Fixed Cost Development Terms of Business

IMPORTANT: These terms and conditions apply to work being carried out by HamTEK on Fixed Cost Development terms of business.

1. Definitions and Interpretation

1.1 In these terms of business (“Terms”), the following words and phrases shall have the following meanings unless the context otherwise requires:

“Hamtek” means HamTEK Ltd and any person who is employed by or contracted to HamTEK Ltd.

“We”, “Us”, “Our” mean HamTEK Ltd.

“You”, “The Client” means the company, partnership, organisation, or individual for which the Project is being undertaken or quoted.

“Project” means the totality of work to be undertaken by Hamtek for the Client as described in the Quotation, comprising one or more Project Phases.

“Project Phase” means a distinct stage of the Project, including its scope, deliverables, acceptance criteria, and fixed cost, as agreed in writing by Hamtek and the Client before commencement of that phase.

“Requirements” means the items of work, tasks, specifications, or deliverables to be carried out or produced by Hamtek during the Project, as agreed in writing by the Client and Hamtek before work commences.

“Quotation” means a written proposal issued by Hamtek setting out the scope of work, Requirements, deliverables, estimated timescales, and pricing for a Project or Project Phase.

“Fixed Cost” means the charge quoted by Hamtek to fulfil the Requirements of a Project or Project Phase, as stated in the Quotation. The Fixed Cost covers Hamtek’s labour and overheads only, unless expressly stated otherwise in the Quotation.

“Daily Rate” means a charge, expressed as a cost per day, that Hamtek charges for work carried out on a Project. The applicable rate will be as agreed on commencement of the Project, per person. A minimum charge of half a day will be incurred for each person who carries out any work during that day.

“Pass-Through Costs” means costs incurred by Hamtek that are necessary for the fulfilment of a Project or Project Phase but are not included within the Fixed Cost. These may include, without limitation, tooling charges, prototyping costs, third-party services, test laboratory fees, certification costs, manufacturing setup charges, shipping, specialist components, and any other expenses agreed with the Client.

“Part” means any item including hardware, software, product, or functional element of a system.

“Equipment” means items used while working on a Project or being transported before or after the Project.

“Deliverables” means the tangible and intangible outputs of a Project or Project Phase, as described in the Quotation.

“Communicated” means correspondence by electronic mail or postal letter in any direction between the Client and Hamtek.

1.2 References to “in writing” include email.

1.3 Headings are for convenience only and shall not affect the interpretation of these Terms.

2. Application and Formation of Contract

2.1 These Terms apply when Hamtek undertakes a contract to perform work on a Fixed Cost basis. They do not apply to the sale of products (which is governed by our separate Terms and Conditions of Sale) or to repair and modification services (which are governed by our Repair and Modification Terms and Conditions).

2.2 A Quotation issued by Hamtek does not constitute an offer. A Quotation is valid for 30 days from the date of issue unless otherwise stated.

2.3 A binding contract is formed when the Client accepts a Quotation in writing. By accepting a Quotation, the Client agrees to be bound by these Terms.

2.4 In the event of a conflict between these Terms and the Quotation, the Quotation shall prevail to the extent of the conflict.

2.5 These Terms shall override and take the place of any other terms and conditions in any document or communication used by the Client.

3. Requirements and Scope

3.1 Before Hamtek issues a Quotation, the Client must supply clear Requirements that cover the scope of the Project and define the work to be undertaken.

3.2 Before issuing a Quotation, Hamtek will endeavour to ensure a mutual understanding of the Requirements and the work to be undertaken. However, it is the Client’s responsibility to ensure that the Requirements accurately describe what the Client needs and that the work proposed in the Quotation will fulfil those Requirements.

3.3 If any changes occur to the Requirements after the Quotation has been issued but before work commences, Hamtek may, at its sole discretion:

(a) issue a revised Quotation for the whole Project or the affected Project Phase; or

(b) decline to quote, in which case any preceding Quotation shall be null and void.

3.4 If any changes to the Requirements occur during a Project Phase, Hamtek may, at its sole discretion:

(a) charge at the Daily Rate for work completed up to the date of the change; and

(b) either issue a revised Quotation for the remainder of that phase, or treat the current phase as complete and propose a new Project Phase.

3.5 During the Project, Hamtek may need to use or borrow Equipment from the Client, as agreed and stated in the Quotation.

3.6 Hamtek shall not be liable for any delay or failure of the Project to meet any Requirement caused by the Client’s failure to supply any Part, Equipment, information, access, or cooperation required to undertake the Project.

4. Project Phases

4.1 The Project may be divided into one or more Project Phases as agreed between Hamtek and the Client before work commences.

4.2 Each Project Phase shall have:

(a) a defined scope and Requirements;

(b) a Fixed Cost;

(d) acceptance criteria.

4.3 The Fixed Cost for each Project Phase applies only to the agreed Requirements and Deliverables for that phase. Any changes requested by the Client may, at Hamtek’s sole discretion, require a separate Quotation or Daily Rate work.

4.4 The Fixed Cost for a Project Phase covers only Hamtek’s labour and overheads as explicitly set out in the Quotation. Any Pass-Through Costs associated with that phase are excluded unless expressly included in writing.

4.5 Where Pass-Through Costs are expected but not yet quantifiable (for example, where external tooling quotes are pending), Hamtek may provide an estimate. The Client acknowledges that such costs may vary depending on third-party pricing, and that estimates of Pass-Through Costs are not binding.

4.6 Hamtek will notify the Client when a Project Phase has been completed and provide the Deliverables for review and approval.

4.7 The Client shall review the Deliverables against the agreed acceptance criteria and either:

(a) confirm acceptance in writing; or

(b) notify Hamtek in writing of any specific failures to meet the acceptance criteria, within 10 working days of delivery of the Deliverables.

4.8 If the Client does not respond within 10 working days, the Project Phase shall be deemed accepted.

4.9 If the Client identifies failures to meet the acceptance criteria, Hamtek shall carry out such corrective work as is reasonably necessary to bring the Deliverables into conformity with the agreed Requirements, at no additional charge. This does not extend to new requirements or changes of scope.

4.10 Hamtek is not obliged to begin work on any subsequent Project Phase until payment for the preceding phase has been received.

5. Payment

5.1 All prices quoted by Hamtek are exclusive of VAT, which will be charged at the applicable rate.

5.2 Hamtek may require a deposit prior to commencement of the first Project Phase. The amount and terms of any deposit shall be stated in the Quotation.

5.3 Fees for each Project Phase shall become payable upon completion and acceptance (or deemed acceptance) of that phase.

5.4 Hamtek shall be entitled to issue an invoice upon completion of each Project Phase.

5.5 Work on subsequent phases shall not commence until payment for the preceding phase has been received, unless otherwise agreed in writing.

5.6 Pass-Through Costs may be invoiced in advance, on occurrence, or at phase completion, at Hamtek’s discretion unless alternative terms are stated in the Quotation. Where third-party suppliers require payment in advance, the Client agrees to make such payments when reasonably requested by Hamtek.

5.7 Pass-Through Costs shall be communicated to the Client in advance wherever practicable, and work requiring such expenditure shall not proceed without the Client’s written approval.

5.8 Invoices are payable within 30 days of the date of issue.

5.9 If the Client fails to make payment when due, Hamtek reserves the right to charge interest on the overdue amount at the rate of four per cent per annum above the base rate from time to time of the Bank of England, calculated on a day-to-day basis from the due date until the date of actual payment, whether before or after any judgement.

5.10 Hamtek’s right to charge interest under clause 5.9 is without prejudice to any other rights or remedies available to Hamtek, including the right to suspend work under clause 9.

6. Intellectual Property

Ownership of Deliverables

6.1 Subject to clauses 6.3 and 6.4 and to full payment of all sums due under the contract, all intellectual property rights in the Deliverables created by Hamtek specifically for the Client under the Project shall be assigned to the Client.

6.2 The assignment in clause 6.1 shall take effect on payment of the fees for the relevant Project Phase. Until payment is received in full, Hamtek retains all intellectual property rights in the Deliverables.

Hamtek’s pre-existing IP and tools

6.3 Nothing in these Terms assigns to the Client any intellectual property rights in Hamtek’s pre-existing intellectual property, including methodologies, tools, libraries, routines, templates, know-how, or other materials that existed prior to the Project or that were developed independently of the Project (“Hamtek Background IP”).

6.4 Where any Deliverable incorporates or is dependent upon Hamtek Background IP, Hamtek grants the Client a non-exclusive, perpetual, royalty-free licence to use that Hamtek Background IP solely to the extent necessary to use the Deliverables for their intended purpose.

Client’s IP

6.5 All intellectual property rights in any materials, designs, specifications, or other information provided by the Client to Hamtek for the purposes of the Project (“Client Materials”) shall remain the property of the Client.

6.6 The Client grants Hamtek a non-exclusive licence to use the Client Materials solely for the purpose of performing the Project.

6.7 The Client warrants that it has the right to provide the Client Materials to Hamtek and that their use by Hamtek in performing the Project will not infringe the intellectual property rights of any third party. The Client shall indemnify Hamtek against any claims arising from a breach of this warranty.

Third-party IP

6.8 Where the Deliverables incorporate third-party intellectual property (for example, third-party software libraries or components), the Client’s right to use that third-party IP is subject to the third party’s own licence terms. Hamtek will identify any known third-party IP incorporated into the Deliverables.

Alternative arrangements

6.9 The default IP position set out in this clause 6 may be varied by express written agreement in the Quotation or a separate IP agreement. Where the Quotation specifies alternative IP arrangements, those arrangements shall prevail over this clause 6.

7. Confidentiality

7.1 Each party undertakes to keep confidential all information (whether written, oral, or in any other form) disclosed to it by the other party in connection with the Project that is identified as confidential, or that ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure (“Confidential Information”).

7.2 Each party shall:

(a) use the other party’s Confidential Information only for the purpose of performing its obligations under the contract;

(b) not disclose the other party’s Confidential Information to any third party without the prior written consent of the disclosing party, except to its employees, contractors, or professional advisers who need to know it for the purposes of the Project and who are bound by equivalent obligations of confidentiality; and

7.3 The obligations in this clause 7 do not apply to information that:

(a) is or becomes publicly available through no fault of the receiving party;

(b) was already known to the receiving party before disclosure, without any obligation of confidentiality;

(c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or

(d) is required to be disclosed by law, regulation, or order of a court or regulatory body, provided that the receiving party gives the disclosing party reasonable advance notice where permitted.

7.4 The obligations of confidentiality in this clause 7 shall survive the completion or termination of the contract and shall continue for a period of 3 years from the date of disclosure.

8. Guarantee

8.1 Hamtek warrants that all work carried out as part of each Project Phase will be performed with reasonable care and skill and will meet the agreed Requirements for a period of 90 days from the date that phase is completed and accepted (or deemed accepted) (“the Guarantee Period”).

8.2 The guarantee applies only to the work carried out by Hamtek during the Project. It does not extend to any Part or Equipment provided by the Client at any time before or during the Project.

8.3 If Hamtek modifies any Part provided by the Client during the Project and that modification alters the Part’s existing functionality in a way that was not agreed in the Requirements, Hamtek will carry out work to restore the existing functionality at no additional charge, provided the Client notifies Hamtek within the Guarantee Period.

8.4 To make a claim under this guarantee, the Client must notify Hamtek in writing within the Guarantee Period, providing reasonable evidence that the work does not meet the agreed Requirements.

8.5 In the event of a dispute about whether existing functionality has been incorrectly altered, the parties agree that an equivalent definitive test shall be carried out on both the original Part (or a reference specimen) and the modified Part to determine the nature and extent of any alteration.

8.6 Hamtek’s liability under this guarantee is limited to re-performing the defective work or, at Hamtek’s option, refunding the fees attributable to the defective Project Phase.

8.7 This guarantee does not cover defects or failures caused by the Client’s misuse, modification, or alteration of the Deliverables after completion, or by factors outside Hamtek’s control.

9. Termination and Suspension

Termination by the Client

9.1 The Client may terminate the contract at any time by giving written notice to Hamtek. In the event of termination by the Client:

(a) the Client shall pay Hamtek for all work completed and Pass-Through Costs incurred up to the date of termination;

(b) if termination occurs part-way through a Project Phase, Hamtek shall be entitled to charge at the Daily Rate for work completed during that phase, plus any irrecoverable costs committed in reliance on the Quotation; and

(c) subject to full payment, Hamtek shall deliver to the Client all Deliverables and work in progress completed up to the date of termination.

Termination by Hamtek

9.2 Hamtek may terminate the contract by giving written notice to the Client if:

(a) the Client commits a material breach of these Terms and fails to remedy such breach (if capable of remedy) within 14 days of receiving written notice from Hamtek specifying the breach; or

(b) the Client fails to make any payment when due under the contract and such failure continues for 14 days after Hamtek has given written notice requesting payment; or

Suspension

9.3 Without prejudice to its right to terminate, Hamtek may suspend work on the Project by giving written notice to the Client if:

(a) the Client fails to make any payment when due;

(b) the Client fails to provide any Part, Equipment, information, or cooperation necessary for Hamtek to proceed; or

9.4 Hamtek shall resume work as soon as reasonably practicable after the cause of suspension has been resolved. Any agreed timescales shall be extended by a period equal to the duration of the suspension.

Insolvency

9.5 Either party may terminate the contract immediately by giving written notice if the other party:

(a) suspends, or threatens to suspend, payment of its debts, or is or admits to being unable to pay its debts as they fall due;

(b) has an administrator, receiver, administrative receiver, or analogous officer appointed in relation to the whole or any part of its undertaking, property, or assets;

(c) passes a resolution, or has an order made, for its winding-up (other than for the purpose of a solvent reconstruction or amalgamation); or

(d) enters into or proposes any composition or arrangement with its creditors.

Consequences of termination

9.6 Termination of the contract shall not affect the accrued rights and obligations of either party as at the date of termination.

9.7 The following clauses shall survive termination of the contract: clause 6 (Intellectual Property), clause 7 (Confidentiality), clause 8 (Guarantee, to the extent the Guarantee Period has not expired), clause 10 (Liability), and clause 15 (Law and Jurisdiction).

10. Limitation of Liability

10.1 Nothing in these Terms shall limit or exclude Hamtek’s liability for:

(a) death or personal injury caused by Hamtek’s negligence;

(b) fraud or fraudulent misrepresentation; or

10.2 Subject to clause 10.1, Hamtek shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:

(a) loss of profit;

(b) loss of business or revenue;

(d) loss of or damage to data; or

(e) indirect or consequential loss of any kind,

arising under or in connection with the contract.

10.3 Subject to clause 10.1, Hamtek’s total aggregate liability to the Client in respect of all losses arising under or in connection with the contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the total fees paid or payable by the Client under the contract.

11. Third-Party Services, Tooling, and External Dependencies

11.1 The Client acknowledges that some Project activities may require third-party manufacturing, tooling, testing, certification, or specialist services that Hamtek does not directly control.

11.2 Hamtek will act on the Client’s behalf when procuring such services, exercising reasonable care in selecting suitable third-party suppliers. However, Hamtek shall not be liable for delays, defects, or price changes arising from third-party suppliers, provided Hamtek has acted with reasonable care in their selection and management.

11.3 Any warranties or guarantees for third-party goods or services are limited to those provided by the originating supplier. Hamtek will use reasonable endeavours to pass through to the Client the benefit of any such third-party warranties.

12. Events Outside Our Control (Force Majeure)

12.1 Neither party shall be liable for any failure or delay in performing its obligations under the contract that is caused by an event outside its reasonable control, including but not limited to strikes, lock-outs, civil commotion, natural disaster, pandemic, failure of utility services, inability to source components or materials, or government actions (“Force Majeure”).

12.2 The affected party shall notify the other party as soon as reasonably practicable after becoming aware of a Force Majeure event, and shall use reasonable endeavours to mitigate its effects.

12.3 If a Force Majeure event continues for more than 60 days, either party may terminate the contract by giving written notice to the other. In such event, the Client shall pay Hamtek for all work completed and Pass-Through Costs incurred up to the date of termination.

13. Equipment and Client Materials

13.1 Where the Client provides Equipment or materials to Hamtek for use during the Project, the Client is responsible for ensuring that such items are adequately packed and insured during transit to Hamtek.

13.2 Hamtek will take reasonable care of the Client’s Equipment and materials while in its possession. Hamtek’s liability for loss of or damage to the Client’s Equipment while in Hamtek’s custody shall be limited to the lesser of the market value of the item at the time it was provided or the cost of repair.

13.3 Hamtek shall not be liable for loss of or damage to the Client’s Equipment caused by events outside Hamtek’s reasonable control.

13.4 Upon completion or termination of the Project, Hamtek shall return the Client’s Equipment and any unused Client materials within a reasonable time. The Client is responsible for collecting or arranging return transit.

14. Data Protection

14.1 Each party shall comply with its obligations under the UK General Data Protection Regulation and the Data Protection Act 2018 in relation to any personal data processed in connection with the contract.

14.2 Details of how Hamtek collects, uses, and protects personal data are set out in Hamtek’s Privacy Policy, available on Hamtek’s website.

15. Law and Jurisdiction

15.1 These Terms and every contract made pursuant to them shall be governed by and construed in accordance with the laws of England and Wales.

15.2 The parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

16. General

16.1 If any provision of these Terms is found by any court or relevant authority to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect. If any invalid provision would be valid if some part of it were deleted, that provision shall apply with the minimum modification necessary to make it legal, valid, and enforceable.

16.2 A person who is not a party to a contract made under these Terms shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of that contract.

16.3 No variation of these Terms shall be effective unless made in writing and signed by both parties.

16.4 A waiver of any right or remedy under the contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

16.5 These Terms, together with the Quotation and any documents expressly referred to in them, constitute the entire agreement between the parties in relation to the Project and supersede all previous agreements, understandings, and representations.

HamTEK Ltd — Fixed Cost Terms of Business — Version 2.0