Sales Conditions Atom Sales Conditions CONDITIONS OF SALES AND EXPORT DEFINITIONS In these Conditions “the Seller” shall mean the person, division, corporation, partnership or other body so described above, and ‘the Buyer” shall mean the person, corporation, partnership or other body to whom the Goods (as hereinafter defined) are to be supplied: “the Goods” shall mean cables as shall be more particularly defined in any appropriate Purchase Order or offer for sale by the Seller. “Contract” shall mean any contract between the Seller and the Buyer for the sale and purchase of goods incorporating these Conditions. 2. CONTRACT CONDITIONS (a) Notwithstanding any provision to the contrary in any other set of contract conditions, standard terms, purchase order or otherwise no other conditions shall be applicable to the Contract between the Buyer and Seller unless expressly accepted by the Seller in writing. In the event that the Buyer shall attempt to vary these Conditions or to impose other conditions without the written consent of the Seller but shall nevertheless give the Seller instructions to proceed with the manufacture of or to deliver the Goods or shall accept delivery of the Goods or part thereof the Buyer shall be deemed by such action to have accepted these Conditions in their entirely, (b) In the event of any inconsistency between these Conditions and any other conditions accepted by the Seller in writing these Conditions shall prevail. 3. VALIDITY Unless previously withdrawn. Seller’s offer is valid for acceptance within only one day of the date of the Seller’s offer. 4. FORMATION OF CONTRACT The Contract Date shall be the date Seller receives Buyer’s order provided always that:- (a) the order (and any associated payment arrangements) are exactly in accordance with any previous offer made by Seller in respect of Buyer’s requirement (b) Seller does not first have to obtain Buyer’s acceptance of any changes in quoted delivery times as stated in Condition 1O(a). (c) Seller is in receipt of Buyer’s complete and final instructions enabling Seller to proceed with the prompt and uninterrupted manufacture and delivery of the Goods ordered; (d) Seller is in receipt of full details from Buyer of any necessary import licenses or clear evidence that they will be granted well in advance of the expected dates of shipment; (e) any necessary approvals from the relevant Turkish Credit Authorities have been received by the Seller. Should any of these or other reasons prevent Seller from accepting Buyer’s order and fixing the Contract Date. The buyer will be informed forthwith. No order can be entered into Seller’s manufacturing program until the Contract Date has been fixed (f) If a response is not received within5 days of the order confirmation date, we deem that as your acceptance of our order confirmation and these conditions of sale. 5. RAW MATERIALS All quotations are made subject to the Seller being able to purchase and obtain the necessary raw materials and Seller reserves the right to vary or withdraw its offer at any time on account of changes in the availability or otherwise of raw materials, even after receipt of the Buyer’s order. 6. CONTRACT VARIATIONS (a) Any extra costs incurred by reason of reductions, alterations or additions to the Goods ordered after the Contract Date has been fixed will be to the Buyer’s account. This will include the purchase of any necessary further supplies of material? in accordance with Clause S of these Conditions at the rates ruling on the dale of purchase, or, the re-scheduling of materials surplus to final requirements and the administrative costs thereof. The seller cannot accept responsibility for delays in manufacture and delivery that might result from such changes. (b) No order amendments are accepted after the LME term on the order confirmation starts. 7. PRICES (a) All prices are net selling and, except where stated to the contrary, include the cost of non-returnable export packing suitable for transportation overseas and allow for delivery to the point(s) stated. (b) Except where Seller’s offer states to the contrary, cables will be packed and delivered in standard manufacturing quantities. (c) Prices include the cost of normal testing and inspection requirements but a charge to cover special witnessed testing may be necessary, (d) Prices exclude customs duty, port or dock dues, clearance charges, demurrage, local taxes or any other charges that might be payable except those specifically stated in Seller’s offer and associated correspondence. 8. PRICE ADJUSTMENTS (a) All prices quoted are firm for the duration of the validity period quoted in 3 above but will be subject to variation thereafter to reflect changes in the cost of raw material or to reflect extended delivery periods. (b) Quoted and confirmed order prices are at base copper LME price. Those base prices are subject to copper adjustment with the LME term mentioned on the order confirmation only. Atom Kablo will not accept any other LMe Term. 9. PAYMENT (a) Terms of payment shall be as specified in Seller’s offer and order acknowledgment or, where no terms are stated, the terms shall be net prompt cash on delivery FOB Turkish PORT. Time for payment shall be of the essence of the Contract. (b) Where payment is to be made by letter of credit, the period of validity must extend beyond the expected date of shipment by a sufficient margin to allow the proper presentation of documents. The seller cannot accept responsibility for late deliveries due to delays in issuing or amending letters of credit. (c) Payment shall be made in the currency offered. (d) The Buyer may not because of any claims or complaints he may have against Seller, suspend or reduce payments due. (e) The Buyer specifically agrees and accepts that under no circumstances shall it be permitted to set off against monies due to the Seller any monies which may be due to Buyer. Buyer’s holding, subsidiary or associated companies by the Seller or any holding, subsidiary or associated company of the Seller. (f) Property in the goods shall not pass to the Buyer until payment in full for the same has been received by the Seller as well as payment for any other Goods which may be due from the Buyer to the Seller. Risk in the Goods shall pass to the Buyer upon delivery thereof. (g) If prior to such payment being received the Buyer shall incorporate the Goods into other goods (‘the New Goods”) the Seller shall acquire part ownership in the New Goods in the proportion that monies outstanding from the Buyer to the Seller bear to the cost of production of the New Goods and the Buyer shall hold the same proportion of any proceeds of sale or other disposition of the New Goods on trust for the Seller. (h) If notwithstanding the foregoing the Buyer is in default of payment of any part of the purchase price or shall before the whole of the purchase price has been paid have a receiving order made against him or being a company go into liquidation or have a receiver or administrator appointed then the Seller may without prejudice to any other rights or remedies available to him be entitled to enter into any premises where the Goods are held to recover possession of the Goods and sell the same retaining all monies received on account of the purchase price accounting to the Buyer for any part payment to the extent any sale proceeds represent a double recovery of the price. 10. DELIVERIES a) All delivery times are quoted as ex Seller’s factory and are estimates only. They will run from the Contract Date and are subject to confirmation at the time any order is received by Seller. Under no circumstances will the Seller be liable in damages or otherwise for failure to deliver by the estimated delivery dates given and nothing in these Conditions or elsewhere shall be construed as making time of the essence to the Contract. b) All delivery times and output rates are reckoned in working weeks/months and unless stated to the contrary exclude Seller’s annual works holiday periods, details of which will be provided where these are believed to be relevant. c) Delivery times and completion dates shall be extended by a reasonable period if performance of Seller’s contractual obligations is delayed by any cause whatsoever beyond the Seller’s reasonable control whether existing at the Contract Date or arising thereafter, which without limiting the generality of the foregoing shall include earthquake, flood, fire, or other natural physical disasters, plague, or other epidemics, war, hostilities whether war be declared or not, invasion, the act of foreign enemies, rebellion, revolution, civil war, insurrections, the usurping of power, riot, commotion or disorder, strikes, industrial disputes, lockouts, general shortages of materials or fuels, acts or omission of our suppliers or subcontractors, breakdown or failure of electric power or machinery, damage by fire, shortage of transport or delays en route, or failures or restrictions of Governments including restrictions or delays in the issue of the export or other licenses. d) Should Seller be prevented from fulfilling its obligations by virtue of any of the circumstances mentioned in (c) aforesaid for a period of six months. Seller shall have the right to terminate the Contract without either side having any recourse against the other save in respect of Goods previously delivered. e) Should Seller be prevented from shipping (or elect not to ship) the Goods or any of them by the due date because of any failure on Buyer’s part whether to designate an effective ship or to meet payment obligations under this or any other contract or otherwise or by reason of any cause whatsoever beyond Seller’s reasonable control no claim whatsoever for late delivery will be maintainable against Seller and Seller shall have the option at any time thereafter cither to terminate the contract without prejudice to any claim for damages against Buyer or to arrange on Buyer’s behalf and at Buyer’s expense for the storage of the Goods in a suitable independent warehouse and payment therefore shall be due and made (together with interest at current commercial rates from the contractual date for delivery until the date of payment) against presentation of a receipt evidencing delivery of the Goods to the warehouse in lieu of a bill of lading or other customary document of proof of delivery of Goods to a carrier. If before the exercise of the said option the circumstances preventing delivery or justifying Seller’s election to withhold delivery of the Goods cease and delivery of the Goods is made to Buyer Seller shall be entitled to interest on the price at current commercial rates from the contractual date for delivery until the date of payment. f) Where Goods are collected and transported ex-works or FCA using haulers other than Seller’s own transport, the driver of each vehicle collecting from Seller’s works shall be solely responsible for the positioning and distribution of all loads on his vehicle and shall satisfy himself prior to leaving the works that his vehicle is correctly loaded and in accordance with all relevant Ministry of Transport regulations, controlling legislation etc. 11. TECHNICAL DATA All weights dimensions capacities performance ratings and other data included in Seller’s tender are given in good faith but are subject to normal manufacturing tolerances and arc approximate only. Any errors, misstatements, discrepancies, or omission will as far as may be necessary to fulfill the fundamental nature of the contract and as may be practicable in the circumstances prevailing at the time, be corrected by Seller. All indications regarding production, output, efficiency, finish etc. which do not depend entirely on Seller, are approximate and not binding. 12. WARRANTY a) Buyer where such Goods have been stored and shipped in accordance with Seller’s instructions, the Goods show a defect in the workmanship or manufacture thereof and notice shall forthwith be given to Seller. Seller will supply free of charge a portion to replace the defective portion of the goods supplied and this shall be the full measure of Seller’s liability for any injury damage or loss arising from the said defect, whether direct or indirect, consequential or otherwise. b) Upon notification of a warranty claim under (a) above. Seller reserves the right to test the products which are the subject of such claim and, to that end, Buyer shall retain all relevant product in an appropriate storage environment and provide such adequate samples to Seller for testing purposes as the Seller might from time to time require. c) Where Goods have been supplied to the Buyer’s specification, the Seller accepts no liability for any defect in Goods which meet that specification and the Buyer shall indemnify the Seller against all loss, actions, claims, costs (including the costs of defending any legal proceedings) and proceedings, in respect of such Goods including claims that the specification or Goods infringe(s) any patent, trademarks, tradenames, designs (registered or unregistered) copyright or other industrial or intellectual property rights of any third party. The Seller gives no warranty as to the fitness for any particular purpose of Goods so supplied to the Buyer’s own specification and accepts no liability for clerical or stenographical errors on any drawing or specification provided by the Buyer. 13. INDEMNITY The Buyer agrees to indemnify the Seller and keep the Seller fully indemnified against all loss, actions, costs (including the costs of defending any legal proceedings), claims, damages or other expenses which may arise from:- a) any infringement or alleged infringement of patents, trademarks or tradenames, designs (registered and unregistered). copyright or other industrial property rights by Goods or possession, sale or use of Goods made to instructions in the Buyer’s design, specification or requirements whether such instructions are expressed or implied; b) any action was taken by the Seller which the Seller deems necessary, in its sole discretion, in order to comply with any applicable statutory requirements and regulations relating to waste management throughout the European Union; and c) any claim or alleged claim that the Goods infringe, or their import, use, possession or sale breaches any applicable statutory requirements or regulations relating to such Goods throughout the European Union. 14. CONFLICTS AND FORCE MAJEURE These conditions form the basis of Seller’s quotation and any contract arising therefrom, except insofar as they arc expressly waived or varied by Seller in writing. If there is any inconsistency between Seller’s quotations or any such other documents and these conditions, the former shall prevail. Seller shall be relieved of all his obligations under the Contract to the extent to which fulfillment thereof is prevented, frustrated, or impeded as a result of any circumstances which are beyond Seller’s control including, but not limited to, statutes, rules, regulations, orders or requisitions issued by any government department or other duly constituted authority or industrial action, war and nonavailability of raw materials, fuel, energy, epidemic, damage by fire or any other natural physical disaster. 15. DEFECTS a) Save as provided in these Conditions, Seller shall not be under any liability, whether in contract tort or otherwise, in respect of any loss damage or injury arising directly or indirectly from delivery and use of the Goods supplied by Seller howsoever caused and whether or not amounting to negligence on the part of the Seller. b) In no circumstances shall Seller be liable for any losses of business or profit or for any indirect or consequential loss whatsoever, howsoever arising. c) Above the total aggregate liability of the Seller arising as a result of or relating to the Contract whether in contract, tort (including negligence or breach of statutory duty) misrepresentation or otherwise shall not exceed the price of the Goods the subject matter of the Contract. 16. LEGAL CONSTRUCTION a) The construction validity and performance of the Contract shall be governed by Turkish law and shall be interpreted and construed accordingly. The parties submit to the exclusive jurisdiction of the Turkish Courts. b) The provisions of The Contracts (Rights of Third Parties) are hereby excluded and shall not apply. c) If the Buyer fails to pay the Seller any sum due without prejudice to any other rights and remedies of the Seller, the Buyer shall be liable to pay interest to the Seller on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of İS Bankasi A.Ş., accruing on a daily basis until payment is made, whether before or after any judgment. d) The Buyer shall not be entitled to assign any Contract or any part of it without the prior written consent of the Seller. e) Each right or remedy of the Seller is without prejudice to any other right or remedy of the Seller. f) If any provision of these Conditions are found by any court 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 these Conditions shall continue in full force and effect. g) Failure or delay by the Seller in enforcing or partially enforcing any provision of these Conditions shall not be construed as a waiver of any of its rights under these Conditions. h) Any waiver by the Seller of any breach of, or any default under, any provision of these Conditions by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of these Conditions. 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