1 INTERPRETATION

1.1 In these Conditions the following words have the following meanings:

Word Meaning

"the Buyer" the person(s), firm or company who purchases the Goods from the Company;
"the Company" Comtech Holdings Limited, Comtech House, 28 Manchester Road, Westhoughton, BL5 3GJ, England
"Contract" any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these conditions;
"Delivery Point" the place where delivery of the Goods is to take place under condition 4 as specified in the Buyer's order, unless otherwise agreed in writing;
"Firmware" the controlling software for any particular item of Goods
"Goods" any goods agreed in the Contract to be supplied to the Buyer by the Company (including without limitation any software and or Firmware, and any part or parts of them).
"Intellectual Property" such copyright, design rights, domain names, database rights, semi-conductor topographical rights, patents, trade marks, service marks, registered designs or any applications thereof, and all other intellectual or industrial property rights of a similar nature as the Company may have in any of the Goods, including rights of ownership or licensee rights granted to the Company by any owner of Intellectual Property
"Working Day" any day from Monday to Friday upon which the Company is open for business, excluding weekends and any statutory or bank holidays in England.

1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.

1.3 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.

1.4 In these Conditions headings will not affect the construction of these Conditions.

2 APPLICATION OF TERMS

2.1 Subject to any variation under condition 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).

2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.

2.3 These Conditions apply to all the Company's sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a Director of the Company.

2.4 No quotation made by the Company shall constitute an offer.

2.5 Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.

2.6 No order placed by the Buyer shall be deemed to be accepted by the Company until earlier of issue of a written acknowledgement of order or when the Company delivers the Goods to the Buyer.

2.7 The Buyer must ensure that the terms of its order are in writing on the Buyer's official order form and are complete and accurate.

2.8 For certain Goods whose details are available from the Company from time to time, the Buyer shall place all orders at least 12 weeks before the Buyer's desired date for delivery, unless otherwise agreed in writing between the Buyer and the Company.

2.9 No variation to an order will be accepted by the Company unless it is complies with and is submitted in accordance with the provisions of condition 3.

2.10 Any quotation is given on the basis that no contract will come into existence until the earlier of issue of a written acknowledgement of order or when the Company delivers the Goods to the Buyer. Any quotation is valid for the period marked on the quotation, provided that the Company has not previously withdrawn it. Any quotation may be withdrawn or revised by the Company at any time prior to delivery of the Goods.

3 VARIATION OF ORDERS

3.1 The Buyer may vary any order in writing it has placed for Goods which has not yet been accepted by the Company without penalty.

3.2 The Buyer may vary any order in writing it has placed for Goods which has been accepted by the Company, without penalty, to:

3.2.1 Delay delivery, where at least 60 days notice in writing is given to the Company before the target delivery date set out in the order; or
3.2.2 Cancel the order, where at least 90 days notice in writing is given to the Company before the target delivery date set out in the order.
3.3 The Buyer may only vary any given order under condition 3.1 once, and shall not be permitted any further variations.

4 DESCRIPTION & USE

4.1 The description of the Goods shall be as set out in the order accepted by the Company.

4.2 All drawings, descriptive matter, general specifications, performance figures, and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the Contract.

4.3 Any oral representations made by the Company's employees in connection with the Goods or their performance are for the sole purpose of giving an approximate idea of the Goods, and shall not form part of the Contract.

4.4 No representations made in connection with the Goods shall be binding on the company unless made in writing and signed by a Director of the Company.

4.5 It is the Buyer's responsibility to ensure that its own installation arrangements for the Goods are correct and appropriate and the Company shall not be liable for any advice given in connection with such fitting unless made in writing and signed by a Director of the Company.

4.6 The Buyer shall not use the Goods for, or permit the Goods to be used for, any life dependant or medical application as they are not fault tolerant and are not designed, manufactured or intended for use as online control equipment in hazardous environments requiring fail-safe performance, including but not limited to the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines or other medical equipment, or weapons systems, in which the failure of the Goods could directly lead to death, personal injury or severe physical or environmental damage.

5 DELIVERY

5.1 Unless otherwise agreed in writing by the Company the Delivery Point shall be at the Company's place of business.

5.2 Delivery shall take place at the Delivery Point.

5.3 The Buyer shall arrange its own freight or carriage and insurance during transit for the Goods from the Delivery Point to the Buyer's premises.

5.4 The Buyer shall provide at its own expense at the Delivery Point adequate and appropriate equipment and manual labour for the loading or unloading the Goods, and upon taking delivery of the Goods will load them onto or unload them from any transport which bears or is to bear the Goods without delay.

5.5 Where the Buyer so requests, the Company may organise freight or carriage and insurance during transit for the Goods under condition 5.3 or equipment and labour for the unloading or loading of the Goods under condition 5.4 on the Buyer's behalf, but shall do so at the Buyer's cost and risk, and shall not be liable for any losses which arise from doing so.

5.6 The Company's written acknowledgement of the Buyer's order, or in the absence of such acknowledgement, the Buyer's written order will contain a target date for delivery during which the Company will use reasonable endeavours to deliver the Goods.

5.7 Any dates for delivery of the Goods, specified in accordance with condition 5.6, are intended to be an estimate only and time for delivery is not of the essence and shall not be made of the essence by notice. However, wherever the Company cannot deliver the Goods by the target date, it shall do so within a reasonable time (where a reasonable time shall be determined by the Company's normal lead time for the sourcing, manufacture and distribution of the Goods in question at that time).

5.8 Subject to the other provisions of these Conditions the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company's negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 20 Working Days.

5.9 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:

5.9.1 risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company's negligence);
5.9.2 the Goods will be deemed for the purposes of the Contract to have been delivered; and
5.9.3 the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance). If the Buyer does not take delivery of the Goods within 30 days of the date of deemed delivery, the Company may sell the Goods at the market rate and the Buyer shall pay any shortfall between the proceeds of such sale less all related costs and expenses made and the order price of the Goods.

5.10 Where the Company is to deliver the Goods in instalments, each such instalment shall be deemed to be the subject of a separate Contract and no damage, non delivery, or shortage in relation to any such instalment shall entitle the Buyer to any remedies in relation to any other instalment or Contract.

5.11 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.

5.12 Any liability of the Company for delivery of the wrong quantity of Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.

6 RISK/TITLE

6.1 The Goods are at the risk of the Buyer from the time of delivery.

6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:

6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Company from the Buyer on any account

6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:

6.3.1 hold the Goods on a fiduciary basis as the Company's bailee;
6.3.2 prior to fitting, store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company's property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in good condition insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
6.3.5 hold the proceeds of the insurance referred to in condition 6.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:

6.4.1 any sale shall be effected in the ordinary course of the Buyer's business at full market value; and the Buyer shall hold such part of the proceeds of sale as represent the amount owed by the Buyer to the Company on behalf of the Company and the Buyer shall account to the Company accordingly;
6.4.2 any such sale shall be a sale of the Company's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale.
6.4.3 The Buyer shall hold the proceeds of sale referred to in condition 6.4.1on trust for the Company and shall not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

6.5 The Buyer's right to possession of the Goods shall terminate immediately if:

6.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
6.5.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe/perform any of its obligations under the contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
6.5.3 the Buyer encumbers or in any way charges any of the Goods.

6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.

6.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.

7 PRICE

7.1 Unless otherwise agreed by the Company in writing the price of the Goods shall be the price in the Company's acknowledgement of order, or in the absence of such written acknowledgement of order, the prevailing price shown on the Company's standard price list on the date of order.

7.2 The price for the Goods shall be exclusive of all taxes (including any value added tax) which the Buyer will pay in addition to the price when it is due to pay for the Goods.

8 PAYMENT

8.1 Following delivery of the Goods, the Company shall issue an invoice for the price of the Goods, and for any costs incurred under condition 5.5 in respect of such Goods.

8.2 Payment of the price for the Goods is due within 30 days of the date of invoice in immediately available cleared funds.

8.3 Time for payment shall be of the essence.

8.4 No payment shall be deemed to have been received until the Company has received cleared funds.

8.5 All payments payable to the Company under the Contract shall become due immediately upon termination of the Contract despite any other provision.

8.6 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, retention, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.

8.7 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of the Royal Bank of Scotland, accruing on a daily basis until payment is made, whether before or after any judgement.

9 WARRANTY

9.1 Where the Company is not the manufacturer of the Goods, the Company will use its reasonable endeavours to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.

9.2 Where the Company is the manufacturer of the Goods, the Company warrants that (subject to the other provisions of these Conditions) upon delivery, and for a period of 12 months from the date of delivery, the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1994.

9.3 As the Buyer is an expert in the particular field of technology in which it wants to use the Goods, because of the wide range of possible applications of the Goods by the Buyer which are not known to the Company on sale, or where the Buyer uses the Goods in a high risk application which breaches condition 4.6, the Company excludes to the fullest extent permitted by statute any warranty in respect of the fitness for purpose of the Goods. It is the Buyer's responsibility to ensure that the Goods are suitable for the Buyer's intended use and the Company shall not be liable for any advice given in connection with such suitability unless made in writing and signed by a Director of the Company.

9.4 The Company shall not be liable for a breach of any of the warranties in condition 9.2 unless:

9.4.1 the Buyer gives written notice of the defect to the Company, within 30 days of the time when the Buyer discovers or ought to have discovered the defect; and
9.4.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the company's place of business at the Buyer's cost for the examination to take place there.

9.5 The Company shall not be liable for a breach of any of the warranties in condition 9.2 if:

9.5.1 the Buyer makes any further use of such Goods after giving such notice; or
9.5.2 the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
9.5.3 the Buyer alters or repairs such Goods in any way without the prior written consent of the Company.

9.6 Subject to conditions 9.4, 9.5, and 9.8 if any of the Goods do not conform with any of the warranties in condition 9.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Buyer's expense, return the Goods or the part of such Goods which is defective to the Company. Where such Goods are in actual fact defective, the company shall refund the Customer's reasonable carriage costs under this condition 9.6.

9.7 If the company complies with condition 9.6 it shall have no further liability for a breach of any of the warranties in condition 9.2 in respect of such Goods.

9.8 The Buyer shall obtain a return material authorisation number ("RMA Number") from the Company (which shall not be unreasonably delayed or witheld) before returning any Goods under condition 9.6, and shall quote the RMA Number in all correspondence sent with and relating to such Goods.

9.9 Any Goods replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 12 month period.

9.10 Notwithstanding the other provisions of this condition 9 the Company, whilst it shall take reasonable steps to check the Goods are free from viruses or similar man-made or introduced programs or bugs (together 'Viruses'), does not warrant the Goods shall be free from Viruses and the Buyer shall be solely responsible for performing Virus checks of the Goods.

10 LIMITATION OF LIABILITY

10.1 The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:

10.1.1 any breach of these Conditions; and
10.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

10.2 Neither party excludes or limits liability to the other party for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation nor where liability cannot be excluded or limited as a matter of law (e.g. breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 (as amended) or Section 2 of the Supply of Goods and Services Act 1982).

10.3 Subject to the provisions of conditions 4.4, 4.6, 9 and 10.2 above, all representations, warranties, and conditions whether implied by statute or otherwise are excluded from the Contract. In the case of representations, warranties, conditions implied by statute these are excluded to the fullest extent permitted by law.

THE BUYER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 10.4

10.4 Subject to conditions 10.2 and 10.3 above;

10.4.1 the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the greater of the price of the Goods under the order which has given rise to the claim or the amount that the Company may reasonably recover from its insurers under any policy of insurance; and
10.4.2 the Company shall not be liable to the Buyer for:
- (a) any indirect or consequential loss or damage
- (b) any loss of profit, loss of business, depletion of good-will or otherwise,
- (c) any costs, expenses or other claims for consequential compensation
whatsoever and howsoever caused which arises out of or in connection with the Contract; and

10.4.3 the Company shall not be liable for any losses of whatsoever nature which result from the Buyer breaching condition 4.6.

11 INTELLECTUAL PROPERTY

11.1 The Buyer acknowledges that to the extent that the Company has rights to the Intellectual Property used on or in relation to the Goods, such rights and the Company's business and the goodwill connected with them are the Company's property.

11.2 For the avoidance of doubt, the Company does not assign any Intellectual Property in the Goods to the Buyer under the Contract.

11.3 The Company, in so far as it is the owner of or is permitted to sub-licence the Intellectual Property, grants the Buyer a non-exclusive licence to use the Intellectual Property subject to the provisions of the Contract.

11.4 The Buyer:

11.4.1 is only permitted to use the Intellectual Property for the purposes of the Contract and only as authorised by the Company in advance in writing;
11.4.2 other than to the extent referred to in condition 11.4.1 above, it has and will have no right to use or to allow others to use the Intellectual Property or any part of it. The Buyer shall not seek to register any Intellectual Property on behalf of the Company, or use the Intellectual property for any illegal purpose;
11.4.3 will not use any trade mark or trade names or get-up which resemble the Company's trade marks or trade names or get-up and which would therefore be likely to confuse or to mislead the public or any section of the public;
11.4.4 will not remove, alter or otherwise tamper with any trade marks, trade names, logos, numbers or other means of identification on the Goods or the packaging therefor which come into the Buyer's possession custody or control from the Company or a Distributor of the Company, whether any such trade marks, trade names, logos, numbers or other means of identification are the property of the Company or a third party, and will not place any trade mark or trade name of its own upon the Goods or upon any packaging or other materials used in connection with the Goods without obtaining prior consent in writing from the Company;
11.4.5 will not do or omit to do or authorise any third party to do or to omit to do anything which could diminish, invalidate or be inconsistent with the Intellectual Property.

11.5 The Buyer shall be liable for and shall indemnify the Company in full against any and all liabilities, losses, damages, costs (including any legal, professional and any other costs of whatever nature), and expenses suffered by the Company, whether direct or consequential (including but without limitation any economic loss and loss of profits, business or goodwill) arising out of any breach by the Buyer of any of the provisions of this condition 11, or arising as a result of actions or omissions of any of its officers, employees, agents or other parties acting on its behalf or in concert with it.

12 ASSIGNMENT

The Buyer shall not be entitled to assign, novate or otherwise transfer the Contract or any part of it without the prior written consent of the Company.

13 FORCE MAJEURE

13.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company (an Event of Force Majeure) including not limited to, for the avoidance of doubt:

13.1.1 acts of God, fire, explosion, flood, epidemic;
13.1.2 governmental actions, war or national emergency, terrorism, riot, civil commotion;
13.1.3 lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce);
13.1.4 restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials;
Provided that, if the event in question continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.

13.2 During an Event of Force Majeure, the Company may perform its obligations through a sub-contractor, however if after 20 Working Days performance can still not be made, the Buyer shall be entitled to the extent necessary given the nature of the Event of Force Majeure, to obtain such of the Goods as it requires during the Event of Force Majeure from any third party during such period that the Event of Force Majeure continues. As soon as the Event of Force Majeure has ceased, the Buyer shall purchase from the Company the balance of the Goods under the Contract that have not been sourced from a third party under this condition 12.2.

14 TERMINATION

14.1 The Company may, without prejudice to any of its other rights, stop any Goods in transit and/or suspend further deliveries of Goods or by notice in writing to the Buyer, and determine any Order or Contract if:

14.1.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
14.1.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against him/it, or fails to observe/perform any of its obligations under the contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
14.1.3 the Buyer encumbers or in any way charges any of the Goods; or
14.1.4 the Buyer takes or suffers analogous action or proceedings or becomes insolvent under foreign law; or
14.1.5 the Buyer commits any material breach of Contract between the Company and the Buyer; or
14.1.6 the Buyer fails to pay any sum due on the due date or in any other manner.

14.2 Conditions 4.5, 4.6, 9, 10 and 11 shall survive termination of the Contract.

15 GENERAL

15.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.

15.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

15.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.

15.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.

15.5 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

16 THIRD PARTY RIGHTS

16.1 A person who is not a party to the Contract has no right under the Contracts (Right of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.