that said sub-clauses have been duly negotiated between the parties.
If Products are to be manufactured or any process is to be applied to Products by Halcyon in accordance with a specification submitted by the Purchaser, the Purchaser shall indemnify Halcyon against all losses, damages, costs, expenses and claims suffered or incurred by halcyon in connexion with infringement of any intellectual property rights of any third party resulting from Halcyon’s use of the Purchaser’s specification.
3.8. LIMITATION PERIOD
Subject to law as regards personal injury and death, the Purchaser shall have no claim against Halcyon, in contract or in tort, in relation to anything performed or delivered under the Contract (including claims for defective Products, services or goods), unless Halcyon has been notified in writing of such claim within twenty-four (24) months of delivery.
3.9. EXCLUSION OF THIRD PARTY RIGHTS
Pursuant to section 1(2)(a) of the contracts (Right of Third Parties) Act 1999 (the “Act”), the parties intend that no terms of the contract may be enforced by a Third Party (as the term “Third Party” is defined in the Act).
3.10. GOVERNING LAW
The contract shall in all respects be governed by and construed in accordance with English substantive law. The parties agree that the United Nations Convention on contracts for the International Sale of Goods shall not apply to the contract (even if the United Kingdom or any part thereof should accede to the said convention).
The contract constitutes the complete and full understanding between the parties thereto with respect to the subject matter of the contract and supersedes all previous negotiations, representations, agreements, commitments and writing in respect thereof. Neither party shall be bound by any terms conditions, definitions, warranties, under-standings or representations with respect to such subject matter other than as expressly provided in the contract or as duly set forth on or subsequent to the effective date thereof in writing.