GENERAL CONDITIONS OF SALE

SAMOA LTD

IN THESE CONDITIONS ‘THE COMPANY’ SHALL MEAN SAMOA LIMITED

1.        Definitions

In these conditions ‘Seller’ shall mean Samoa Ltd. and its subsidiaries and any associated company. ‘Buyer’ shall mean the purchaser of the goods supplied by the Seller.  ‘Goods’ shall mean any item or services supplied by the Seller.  ‘Home sale’ shall mean goods delivered within the United Kingdom.  ‘Export sale’ shall mean goods delivered outside the United Kingdom.

2.        Scope

These conditions apply to Export sales and Home sales equally unless specifically stated herein to the contrary.

3.        Terms and Conditions

These conditions apply to all contracts and over ideal conditions stipulated by the Buyer and any other agreements between the parties relating to the subject matter hereof are hereby terminated.

The general conditions supersede any earlier sets of conditions appearing in the Seller’s catalogue, price lists and elsewhere.  The signing by the Seller of any of the Buyer’s documentation does not imply a modification of these general conditions.  Any modification of these general conditions is ineffective unless made by an express written agreement between the parties.

4.        Specifications

All descriptions and illustrations contained in the Sellers catalogue, price list and advertisements or otherwise communicated to the Buyer are intended merely to represent a general idea of the items described therein and nothing contained in any of them shall form any part of any agreement of which these general conditions form a part.  Notwithstanding that a sample of the goods may have been exhibited to and inspected by the Buyer it is hereby agreed that such sample was so exhibited and inspected solely to enable the Buyer to judge for himself the quality of the bulk and not so as to constitute a sale by sample.

5.        Retention of Title

[i] The property in all goods supplied shall remain with the Seller until all monies owed by the Buyer to the Seller shall have been paid.  Risk in the goods shall pass to the Buyer on delivery in accordance with the terms as to delivery and the Buyer shall thereafter insure the goods against all loss or damage howsoever occurring.

[ii] The Buyer shall be entitled to offer for sale and sell the goods at the best obtainable price in the ordinary course of its business as principal vis-à-vis sub-buyers and not as agent for the Seller.  The Seller, however, shall be legally and beneficially entitled to the proceeds of sale and the Buyer shall pay such proceeds of sale into a separate account or otherwise shall ensure all proceeds of sale are kept by or on behalf of the Buyer in a separate and identifiable form.  In particular but without prejudice to the generality of the foregoing the Buyer shall not pay the proceeds of sale into the bank account which is overdrawn.  Further forthwith upon receipt of the proceeds of sale the Buyer shall pay to the Seller any of the aforesaid sums outstanding to the Seller and shall not use or deal with the proceeds of sale in any way whatsoever until such sums have been paid.

[iii] If the Buyer incorporates or mixes the goods with or uses the goods to manufacture other equipment or products (‘the new goods’) in such a way that the goods are not a readily identifiable and removable part of the new goods the Buyer shall store such new goods separately and shall notify the Seller of the precise location and position thereof and the ownership of such new goods and the property therein shall vest in the Seller.  Upon any sale of any new goods by the Seller, then if the proceeds of sale exceed the monies due to the Seller from the Buyer, the Seller shall apply the balance of the proceeds of sale as follows:

(a)  first, reimbursing the Seller the cost and expense of the taking of possession and the sale of the new goods and any damages which the Seller has suffered as a result of any repudiation of the contract by the Buyer.

(b) secondly, paying any sums due and owing to other creditors of the Buyer in respect of other items and materials in connection with the manufacture of the new goods where the property in such items and materials has remained vested in such other creditors by reason of effective reservation of title clauses and the claims of such other creditors pursuant to such reservation of title clauses have been notified to the Seller by the Buyer or its liquidator, administrator or receiver or by such other creditors.

6.        Price

[i] The price to be paid for the goods will be for the price ruling at the date of despatch and the Seller reserves the right to alter the price to account for accidental errors and omissions.

[ii] The Seller shall be entitled to recover from the Buyer by way of addition to the price such amounts as the Seller is liable to charge in respect of Value Added Tax or any other taxes in relation to goods supplied hereunder.

7.        Payment

[i] Export Sale.  Unless otherwise agreed in writing payment of the price shall be made by satisfactory irrevocable documentary Letter of Credit to be opened in the Seller’s favour with a first class London Bank and confirmed by them negotiable against documents on presentation.  Work will not commence or goods be dispatched until such confirmation is received.

[ii] Home Sale.  Payment for the goods shall be made not later than the end of the month following the month in which the goods are invoiced.  The right is reserved to either retract any discounts granted or to charge interest to overdue accounts at 3% over current Bank of England base rate at the Seller’s discretion.

8.        Delivery

[i] Delivery dates are approximate and whilst every effort will be made to meet such dates the Seller will not accept responsibility or liability if any delivery dates are not met.

[ii] Without prejudice to Clause 8[i] the Seller shall not be liable for any delay in delivery or non-delivery of goods caused by any circumstances beyond the Sellers control including without limitation, any Act of God, explosion, fire, flood, war, hostilities, riot, accident, delay in delivery or non-delivery by the Sellers suppliers, breakdowns or accidents to machinery, labour strike or dispute, order of decree of any court or action of any government authority, or any other causes or any circumstances whatsoever beyond the Sellers control, and on the occurrence of any of the above events the Seller reserves the right to cancel or suspend the whole or part of the delivery.

[iii] It may be agreed with the Buyer to provide the goods against the Buyers forward schedules.  In the event of any request to the Buyer to change delivery periods, technical specifications or quantity in a delivery the Seller will inform the Buyer if such changes may be implemented, the notice necessary to effect them and any additional charges incurred.

9.        Carriage Home Sales

[i] Carriage will be charged for any delivery of a value below the minimum delivery value entitling the Buyer to free delivery.  This value may be adjusted by the Seller from time to time without notice.

[ii] Where the Buyer requests special delivery of the goods these can be arranged.  The extra cost thereof will be for the account of the Buyer.

10.      Carriage Export Sales

Unless otherwise agreed in writing all goods are supplied F.O.B. as defined INCO Terms 1953 at country of origin and all charges will be for the account of the Buyer.

11.      Loss or damage in transit, Home Sales only

If the goods or any part thereof are or is damaged or lost while in the custody of a carrier the Seller will at the Seller’s sole option, either replace such goods or such part thereof or refund to the Buyer the cost or price of the same, but in no circumstances whatsoever shall the liability of the Seller in connection with any such goods or part thereof exceed the cost of replacement of the same or the price paid by the Buyer for the same.

The Seller shall in no circumstances be under any liability under this clause unless the following conditions are strictly complied with:-

[i] Non-delivery of a whole consignment of goods.  The Buyer must inform the Seller within seven days of the date of invoice in writing or by fax:

[ii] Damage to goods or loss of part of a consignment: Consignments must be inspected in the presence of the carrier.  If any goods are damaged or lost the consignment note must be endorsed accordingly and the Buyer must submit a detailed written claim to the carrier within three days of the date of delivery and supply a copy of such a claim to the Seller within seven days of the date of delivery.

12.      Guarantee

[i] Complaints by the Buyer in respect of goods alleged to be defective shall not be a ground for the Buyer to withhold payments of accounts due to the Seller from the Buyer and shall not give any right of set-off against payments due from the Buyer to the Seller.

[ii] The Buyer shall determine the suitability of the products for his intended use and shall not rely upon any representations made by or on behalf of the Seller.  In no circumstances will the Seller’s liability exceed the limitations set forth above.

[iii] The goods shall be subject to the terms contained in any form of guarantee issued by the Manufacturers but shall be free from all other warranties expressed or implied statutory or otherwise and the Seller shall not be responsible or liable for any injury or damage to person or property or loss or consequential loss arising out of there use or handling.  The Seller shall not accept responsibility for the expiry of any such guarantee due to the period for which the goods have been held in stock or otherwise.

13.      Form of Orders

All orders should be in writing by official order or by email and will always be subject to these General Conditions.  Telephone orders are accepted at the Seller’s discretion and again will be subject to these General Conditions.  However confirming orders shall be clearly so marked and duplication from failure to do so will be dealt with in accordance with Clause 14 hereof.

14.      Returned Goods

No returns will be accepted by the Seller without his prior consent.

15.      Cancellation of Orders

Orders accepted by the Seller constitute a Contract and cannot be cancelled by the Buyer for any reason whatsoever without the consent in writing of the Seller and such consent shall be on the basis of a levy of not less than 20% and up to 100% on the price of the order to be cancelled.  Where the order is for products which are being manufactured to order by the Seller or the Seller’s supplier and the process has started no cancellation can be accepted.

16.      Patents

[i] The Seller endeavours not to offer for sale goods which infringe know or valid Patents but shall not be liable and no claims shall be made against it by the Buyer for any damage or loss of profit arising from infringement of any Patent or Registered Design or from any use or sale of the goods.

[ii] If the Seller provides advice to the Buyer in matters of technique or supplies goods for carrying a technique into effect the tendering of such advice or the supply of such goods carries no guarantee that such technique is free from Patent restrictions nor can the Seller accept any liability arising from infringement or alleged infringement of Patent as a result of the Buyer following the advice tendered by the Seller or using the goods.

17.      Receivership

In the event of a receiver being appointed of a Buyer’s property or assets or any part thereof or a court order being made or resolution passed for the winding up of the Buyer [except for the purposes of amalgamation or reconstruction] or of the Buyer committing any act of bankruptcy, or having any bankruptcy petition presented against him, then the Seller shall be at liberty forthwith by notice in writing to the Buyer to cancel all orders and contracts or any part thereof remaining unfulfilled between the Seller and the Buyer for the delivery of the goods.

18.      Arbitration

If any dispute shall arise as to the meaning operation or effect of the Contract or as to any matter or thing done or omitted thereunder the same shall be referred for decision to arbitration in accordance with the provisions of the Arbitration Act 1950 or any statutory modification or re-enactment thereof for the time being in force.

19.      Law of Contract

The Contract shall be governed and construed in accordance with the Laws of England and the Buyer agrees to submit to the jurisdiction by the Courts of Law in England in respect thereof.