MULTITONE ELECTRONICS PLC

GENERAL CONDITIONS OF SALE

1.    SOLE CONDITIONS

1.1   Unless and to such extent as may be agreed in writing by Multitone, these Conditions are the sole Conditions on which Multitone contract with the Buyer in relation to the provision of the equipment by Multitone to the Buyer to the exclusion of any terms or conditions stipulated by the Buyer or implied by trade custom, practice or course of dealings and of any representations, warranties or communications not expressly incorporated herein.

1.2   Variations to these Conditions shall only be effective if agreed in writing and signed by the parties.

2.    QUOTATIONS AND ORDERS

2.1   A quotation by Multitone does not constitute an offer.  Multitone reserve the right to withdraw or revise a quotation at any time prior to Multitone’s acceptance of the Buyer’s order.

2.2   No order will result in a binding contract of sale unless and until accepted in writing by Multitone.

2.3   Unless otherwise agreed in writing by Multitone, each order when accepted shall constitute a separate contract of sale.

3.    PRICES

3.1   The price accepted in writing by Multitone shall be the contract price (“the Contract Price”).  Unless otherwise stated by Multitone in its quotation or other written document, the Contract Price includes the cost of delivery of the equipment within the United Kingdom by the method selected by Multitone.  Additional costs, charges and expenses incurred by Multitone in accommodating any request by the Buyer for other methods of delivery or for any special form of packaging, insurance or other arrangements not normally provided by Multitone may be charged extra to the Buyer.  For the purpose of these Conditions, additional costs, charges and expenses incurred by Multitone shall include costs, charges and expenses in respect of wasted time, work and materials.

3.2   Multitone’s quotation is based on information and data regarding local conditions supplied by the Buyer to Multitone in writing for the purpose of quoting and in particular but without limitation the Contract Price includes (where appropriate) equipment giving radio coverage only for such area and premises and structures therein as are specifically mentioned in the quotation.  If Multitone encounter any conditions or obstructions not disclosed by the Buyer in writing prior to issue of their quotation, Multitone shall not be obliged to overcome such conditions or obstructions but if they agree to do so all additional costs, charges and expenses thereby incurred (including but not limited to costs, charges and expenses relating to any further or more powerful equipment and additional cabling) will be charged to the Buyer.

3.3   Additional costs, charges and expenses incurred by Multitone as a result of any alteration which Multitone agree to make to quantities, delivery or other dates or periods or as a result of changes in specifications in modifying any of the equipment whether for the purposes of connection to equipment not supplied by Multitone or otherwise, or where the equipment supplied by Multitone includes items manufactured by third parties which the Buyer has requested, in modifying such items so as to render them compatible with other equipment will be charged to the Buyer as will all costs, charges and expenses incurred by Multitone in connection with installation, testing, commissioning and other work performed by Multitone unless Multitone state in writing that such work is included in the Contract Price.

3.4   Multitone may at any time prior to delivery of the equipment:

3.4.1          withdraw any discount from its normal prices;

3.4.2          revise prices to take account of inflation; increases in costs including (without limitation) costs of any goods, materials, carriage, labour or overheads; the increase or imposition of any tax, duty or other levy and any variation in exchange rates.

Unless otherwise specified VAT and any other tax or duty payable by a buyer shall be added to the price.

Unless otherwise agreed the costs of complying with the  Waste Electrical and Electronic Equipment Directive (WEEE) shall be charged to the buyer in the form of a levy which may be varied without notice

4.    TERMS OF   PAYMENT

4.1   That part of the Contract Price referable to Multitone’s charges for the sale and delivery of any item of equipment will be invoiced upon despatch of such item from Multitone’s works.  All other charges will be invoiced upon completion of the relevant work or (as the case may be) upon the relevant costs, charges or expenses being incurred by Multitone.  The foregoing provisions of this Condition shall take effect subject to any other payment schedule specified by Multitone in its quotation or other written document including in particular (but without limitation) a schedule providing for payments to be made with the Buyer’s order and upon the issue by Multitone of invoices at other times prior to delivery of the equipment.

4.2   Payment shall be made in full within 30 days of the date of each invoice (“the due date”) notwithstanding that any delivery, installation or other obligations whatsoever of Multitone remain outstanding.  Time of payment is of the essence to any contract.   Prompt payment in full of Multitone’s invoices is a condition precedent to further performance by Multitone of any contract with the Buyer and (but without prejudice to any other rights or remedies Multitone may have in respect of overdue payments) Multitone reserve the right to suspend all further deliveries in respect of any contract with the Buyer until payment is received in full or cancel the order or subsequent orders insofar as any equipment remains to be delivered thereunder, to charge interest (as well as before any judgement) at the rate of 5 per cent per annum above the base rate from time to time in force of National Westminster Bank PLC in respect of any outstanding indebtedness from the due date to the date when payment is received by Multitone (such interest accruing on a daily basis and being payable without any deductions whatsoever) and to appropriate any payment made by the Buyer to such equipment (or any other equipment supplied to the Buyer under any other contract) as Multitone considers fit notwithstanding any purported appropriation by the Buyer.

4.3   In addition and without prejudice to Condition 4.2, Multitone reserve the right to cease all services of the equipment should there be any outstanding indebtedness on any contract or service.

4.4   If, in the opinion of Multitone, the credit-worthiness of the Buyer deteriorates before delivery of the equipment, Multitone may require full or partial payment of the price prior to delivery or the provision of security for payment by the Buyer in a form acceptable to Multitone.

4.5   Multitone may offset any amount owing to it from the Buyer against any amount owed to the Buyer by Multitone.

5.    DELIVER

5.1   All delivery and other dates or periods are given in good faith but shall be treated as estimates only in respect of which time shall not be of the essence and may not be made of the essence by the service of any notice (unless Multitone has expressly undertaken in writing to guarantee delivery by a specified date) and Multitone shall not be liable for the consequences of any delay whatsoever.

5.2   The Buyer shall at Multitone’s option accept part shipments or delivery of the equipment.

5.3   Multitone shall not be liable for shortage or loss or damage to any equipment unless the equipment is examined on delivery and the Buyer notifies both the carriers and Multitone of such shortage, loss or damage by telephone within 3 days of delivery and confirms the position in writing to both the carriers and Multitone within 7 days of delivery.

5.4   If the Buyer fails to take delivery of the equipment or any items thereof when tendered or delivery of the equipment is delayed for reasons attributable to the Buyer, the Contract Price shall immediately become due and payable in full and Multitone shall be entitled (but without prejudice to any other rights they may have) to charge for any additional storage, carriage and other costs, charges and expenses incurred by Multitone as a result thereof and the equipment will be at the Buyer’s sole risk from the date of commencement of such failure to take delivery or delay, as the case may be.

5.5   In respect of equipment which is installed or commissioned by Multitone, the Actual Completion Date shall be the date stated in the Certificate of Guarantee and Acceptance or equivalent issued by Multitone and in respect of equipment which is not so installed the Actual Completion Date shall be the date of delivery.

5.6   Where the equipment is to be delivered by instalments or schedule deliveries each delivery shall constitute a separate contract and a failure on Multitone’s part to deliver any one or more of the instalments or deliveries shall not entitle the Buyer to refuse to accept delivery of the other instalment(s) or deliveries.

6.    PASSING OF PROPERTY AND RISK

6.1   The risk of loss or damage to any item of equipment shall pass to the Buyer when delivery thereof is made or tendered.

6.2   All equipment shall remain the sole property of Multitone as legal and equitable owner until Multitone have received in cash or cleared funds payment in full of all amounts owing to Multitone by the Buyer on any account whatsoever.

6.3   So long as the equipment remains Multitone’s property, the Buyer shall hold the equipment as Multitone’s bailee and shall keep the same at the expense of the Buyer, separate from equipment of the Buyer and of third parties and properly stored, protected and insured and clearly identifiable as Multitone’s property.  All sums received from any insurance claim made in respect of loss of or damage to the equipment shall be treated as if they were proceeds of sale and held by the Buyer on terms identical to those set out in clause 6.2.  The Buyer shall also hold on trust for Multitone and, if required to do so by Multitone, forthwith assign to it, the benefit of any insurance claim in respect of the equipment.

6.4   So long as the equipment remains Multitone’s property, Multitone may at any time require the Buyer to deliver up the equipment to Multitone and, if the Buyer fails to do so forthwith, to recover and resell the equipment if payment therefore is overdue and for this purpose the Buyer hereby expressly authorises Multitone, its employees or agents to enter upon the Buyer’s or other premises upon which the equipment is situated and recover the same.  Multitone may exercise the like rights of recovery, re sale and entry so long as any payment owed by the Buyer on any account is overdue.

6.5   So long as the equipment remains Multitone’s property, the Buyer shall ensure that the equipment does not become subject to any charge, lien or encumbrance but if the Buyer does so all monies owing to Multitone by the Buyer shall (without prejudice to any other right or remedy which Multitone may have) forthwith become due and payable.

6.6   The Buyer shall not modify or change any of the equipment without the prior written approval of Multitone.

7.    WARRANTIES AND LIABILITIES

7.1   Subject to Conditions 7.3 and 7.4 and to Condition 5.3, any items of equipment supplied by Multitone (excluding consumable items) which contain defects of materials or workmanship will be replaced or repaired free of charge at the option of Multitone provided that:

7.1.1          such defects are notified to Multitone in writing within 12 months after the date of acceptance of the equipment by the Buyer in accordance with the Multitone procedure applicable to its installation, commissioning and acceptance, as advised by Multitone to the Buyer;

7.1.2          the Buyer, if so requested, returns the equipment securely packed, carriage paid to a designated service centre together with sufficient details in writing to enable the equipment and the alleged defects to be identified;

7.1.3          the environmental conditions and operational and maintenance instructions prescribed by Multitone have been strictly observed and complied with and the equipment has not been used for any purpose other than for which it is intended, damaged as a result of accident, neglect, misuse or any other improper use or treatment;

7.1.4          repairs, alterations or modifications have not been made or attempted by any one other than Multitone or its authorised agent;

7.1.5          the equipment is not improperly stored or handled, exposed to weather elements where not so intended, abused, operated or maintained contrary to Multitone’s or manufacturer’s instructions, or are modified by or on behalf of the Buyer.

The foregoing states Multitone’s sole liability and the Buyer’s sole remedy in relation to equipment defects.

7.2   Where Multitone are not obliged to replace or repair equipment returned by the Buyer, they may at its sole discretion and without prior notice to the Buyer repair or replace the same and charge to the Buyer all labour, replacement parts and equipment and incidental expenses.

7.3   Performance ratings, while given in good faith, are estimates only based upon performance under Multitone’s standard test conditions and accordingly Multitone shall not be liable for any failure of any equipment to attain any performance ratings given to the Buyer.

7.4   Under no circumstances will Multitone be liable for the repair or replacement of batteries.

7.5   Although all reasonable care is taken to recommend the use of appropriate components and to advise and assist in connection with their correct installation.  Multitone cannot accept any liability howsoever arising for the malfunctioning of these components after delivery or installation or for any consequential loss, injury or damage which may result from their use.

7.6   Multitone does not seek to limit its liability for death or personal injury resulting directly from the negligence of Multitone nor to limit their liability for breach of the obligations arising from Section 12 of the Sale of Goods Act 1979 but subject thereto:

7.6.1          Multitone’s liability under the terms of these Conditions shall be in lieu and to the exclusion of all other warranties, conditions or obligations imposed or implied by statute, regulation, directive, common law or otherwise;

7.6.2          Multitone shall not be liable for any indirect or consequential loss or damage howsoever arising including (without limitation) loss of profits or anticipated savings loss of contracts or loss by reason of plant shut-down, non-operation or increased expense of operation or for loss of profit (whether direct or indirect);

7.6.3          Multitone’s total liability whether in contract or otherwise and whether for loss or damage resulting from negligence or otherwise shall not exceed in aggregate the price paid by the Buyer for the equipment.

7.7   In this clause, “electromagnetic disturbance” means any electromagnetic phenomenon which is liable to degrade the performance of electrical apparatus.  For example, “electromagnetic disturbance” will include, but not be limited to, electromagnetic noise, unwanted signals and changes in the propagation medium.  For the purpose of this definition, electrical apparatus shall be taken to be degraded if any of the following types of interference with its function occur, namely permanent, temporary or intermittent, i.e. total loss of function; or significant impairment of function; or in the case of information storage or retrieval equipment, destruction or corruption of information stored by it.

In this clause, “Multitone products” means products supplied by Multitone and “other apparatus or systems” means apparatus or systems (including cabling) not supplied by Multitone.

7.7.1          Unless otherwise expressly agreed by Multitone, the Buyer shall be responsible for ensuring that the electromagnetic environment in which Multitone products are to be installed and the installation of which they form part shall be such that no electromagnetic disturbance shall be caused by or to such products or installation.

7.7.2          Multitone does not accept liability for loss, damage, injury or consequence resulting directly or indirectly from electromagnetic disturbance caused to Multitone products by other apparatus or systems; or as the result of the electromagnetic environment in which Multitone products are installed.

7.7.3          In addition, Multitone cannot accept liability for loss, damage, injury or consequence resulting directly or indirectly from electromagnetic disturbance caused to other apparatus or systems by Multitone products; or by the installation, of which such Multitone products form part.

7.7.4          Sub-clauses 7.7.2 and 7.7.3 apply whether the Multitone products referred to in those sub-clauses were installed before or after the other apparatus or systems and whether or not the electromagnetic disturbance results from intrinsic qualities of the Multitone products, or of the other apparatus or systems or of the installation of which any of them form part.

7.7.5          Without limiting the provisions of sub-clauses 7.7.2 and 7.7.3, Multitone cannot accept liability for loss, damage, injury or consequence resulting directly or indirectly from electromagnetic disturbance arising as a result of any modification or adaptation of the Multitone products or of the installation of which they form part.

8.    DELAY OR CANCELLATION

8.1   Multitone shall not be liable for any loss or damage arising from delay or partial or non-performance of any of its obligations due to any cause beyond its reasonable control.  In the event of any delay due to any such cause, Multitone shall be granted a reasonable extension of time to overcome the same and shall be reimbursed by the Purchaser all additional costs, charges and expenses that Multitone shall have incurred or might incur by reason of the delay.  In the event of any cancellation due to any such clause as aforesaid, Multitone shall be paid a reasonable amount for their performance up to the time of cancellation.

9.    BUYER’S RESPONSIBILITIES

9.1   The Buyer shall at its own cost and expense promptly:

9.1.1          obtain and pay for and give Multitone such details as Multitone may reasonably require of all radio frequencies, licences, authorities, wayleaves and consents necessary in relation to the equipment and its manufacture, supply, use and installation (including without limitation in relation to the connection of the equipment to equipment not supplied by Multitone and the installation of equipment on land belonging to third parties) and notwithstanding the refusal or withdrawal of any such licence, authority, wayleave or consent the Buyer shall duly pay all of Multitone’s invoices in accordance with Condition 4;

9.1.2          allow Multitone during its normal working hours free and unhindered access to all relevant sites and structures;

9.1.3          give Multitone all such technical and other information and assistance as it may reasonably require; and

9.1.4          obtain and/or make all necessary modifications to any equipment not supplied by Multitone to which the equipment will be connected or in conjunction with which the equipment is intended to operate.

9.2   Due Performance of the foregoing by the Buyer shall be a condition precedent to further performance by Multitone of its obligations and (but without prejudice to any other rights they may have) Multitone shall be entitled to charge the Buyer all additional costs, charges and expenses incurred by Multitone as a result of any default by the Buyer.

10.          INDEMNITY

10.1       The Buyer shall indemnify Multitone from and against all costs, claims, demands or proceedings, expenses and liabilities whatsoever brought against Multitone by any third party as a result of the Buyer’s use of the equipment unless such costs, claims, demands or proceedings, expenses and liabilities arise as a direct result of the negligence, breach of contract or breach of statutory duty by Multitone, its employees or agents.

10.2       In addition and without prejudice to Condition 10.1, the Buyer shall fully and effectually indemnify Multitone from and against all costs, claims, demands, proceedings, expenses and liabilities whatsoever paid incurred or suffered by Multitone arising out of or in connection with any infringement or alleged infringement or use or alleged use of any patent or other intellectual property rights (whether in the United Kingdom or otherwise) for which Multitone may become liable through compliance with or execution of the Buyer’s order in accordance with the Buyer’s designs, plans or specifications or any marking or branding applied by Multitone to the equipment at the Buyer’s request.

11.          INTELLECTUAL PROPERTY RIGHTS

11.1       The Buyer shall indemnify Multitone against each loss, liability and costs which Multitone incurs as a result of the carrying out of any work required to be done on or to the equipment in accordance with the requirements or specifications of the Buyer involving any infringement or alleged infringement of the rights of any third party.

11.2       All intellectual property rights in the equipment and in all materials prepared by or on behalf of Multitone to enable Multitone to deliver equipment pursuant to any order shall remain vested in Multitone (or such third party as Multitone may notify to the Buyer) and the Buyer shall not acquire any proprietary interest whatsoever in such equipment or materials.

11.3       Multitone hereby grants to the Buyer a personal, non-transferable licence to use the software in the equipment solely in order to enable the Buyer to use the equipment for the purposes specified by Multitone and for no other purposes.  The Buyer shall not copy the software save as necessary for back-up purposes, nor may the Buyer decompile, disassemble or reverse engineer the software except as expressly permitted by law.  The Buyer shall not modify the software for any purposes.

11.4       If at any time it is alleged that the equipment infringes the rights of any third party or if, in Multitone’s reasonable opinion, such an allegation is likely to be made, Multitone, may at its option and at its own expense:

11.4.1      modify or replace the equipment without detracting from the overall performance of the equipment, so as to avoid the infringement; or

11.4.2      procure for the Buyer the right to continue to use the equipment; or

11.4.3      repurchase the equipment at the price paid by the Buyer less depreciation at the rate Multitone applies to its own equipment.

11.5       The Buyer shall notify Multitone immediately of any claim made or action brought or threatened alleging infringement of the rights of any third party.  Multitone shall have control over and shall conduct any such proceedings in such manner as it shall determine.  The Buyer shall provide all such reasonable assistance as Multitone may request.  The cost of any such proceedings shall be borne in such proportions as the parties shall agree, or in default of an agreement shared equally.

12.          SOFTWARE LICENCE

12.1       All software which forms an integral part of the Multitone products supplied to the Buyer pursuant to these Conditions shall be licensed to the Buyer on the terms of the then current Multitone Software Licence, a copy of which is available upon request by the Buyer to Multitone.

13.          USE OF INFORMATION – CONFIDENTIALITY AND ADVERTISEMENT

13.1       All information supplied by Multitone shall be treated as confidential and shall not be disclosed or used other than to satisfy the requirements of the order unless the information is or comes into the public domain otherwise than by breach of this Condition 13.1.  Similarly, any written material or drawings supplied by Multitone to the Buyer shall remain subject to Multitone’s copyright and shall not be copied or used for any purpose other than satisfying the requirements of the order.  The Buyer shall promptly return, when requested by Multitone, all written material and drawings supplied.

13.2       The Buyer shall not, without Multitone’s prior written consent, use Multitone’s name for any marketing purposes nor use or exhibit any Multitone equipment or materials for marketing purposes.

14.          TERMINATION

14.1       On or at any time after the occurrence of any events in Condition 14.2, Multitone may:

14.1.1      stop any equipment in transit;

14.1.2      suspend further deliveries to the Buyer;

14.1.3      exercise its rights under Condition 6;

14.1.4      terminate any contract with the Buyer with immediate effect by written notice to the Buyer.

14.2       The events are:

14.2.1      the Buyer being in breach of an obligation under a contract with Multitone;

14.2.2      the Buyer passing a resolution for its winding up or a court of competent jurisdiction making an order for the Buyer’s winding up or dissolution;

14.2.3      the making of an administration order in relation to the Buyer or the appointment of a receiver over, or an encumbrancer taking possession of or selling, an asset of the Buyer;

14.2.4      the Buyer making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally.

15.          CANCELLATION

In the event of the Buyer purporting to cancel an order, Multitone shall, if it wishes to accept such cancellation, be entitled to charge the Buyer a cancellation fee of  35 per cent of the Contract Price of the equipment by way of agreed liquidated damages and not a penalty, without prejudice to any other claim or right Multitone may have against the Buyer.

16.  USE OF EQUIPMENT

It is the Buyer’s responsibility to ensure that proper standards of safety are maintained in relation to the use of the equipment and to pass on all instructions regarding such use to its personnel and to arrange for their proper training in such use.  This obligation shall extend to taking all reasonable steps to ensure compliance with the Health and Safety at Work Act 1974 and related regulations in the event of sale on or other supply by the Buyer.

17.  LIEN

In addition and without prejudice to Condition 4.2, Multitone shall have a general lien on any goods of the Buyer in its possession for any monies whatsoever due from the Buyer to Multitone.  If monies are not paid when due Multitone may, in its absolute discretion, sell the goods and apply the proceeds towards the monies due and the expenses of the sale and shall upon accounting to the Buyer for the balance, if any, be fully and effectually discharged from all liability whatsoever in respect of the goods.

18.  NOTICES

Any notice to be given hereunder shall be given by post, facsimile or telex to the recipient at his or its principal or registered office and shall be deemed to have been properly served at the time when in the ordinary course of post or transmission such notice would reach its destination.

19.  GOVERNING LAW AND JURISDICTION

These Conditions shall be governed by and construed in all respects in accordance with English Law and the parties submit themselves irrevocably to the exclusive jurisdiction of the English Courts.