Terms and Conditions

CONDITIONS OF CONTRACT

(1) DEFINITIONS:

“The Company” shall mean Havelock Europa Plc either trading in its own name or through such of its trading divisions as shall be identified on the face of the Contract.

“The Buyer” shall mean the Person Firm or Company to whom the Contract shall be addressed by the Company for the sale and/or supply of goods and services identified therein by the Company.

“The Goods” shall mean the equipment materials and the like more particularly described in the Contract between the Company and the Buyer to be supplied and/or sold by the Company to the Buyer.

“The Services” shall mean the work to be undertaken by the Company for the Buyer more particularly described in the Contract between the Company and the Buyer.

“The Contract” shall mean the Contract between the Company and the Buyer for the sale and/or supply of goods and services by the Company to the Buyer incorporating these Conditions of Contract (including any revisions or amendments thereto) which shall be annexed to the form part of the said Contract.

“The Estimate” shall mean any tender quotation or estimate issued by the Company to the Buyer.

(2) TERMS AND CONDITIONS OF CONTRACT:

Should there be any conflict or variance between these Terms and Conditions and any Conditions put forward on behalf of the Buyer then the Company’s Terms and Conditions shall prevail. Any Terms or Conditions which the Buyer seeks to impose will be inapplicable unless expressly accepted in writing by the Company and incorporated into the Contract or any revisions or amendments thereto.

(3) PRICE:

The price for the goods and services shall be the price identified in the Contract subject to the following terms and provisions:-

a) Should there be any increase in the price and costs of raw materials labour and overhead expenses that were taken account of by the Company in submitting a price set out in either the Estimate or any Order Acknowledgement Form signed by the Company then the Company reserves the right to increase the price upon giving written notice of such increase to the Buyer at any time before completion of the Contract.

b) Provided however that if the words “Fixed Price” appear in relation to the price quoted in any Estimate signed by the Company the said price shall remain fixed only for the supply of the said goods and/or services which form part of the original Contract.

c) If the Company and the Buyer agree any variation to the Contract whereby additional work is to be undertaken by the Company then the Company shall reserve the right (whether or not the Estimate or Order Acknowledgement Form contain the words “Fixed Price”) to reflect any increase in price and costs of raw material labour and overhead expenses that may have taken place since the commencement of the original Contract works in the price for such additional work.

d) Any variation by the Buyer in the design quantification and specification of the work pursuant to the Contract and/or any suspension of work following any instruction by the Buyer shall allow the Company to increase its price to reflect any additional costs the Company may be put to as a result thereof.

(4) In the event that the price in the Contract is identified in currency other than pounds sterling (“a foreign currency”) the Company reserves the right to adjust the price should there be any variance in the exchange rate from the exchange rate prevailing for pound sterling at the date of the Contract.

(5) All prices quoted include delivery and freight charges. Value Added Tax, where applicable, is to be added at the appropriate rate prevailing as per current legislation. The cost to the Company of carrying out any special test examination or inspection requested by the Buyer is not included and would require to be added to the Contract Price.

(6) PAYMENT:

a) Payment in full shall be due immediately upon placing the order. The order cannot be processed until payment has been received in full.

b) In respect of any goods to be delivered or services to be supplied to the Buyer or its nominees at an address overseas then unless otherwise agreed in writing payment of the Contract price shall be paid by the Buyer prior to the despatch of any goods or the provision of any services by means of an irrevocable letter of credit opened with and confirmed by a United Kingdom clearing bank approved by the Company’s bankers or alternatively by such other means as may be agreed in writing between the Company and the Buyer.

c) The Company shall have the right to charge interest which shall accrue on a day to day basis on all monies which at any time may be overdue for payment pursuant to the terms of the Contract at the rate of 4% per month above Bank of Scotland Plc base lending rate from time to time.

(7) CONTRACT DOCUMENTS:

a) The Contract document between the Company and the Buyer shall incorporate:-

(i) The Company’s estimate when accepted in writing by the Buyer.

(ii) The Terms and Conditions contained herein which documents shall together be called “The Contract Documents”.

b) Any variation in the Contract Documents must be recorded in writing and will not be binding on the Company until it is accepted by the Company in writing and included in the Contract documents.

c) In the event of any discrepancy error or ambiguity being identified within any specification or description or goods and services to be supplied pursuant to the Contract then such discrepancy error or ambiguity shall amount to a variation as additional work in terms of Clause 3(c) hereof of the Contract Terms and the Company shall be entitled to charge the Buyer for such variation. The Company shall give to the Buyer seven days’ notice in writing of any variation to the Contract Price thereafter such variation shall be incorporated and be included within the Contract Price and shall be paid pursuant to the terms of the Contract by the Buyer to the Company.

(8) DELAY IN DELIVERY AND COMPLETION:

Any delivery or completion date given by the Company to the Buyer shall be the Company’s approximate “best” business estimate of the date on which the relevant goods will be delivered and/or the services completed by the Company to the Buyer pursuant to the Contract. The Company will make every reasonable endeavour to meet such delivery and completion date but unless otherwise agreed in writing between the Company and the Buyer time shall not be of the essence and there shall be no liability either in Contract negligence or otherwise howsoever upon the Company in respect of any loss or damage (including consequential loss or damage) incurred by the Buyer arising from any delay in delivery of the goods and/or completion of services by the Company.

NOR shall the Buyer be entitled to refuse to accept delivery or to repudiate cancel or determine the Contract as a result of any delay in delivery of the goods and/or completion of the services.

(9) RETENTION OF TITLE:

a) Unless otherwise agreed in writing between the parties the property and title in goods to be supplied pursuant to the Contract shall not pass to the Buyer but shall remain vested in the Company until the whole of the Contract price shall have been paid.

b) The Buyer shall not seek to sell or dispose of any part or any individual consignment of or any delivery of goods supplied by the Company to the Buyer until the whole of the price therefor and all other sums due in respect thereof pursuant to any Contract between the Company and the Buyer shall have been received by the Company.

In the event that the Buyer shall seek to dispose of any such goods before payment in full has been made by the Buyer to the Company, the Buyer undertakes to hold all proceeds of sale of such goods as agent for the Company and the hold such proceeds of sale in a separate account to the order of the Company.

c) If the Buyer commits an act of bankruptcy or insolvency or becomes apparently insolvent or if the Buyer’s estate is sequestrated or a Receiver or Liquidator is appointed to the Buyer or the Buyer seeks to enter into any voluntary arrangement with his creditors, the Company shall be entitled to require the Buyer at the Buyer’s own expense to return to the Company all goods which have been supplied by the Company to the Buyer pursuant to any Contract and for which payment in full has not been tendered and made, and should the Buyer fail to do so the Company is irrevocably authorised by the Buyer without notice to enter any premises in which such goods are situated for the purpose of collecting and removing such goods without liability upon the Company and the Buyer shall be responsible for all the Company’s costs and expenses in connection with such collection and removal.

(10) CONFIDENTIAL INFORMATION

a) Any confidential information supplied or given to the Buyer by the Company for the purpose of this Contract shall remain the absolute property of the Company and shall not be disclosed by the Buyer to any third party or used for its own benefit.

b) Any design specification measurement description illustration drawings dimensions price lists or other industrial or intellectual property supplied by the Company to the Buyer shall remain the absolute property of the Company and shall be returned on request. The Buyer shall indemnify the Company against any claim or claims or liability for breach of third party rights resulting from the supply of any goods hereunder. The Buyer shall not disclose such design materials to any third party and shall not seek to use the design materials for any purpose other than for the goods and/ or services to be supplied by the Company pursuant to the Contract.

(11) INDUSTRIAL PROPERTY RIGHTS:

a) The Buyer hereby warrants to the Company that all designs specifications drawings and other design information supplied by the Buyer to the Company are the property of the Buyer and that the use of such material by the Company shall not infringe any intellectual property rights or other rights of any third party and further the Buyer shall indemnify the Company against any claim which the Company may suffer as a result of the use of the Buyer’s design material.

b) For the purpose of this clause “Industrial Property Rights” shall mean patents, registered design, design rights, registered trade marks and copyright.

c) If requested by the Company at any time the Buyer shall return to the Company all design materials in its control or possession and belonging to the Company and shall not retain any copies of the design materials.

(12) LIABILITY FOR DEFECTS:

a) Where any of the goods supplied by the Company to the Buyer are found by the Buyer within six calendar months after delivery to the defective in material or workmanship or not to conform to the Contract the Buyer shall notify the Company of such defects within 10 days of discovery of such defects or failure to conform and the Company shall either repair such goods free of charge replace such goods or refund to the Buyer the price thereof, but in no circumstances whatsoever subject to any statutory provision from time to time in force shall the liability of the Company in connection of any such goods exceed the cost of the replacement thereof or the price paid or agreed to be paid by the Buyer therefor.

The liability of the Company under this clause is conditional upon the Buyer (i) adhering strictly to the terms of payment provided for in the Contract (ii) bringing the defect in the goods to the attention of the Company within the period of 10 days and (iii) not attempting to repair or allowing anyone not previously approved by the Company to repair any parts of the goods.

There shall be no liability on the part of the Company in terms of this clause for any defects which in the option of the Company occur as a result of:-

(i) misuse of the goods negligence omission or default on the part of any person other than the Company.

(ii) loss or theft of the goods or any part of them

(iii) damage from any cause other than negligence by the Company or the Company’s personnel

and

(iv) unauthorised modification, alteration or repair of any of the goods.

b) Except as provided in Section 2 and Section 6(1) (a) of the Unfair Contract Terms Act 1977 (liability for death or personal injury resulting from breach of duty) the Company accepts no responsibility in any circumstances for any direct, indirect or consequential loss or damage, howsoever arising, which the Buyer may sustain in connection with goods supplied under this Contract.

c) Save as otherwise provided these Conditions of Sale all conditions and warranties express orimplied statutory or otherwise and, except as provided in Section 16 of the Unfair Contract Terms Act 1977 (liability for death or personal injury resulting from breach of duty), all other obligations and liabilities whatsoever of the Company whether in Contract or in tort or otherwise are hereby excluded.

(13) ACCEPTANCE OF DELIVERY:

The Buyer shall accept delivery of goods from the Company within a period of seven calendar days of being notified in writing by the Company that the goods are available for delivery. For the purpose of said notice writing shall include any fax correspondence. If the Buyer shall fail to accept delivery as aforesaid the Company shall be entitled:-

a) To charge interest to the Buyer at the rate of four per cent per annum above the Bank of Scotland Plc base lending rate for the time being on the Contract price and

b) To make a storage charge against the Buyer at a rate equivalent to fifteen per cent per annum calculated on a daily basis on all monies due and payable to the Company by the Buyer pursuant to the terms of the Contract.

(14) DELIVERY AND PASSING OF RISK:

The Company shall deliver any goods to the Buyer at the place specified in the Contract or F.O.B. at such other place in the United Kingdom as the Buyer directs. Risk of loss, damage or destruction of the goods shall pass to the Buyer IMMEDIATELY after the goods leave the Company’s premises.

(15) ACCESS:

The Buyer will ensure that at all times the Company shall have free and unrestricted access to any site in respect of which goods are to be delivered and/or services performed by the Company for the Buyer pursuant to any Contract. Further the Buyer shall ensure that the Company is provided free of charge with the use of all necessary power, water, telephone equipment where appropriate lifts and all other facilities to grant free and uninterrupted access to the site to ensure that the Company can freely and properly discharge and fulfil all its obligations pursuant to the Contract.

The Buyer will further ensure that at all times any site or sites at which the Company is performing contractual works are in a condition whereby the Company can deliver goods or carry out services without any restriction or impediment thereto.

(16) SUSPENSION CANCELLATION OR DETERMINATION OF CONTRACT:

In the event that the Buyer shall fail to make payment to the Company within thirty days of due date of any monies payable under the Contract whether by interim payment or final payment OR shall be declared bankrupt or enter into a voluntary agreement pursuant to the provisions of the Insolvency Act or if the Buyer’s estate is sequestrated or being a body corporate become apparently insolvent or shall have a Receiver provisional Liquidator or Liquidator (other than voluntarily for the purpose of reconstruction or amalgamation) Administrator or a Manager appointed to its affairs, or has any Winding Up Order made against it, the Company then may without prejudice to all other contractual and legal rights or remedies it may have either suspend cancel or determine delivery of further goods or suspend cancel or determine the supply of any further services pursuant to the Contract without any legal liability as a consequence of such suspension cancellation or determination.

Where the Buyer suspends, revises, cancels or determines the Contract, this will result in the following charges becoming due to the Company:

Stage 1* Up to 1 week following Order placement, 33% of the Order value

Stage 2* Up to 2 weeks following Order placement, 66% of the Order value.

Stage 3* Over 2 weeks following Order placement, 100% of the Order value.

*Note: All factored goods will be 100% chargeable from receipt of Order, as the Company is charged by our suppliers.

(17) FORCE MAJEURE:

a) If performance of the Contract shall be delayed by any circumstances or conditions beyond the control of the Company including (but without prejudice to the generality of the foregoing) any war, industrial dispute, strike, lockout, riot, malicious damage, fire, storm, flood, Act of God, accident, non availability or shortage of materials or labour, failure by any sub-contractor or supplier to perform, failure of production equipment, any statute rule, bylaw, order, regulation or requisition made or issued by any government department, local or any other duly constituted authority then the Company shall have the right to suspend further performance of the Contract as until such time as the cause of the delay shall no longer be present.

b) If performance of the Contract by the Company shall be prevented in any such circumstances or conditions beyond the control of the Company, then the Company shall have the right to be discharged from further performance of and liability under the Contract. If the Company exercises such right the Buyer shall thereupon pay all sums due in terms of Contract less a reasonable allowance for such part of the Contract as has not then been performed by the Company.

(18) PARENT COMPANY GUARANTEE

Where the Buyer is not the Parent Company/Ultimate Holding Company, the Buyer will, at the Company’s request provide to the Company a written Parent Company Guarantee guaranteeing the Buyers performance of the Contracts.

(19) ASSIGNATION

The Buyer shall not sub-let or assign the Contract or any part thereof without first obtaining the written consent of the Company.

(20) RULING LAW

a) ACCORDING TO ENGLISH LAW

Except in circumstances where Clause 20(b) applies, the Contract between the Company and the Buyer shall be governed by the construed in all respects in accordance with English Law and the

parties hereby submit to the exclusive jurisdiction of the English Courts.

b) ACCORDING TO SCOTTISH LAW

Where the Goods are delivered in Scotland and/or the Services are carried out in Scotland, the Contract between the Company and the Buyer shall be governed by and construed in all respects in accordance with Scots Law and the parties hereby prorogate the exclusive jurisdiction of the Scottish Courts.