General Terms and Conditions of Sale

1. DEFINITIONS

In these Terms and Conditions, the following words and expressions have the meanings assigned.

“Affiliate” means in relation to any party, any company which is a subsidiary or holding company of such party or a subsidiary of any such holding company, where “subsidiary” and “holding company” shall have the meanings assigned to them under section 736 of the Companies Act 1985.
ATL means Aquarium Technology Limited and its affiliates, its agents or its or their employees, officers and/or directors thereof.
“ATL Property” shall mean tools, equipment & materials owned by ATL as well as property or equipment of those under contract to ATL.
“Claims” shall mean all costs, losses, liabilities, expenses, claims, proceedings, debts, judgement, causes of actions or demands of every kind or character.
“Contract” means these Terms and Conditions and the Products and Services as detailed herein or annexed hereto.
“Costs” shall mean all costs, liabilities, losses, damages and expenses (including court costs and legal fees on the basis of a solicitor and his client) of any nature whatsoever.
“Customer” means the other party (or parties) to this Contract and includes its affiliates, it’s agents or its or their employees, officers and/or directors of Customer for whom Products may be supplied or Services performed at Customer’s request.
“ Customer’s Property” shall mean all property, livestock and equipment owned by Customer, and/or its Client, and its and their co-owners, co-leases, affiliates, parents and subsidiaries and joint venturers, as well as the property, livestock or equipment of those under contract to Customer.
“Customer’s Site” means the construction site, operating facility, development, land or premises to which ATL is granted access for the purpose of performance of this Contract and includes any combination of the foregoing.
“Force Majeure” means an event or effect that cannot reasonably be anticipated and is beyond the control of either party.
“Gross Negligence” shall mean a very marked departure from standards of conduct, diligence, safety and workmanship prevailing in the aquarium construction industry being the wilful and wanton disregard for harmful, avoidable and foreseeable consequences.
“Loss” shall mean loss of, damage to or destruction of, where the context requires.
“Products” means tanks, glazing or other fabrications and/or constructions fully or partially fabricated as detailed in this contract for installation into the Customer’s Site.
“Services” means the specific operations and supply of personnel, materials and equipment detailed in this Contract and any additional operations performed or materials supplied by ATL for Customer during the performance of this Contract.
Any agreement by one party hereto to defend, indemnify and hold harmless the other party shall extend and apply to the officers, affiliates, agents, directors and employees of the other party.

2. These Terms and Conditions may not be varied except as expressly agreed by both ATL and Customer in writing, and shall be deemed to have been accepted by Customer upon ATL agreeing to provide Products and/or Services. Any terms and conditions proffered by Customer are excluded save to the extent expressly accepted in writing by a representative of ATL expressly authorised to do so. These Terms and Conditions replace and take priority to any other agreement in place in relation to the supply of Products and Services between ATL and the Customer whether oral or in writing.
3. It is agreed and acknowledged by Customer that conditions in and about Customer’s Site have not been created by ATL and that ATL has no means of determining the hazards and damages, threat existent or to be encountered while installing the Products and/or performing the Services and therefore ATL accepts this order only at Customer’s risk, and in particular;

Customer shall at all times retain charge and control of, and accepts full responsibility for conditions on or about, Customer’s Site and Customer accepts full responsibility for all equipment on Customer’s Site, including equipment supplied by ATL, whether used in conjunction with the works or not;
Customer shall be responsible for preparation of Customer’s Site, to ATL’s specification to a condition suitable for the installation of Product’s and/or the provision of Services including all required facilities, ancilliary works and materials and such unskilled labour as ATL may reasonably require including assistance in loading or unloading PROVIDED THAT any person so engaged shall be deemed the employee or agent of Customer;
Customer shall ensure safe and adequate access for ATL to Customer’s Site and shall pay all costs of transportation for ATL Products, equipment, materials and personnel to or on Customer’s Site, including the provision of properly made up roads and bridges and the provision of site transport and cranage as may be required under the circumstances;
Risk of damage to or loss of Products, materials or equipment supplied to Customer by ATL shall pass to Customer at the time of delivery. Notwithstanding delivery and the passing of risk in such Products, materials and equipment, property and entitlement to such Products, materials and equipment shall not pass to Customer until ATL has received, in cash or cleared funds, payment in full of the invoiced amount of such materials and equipment and of all other sums due to ATL under the Contract. Until such time as the property and entitlement to such Products, materials and equipment passes to Customer, ATL shall be entitled at any time to require Customer to deliver up such Products, materials and equipment and, if Customer or any third party where such Products, materials and equipment are stored and repossess such materials and equipment.

4. WARRANTY STATEMENT

- ATL warrants the Products and Services it supplies to the Customer shall be free from defect and shall conform to the specifications expressed in the Contract, and in accordance with good Aquarium construction practices. HOWEVER, THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED, OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE PRODUCTS OR SERVICES.
- ATL’s liability and Customer’s exclusive remedy in any cause of action (whether in contract, tort, breach of warranty or otherwise) arising out of the sale or use of any Products, supplies, or materials is expressly limited to the replacement of such products, supplies or materials on their return to ATL at ATL’s option, to the allowance to the Customer of credit of the cost of such items.
- Because of the nature of the Products and Services provided by ATL which depends on the quality of the construction, materials and information provided by others and because of the uncertainty of Customer Site conditions and the necessity of relying on facts and supporting services furnished by other, ATL is unable to guarantee the effectiveness of the Products, supplies or materials, research analysis, design, job recommendation or other data furnished by ATL. ATL personnel will use their best efforts in gathering such information and their best judgement in interpreting it, but Customer agrees that ATL shall not be liable for and Customer shall indemnify ATL against any damages arising form the use of such information.
- In the case of materials or equipment used in the Products and/or Services which are not of ATL’s manufacture, Customer shall be entitled only to such benefits as ATL may have received under any guarantee given in respect thereof. Any other liability whatsoever of ATL is limited as provided for in this Article.
- If the Customer operates or performs the Services itself with materials and equipment supplied by ATL, then ATL shall not be in any way liable or responsible for the use or misuse of those materials or that equipment or the results that occur from such improper usage. ATL will not be liable for any defect arising from fair wear or tear to the materials or equipment.

5. LIABILITY AND INDEMNITY

- Personnel
  Each party shall be responsible at all times for Costs and Claims arising out of death, disease, illness or personal injury to its own affiliates, clients, officers and/or directors, agents or employees, and in addition;
- Each party shall defend, indemnify and hold harmless the other party from Costs and Claims arising out of death, disease, illness or personal injury to it’s own affiliates, clients, officers and/or directors, agents or employees regardless of any fault, negligence, or breach of duty, statutory or otherwise, whether sole, joint, concurrent, active or passive or otherwise of the other party.
- ATL Property
  ATL shall be liable at all times for Loss of ATL Property and in addition ATL shall defend, indemnify and hold harmless Customer from all Costs and Claims as a result of any such Loss, arising out of the installation of Products and/or provision of Services, regardless of any fault or negligence, or breach of duty, statutory or otherwise, whether sole, joint, concurrent, active or passive or otherwise, of Customer or howsoever arising, except the gross negligence or wilful acts or omissions of Customer.
- Customer’s Property
  Customer shall be liable at all times for Loss of Customer’s Property; and in addition Customer shall defend, indemnify and hold harmless ATL from all Costs and Claims as a result of any such Loss, arising out of the installation of Products and/or provision of Services, regardless of any fault or negligence, or breach of duty, statutory or otherwise, whether sole, joint, concurrent, active or passive or otherwise, of ATL or howsoever arising, except the gross negligence or wilful acts or omissions of ATL.
- Consequential Damages
  Notwithstanding any other provision herein to the contrary, Customer shall hold harmless, defend and indemnify ATL and it’s subcontractors of any tier in respect of any claims, costs (including legal costs) losses or damages in respect of any consequential or indirect loss (whether or not foreseeable at the date hereof) sustained by Customer and or it’s clients arising out of the performance of the contract irrespective of negligence (concurrent, contributory or otherwise) or breach of duty (contractual, statutory or otherwise) of ATL and it’s subcontractors. And: ATL shall hold harmless, defend and indemnify Customer in respect of any claims, costs (including legal costs) losses or damages in respect of any consequential or indirect loss (whether or not foreseeable at the date hereof) sustained by ATL and/or it’s subcontractors of any tier arising out of the performance of the contract caused irrespective of negligence (concurrent, contributory or otherwise) or breach of duty (contractual, statutory or otherwise) of Customer and or it’s clients. Consequential loss shall include but not be limited to loss of use, loss of profits, loss of production, loss of business opportunity and business interruption.
- General Customer
  shall defend indemnify and hold harmless ATL from all Claims which may be brought against ATL in connection with the Products or Services as a result of negligent acts or omissions or breach of duty, statutory or otherwise, of Customer and parties other than ATL and ATL’s subcontractors at the site.
- Third Parties
  Subject to the provisions of subsections 5.1 to 5.5 losses to third parties and their personnel and property shall be governed according to the law and any finding or apportionment of negligence between parties.
- Force Majeure
  Each party hereto shall be excused from the performance of it’s obligations hereunder from time to time and at any time, but only so long as it is prevented from performance by act of God or public enemy, war, explosions, blockage, civil insurrection, strikes, lock outs, the elements, fire, flood, compliance with any law rule, order or regulation which has not been declared by a court of competent jurisdiction to be invalid or any other cause beyond the reasonable control of such party whether similar or dissimilar, provided that lack of funds or circumstances resulting from the lack of adequate planning which a party should have reasonably been expected to perform shall not be considered a cause beyond the control of a party. In the case of work suspension due to Force Majeure, the party claiming Force Majeure shall, within fifteen (15) days from the beginning of any such Force Majeure, notify the other party of such failure of performance and the cause thereof, and shall specify the anticipated period of delay before performance can be resumed. The party claiming Force Majeure must also show that it has taken all reasonable measures to overcome and/or minimise any delay arising from such Force Majeure.

6. ATL will make its best efforts to provide the Products and Services on the date and within the time limit specified in the Contract if any, but ATL accepts no liability whatsoever arising from delay in provision of details, commencement, installation or completion of the works and may adjust its charges to cover additional Services done or expense incurred by ATL as a result of delay which has not been occasioned by the neglect or default of ATL.
7. Customer may at any time at its sole discretion upon notice, terminate any workscope being performed or workscope which have been ordered but has not as yet been performed, in which event ATL will be paid at the agreed prices for work performed up to the time of such termination. ATL shall also be reimbursed for costs to demobilise materials, equipment and personnel to the base of origin including all export and import taxes and duties in accordance with section 12, as well as ATL’s costs for goods manufactured or purchased specifically for the Customer’s Site. Termination of workscopes being performed shall not be deemed to be a cancellation of this Agreement.
8. ATL will operate at all times under its own standards of safety and reserves the right to refuse any tasks when, in its sole opinion, job conditions render such tasks inadvisable, and no liability is accepted by ATL if performance is affected by such conditions or by other conditions or circumstances of any nature or kind whatsoever beyond the reasonable control of ATL.
9. Customer shall nominate a responsible representative to be the point of contact for ATL workscopes.
10. Customer shall carry and maintain levels of insurance as are suitable and sufficient to insure Customer’s obligations hereunder and, if requested, shall provide ATL with proof of insurance.
11. Payment for Products and Services shall be in cash in advance unless satisfactory credit is established in which case Customer agrees to pay the total net billing price as ATL directs on it’s invoice within thirty (30) days of the date of receipt of such invoice, PROVIDED THAT if payment is not made in accordance with the terms of the Contract, in addition to any other rights ATL may have at law, it shall be entitled to charge Customer Interest on the unpaid balance due at a rate of one and one half (1½%) per cent, per month, eighteen (18%) per cent per annum. If any portion of the invoice shall be disputed the Customer shall pay the undisputed portion, thereafter the parties shall expeditiously and in good faith negotiate a settlement of the disputed portion.

12. Any tax based on or measured by the charges made for or the cash receipts from the supply of Products, equipment, materials or the rendering of Services, as well as Value Added Tax or any other included tax, unless Customer provides certification of exemption for any such tax, shall be added to the scheduled prices, and prices shall be varied automatically on any variation in or imposition of included taxes, duties or levies to take account of such variation or imposition. Further:

If the Products are to be installed or Services performed outside of the United Kingdom, the Customer shall also be responsible for the importation for performance of the workscope and all costs related thereto including customs duties, import taxes, stamp duties, local charges, and other like charges.
In the event that the Products are to be installed or Services performed outside of the United Kingdom, the Customer shall reimburse ATL for all taxes, levies or charges withheld in the foreign jurisdiction in relation to the performance of the workscope.

13. All information provided by ATL in its quotation or otherwise supplied or arising out of or in connection with this Contract shall be kept in confidence by Customer and shall not be communicated to any third party or used for any purpose other than the purpose of this Contract without the prior written consent of ATL unless and until the same is public knowledge or comes into possession of Customer bona fide from a third party.

ATL shall be entitled to the full and unrestricted right, including the right to apply for patent or other protection in its own name, to exploit any invention, technical information or know-how arising from or developed in the course of carrying out the workscope.
Products, equipment and materials that are standard and of ATL’s manufacture are warranted to be free of patent or other industrial property restrictions in the United Kingdom but ATL gives no other warranty against patent or intellectual property infringement and no liability is accepted in respect thereof, and for greater certainty, if ATL supplies Products, equipment or materials which have been varied to meet Customer’s own equipment or materials, no warranty is given and Customer shall accept full liability in respect of infringement of patents or other industrial property rights and agrees to indemnify ATL against all claims, losses or costs arising therefrom.

14. This Contract shall be construed in accordance with the laws of England and shall be subject to the non-exclusive jurisdiction of the English courts. Customer agrees that it occupies an equal bargaining position with ATL and that the respective rights and liabilities of the parties hereunder are reasonable and equitable based on the nature of the work to be performed.
15. ATL shall be entitled to terminate the Contract by written notice to Customer in the event that Customer fails to make due payment to ATL. Customer is in material breach of any of its obligations under the Contract or in the event that Customer goes into liquidation , (other than for the purpose of a solvent scheme of re-organisation or amalgamation) becomes insolvent, makes an arrangement in favour of its creditors, has diligence executed on any of its assets or has a Receiver or Administrator appointed over its business or property or any part thereof.
16. Should any provision of these Terms and Conditions be determined to be illegal, unenforceable or invalid for any reason, such provisions shall be severable in whole or in part and all other provisions shall continue in full force in effect.
17. ATL shall be entitled to assign or sub-contract the Contract or elements of the Contract without the consent of Customer. Customer shall only be entitled to assign the Contract with ATL’s prior written consent.
18. If these General Terms and Conditions are attached to or incorporated by reference to any purchase order, then any reference in a purchase order to “FOB, CIF,Ex-works” or any other commercial term, shall be construed in accordance with the rules of the International Chamber of Commerce, commonly known as Incoterms, 1990.
19. The parties expressly waive the provisions of the United Nations Convention on Contracts for the International Sale of Goods as adopted or proclaimed by the United Kingdom.
20. ATL Products and Services are supplied or sold to the Customer at the destination indicated on the purchase order or invoice. The Customer expressly warrants that any equipment, materials, components, chemicals, product or any other item supplied by ATL to the Customer will not be trans-shipped or re-exported to any other country. Further, the Customer is aware that the sale or provision of certain goods to certain countries is restricted by UK or other countries’ laws which may apply to either ATL or the Customer, and that the Customer will not do any act or resell any item in violation of such laws, or at all.
Sections 4, 5, 10, 12, 13 and 15 will continue in effect notwithstanding the early termination or completion of the Contract.