(1) In these conditions.
“the Seller” shall mean Hosokawa Micron Limited, whose registered office is at Rivington Road, Whitehouse Industrial Estate, Runcorn, Cheshire WA7 3DS.
“the Buyer” shall mean the person to whom the Goods (as hereinafter defined) are to be supplied.
“the Goods” shall mean all the goods specified in the Acknowledgement or Order (as hereinafter defined) with such changes (if any) as may be mutually agreed between the parties hereto or incorporated by the Seller pursuant to Clause 8 hereof.
“the Acknowledgement of Order” shall mean the Seller’s formal written acknowledgement of the Buyer’s order for the supply of the Goods which incorporates some or all of these Conditions; and
“the Contract” shall mean the agreement between the parties hereto comprising the Acknowledgement of Order, these conditions any other documents (or parties thereof) incorporated by reference in the Acknowledgement of Order and any terms and conditions relating to the erection and installation of the Goods mutually agreed in writing between the parties hereto subsequent to the Acknowledgement of Order in the event of any terms or conditions of the Contract being incompatible the latest to be considered by the parties hereto shall have precedence provided always that these conditions shall only be overruled by any express provisions in the acknowledgement of Order which are inconsistent herewith.
(2) Unless incorporated in the Contract by express reference in the Acknowledgement of Order any document or documents emanating from the Buyer which contains printed or standard conditions have been and will be sent by the buyer and received by the Seller on the understanding that such conditions appear on the Buyer’s documents because they are printed thereon but have no legal effect whatever, and the Buyer waives any rights which the Buyer otherwise might have to rely on such conditions.
The Seller shall sell and the Buyer shall buy the Goods on the terms and conditions of the Contract. The Contract contains the entire agreement between the parties relating to the sale of the Goods and supersedes all prior written or oral communications between the Seller and the Buyer. The Buyer acknowledges that it does not place and has not placed any reliance on any representations, agreement, statements or undertakings (oral or in writing) made prior to the Acknowledgement of Order other than those expressly incorporated in the Acknowledgement of Order. The Contract may not be released or modified in any manner except by an instrument in writing signed by duly authorised representatives of both parties.
It shall be a condition of the Contract that neither the Goods nor any part thereof shall, without the Seller’s written consent, be exported from the United Kingdom. It is a further condition of the Contract that upon any resale or other disposition by which the Buyer ceases to be possessed of the Goods or any part thereof that the Buyer will procure that any person who is or will be possessed of the Goods or any part thereof shall be bound in this contract with the Buyer by a condition similar in substance to this condition, provided that notwithstanding the foregoing, the Goods, if built into any composite product assembled in the United Kingdom may be exported therefrom, without restriction hereunder, if the entire such exported as separate units. It is hereby further provided that notwithstanding any of the foregoing conditions nothing in this Clause shall prevent the Buyer, or any person acquiring the goods from the Buyer hereunder, from Exporting then into the United States of America or into countries or territories forming part of the European Economic Community.
If before all the moneys payable under the Contract are paid, the Buyer (being an individual or individuals) shall be the subject of a receiving order in bankruptcy or shall make any assignment or deed of arrangement for, or any composition with creditors generally, or (being a company) shall become the subject of a winding-up or administration or of the appointment of a receiver, administrative receiver or receiver and manager, or shall make any arrangement with its creditors generally, or if any execution is levied or any distress is threatened or made at any premises occupied by the Buyer, or if the Buyer ceases to carry on business, then without prejudice to the rights of the Seller to exercise any other remedies, the Seller shall be entitled to rescind the Contract by giving written notice to the Buyer.
Should the seller directly or indirectly be prevented from carrying out its obligations under the Contract before or after the due date for delivery owing to lock-outs, strikes, work slow-down, labour troubles causing cessation or dislocation of work, or owing to riots, insurrection, mutiny, civil commotion, loss, damage, detention or delay caused by fire, explosion, storm, flood, tempest, Act of God, war, the action or legislation of any Government, accident, epidemic, quarantine restrictions, accident in the course of test, malicious act of third parties, railway embargoes, delay in delivery of materials by a third party, failure after due and timely diligence to obtain any materials or part not of the Seller’s manufacture to be incorporated in the Goods, failure of the Buyer to comply with its obligations relating to payment or the supply of information under the Contract or any other cause whatsoever whether or not of a similar nature to the foregoing which is not within the control of the Seller, (whether in the Seller’s business or that of any of its suppliers or sub-contractors) the Seller reserves the right (without prejudice to any other rights it may have) in its absolute discretion and at the Seller’s election to do one or more of the following:-
(a) To suspend or delay despatch or delivery of the Goods until such time as it may be reasonably practicable to despatch or deliver the same;
(b) To use substituted materials for any specified in the Contract provided that such substituted materials are in the Seller’s view an adequate substitute for the materials so specified;
(c) To cancel the Contract or any uncompleted portion thereof and on such cancellation neither party shall have any claim of whatever nature against the other save in respect of work done and services rendered in relation to the goods delivered prior to such cancellation.
The Buyer shall not have the right to terminate the Contract by reason of the Seller being prevented from carrying out its obligations under the Contract owing to any of the above-mentioned events.
In the event of:-
(a) the Seller demanding any of the information, drawings, documents, authorisations or consents referred to in Clause 10, or if the Seller has agreed to arrange delivery of the Goods, sufficient forwarding instructions to enable the Seller to despatch the Goods or any of them and not receiving the same within 28 days of the said demand, or if the Buyer is responsible for the collection of the Goods, the Buyer failing to collect the Goods or any of them within 28 days of the Seller demanding that the Buyer should make the said collection or
(b) the Buyer failing to pay in full the whole or any part of the price payable under the Contract when due the Seller shall be released from the Contract and shall be entitled to re-sell the Goods or any part thereof without notice to the Buyer and to recover from the Buyer any loss occasioned by the Buyer’s default. The rights conferred on the Seller in this Clause shall not prejudice any other right it may have under the Contract or any common law or statutory remedy which the Seller may have.
(1) All sketches, drawings, descriptive matters, weights, dimensions and shipping specifications provided by the Seller and the descriptions and illustrations contained in the Seller’s catalogues, price lists and other advertising matter are approximate only, and are intended merely to represent a general idea of the Goods and shall not form part of the Contract.
(2) All tenders, plans, drawings, specifications and other documents supplied by the Seller to the Buyer are the Seller’s copyright and remain the property of the Seller and must not be reproduced or disclosed to any third persons or used except for the purpose of implementing the Contract and must be returned to the Seller on demand.
(3) All patent copyright and design rights to the Goods or any part thereof shall remain the property of the Seller.
Notwithstanding anything to the contrary contained in these Conditions, or mutually agreed in writing between the Seller and the Buyer, the Goods or any part thereof may be altered by the Seller or the manufacturer thereof without the Buyer’s prior consent to incorporate such changes as the Seller or manufacturer considers necessary to correct defects, improve the Goods or to make the Goods safer, prevent delay or ensure compliance with these Conditions and which have no materially adverse effect on any of the matters which might affect any application to which the Seller is aware that the Buyer wishes to put the Goods provided always that the Seller shall notify the Buyer of such changes if, in the opinion of the Seller, they alter materially the specifications of the Goods.
Unless otherwise expressly provided in the Acknowledgment of Order
(a) the price stated therein in respect of the Goods is calculated ex the Seller’s works and excludes all packing, carriage loading, unloading, transport, insurance and other ancillary costs and all taxes (including VAT) and duties. The Seller will arrange packing, carriage and insurance against usual transit hazards at the Buyer’s written request but at the risk and expense of the Buyer.
(b) the Seller reserves the right to amend the said price to cover any increase in costs and/or expenses of the Seller arising between the date of the Acknowledgement of Order and the despatch of the Goods to the Buyer or which may arise out of special requirements not indicated in the Buyer’s order and it is agreed that the Seller’s written certificate shall be conclusive evidence of any such increase and of the extent thereof.
(c) the Buyer shall not be released from the Contract by any increase in the said price or in duties or taxes to be paid by the Buyer whether arising before or after the making of the Contract.
(d) charges for cases and packing materials will be credited to the Buyer if returned in good condition carriage paid and the Seller duly advised within 14 days.
(1) Any times quoted for completion, delivery, despatch and, where applicable, for erection and installation are to be computed from the date specified for that purpose in the Acknowledgement of Order, and after the Seller has received all necessary information and drawings to enable the Seller to put the work in hand together with all documents, licences and other authorisations and consents to be obtained by the Buyer and the Buyer has paid any initial payment and secured his or its finance for the purchase to the satisfaction of the Seller.
(2) Such quoted times are to be treated as estimates only notwithstanding any express undertaking as to delivery and, where applicable, erection, and installation and shall not be of the essence of the Contract nor involve any contractual obligation on the Seller’s part. Delivery shall be deemed to be effected when the goods have left the Seller’s factory or the Buyer has been notified that the Goods are ready for despatch.
(3) Without prejudice to the foregoing provisions of this Clause and notwithstanding any express undertaking as to delivery the Seller shall be entitled to a reasonable extension of time without payment of any agreed liquidated damages should completion, despatch or delivery or, where applicable, completion of erection and installation be delayed by reason of the Buyer’s failure to perform his or its obligations under the Contract or the Buyer’s omission to give the Seller necessary instructions, or by reason of the Seller confirming with any written instructions given by the Buyer, or by reason of any of the matters referred to in the first paragraph of this Clause or for any other reason solely or substantially attributable to the Buyer.
SUSPENSION OF WORK
Notwithstanding that the Buyer if not entitled hereunder to require the manufacturer of the Goods to suspend work, should the Seller accede to any request from the Buyer to that effect, the price payable to the Seller under the Contract shall be increased to cover any extra costs and/or expense incurred by the Seller as a direct or indirect consequence of any such suspension. Likewise, the said price shall similarly increase if work is suspended as a consequence of the Buyer’s failure or omission to perform his obligations hereunder. In no case shall the Seller be liable to the Buyer for any direct or indirect loss suffered by the Buyer as a result of any suspension made at the request of or in consequence of any such failure or omission by the Buyer.
Erection and installation of the Goods is not included in the price unless specified in the Acknowledgement of Order or mutually agreed in writing between the parties hereto subsequent to the issue of the Acknowledgement of Order and when erection and installation is to be carried out by the Seller it will be upon the terms and conditions expressly relating to erection and installation agreed between the buyer and the Seller, which terms and conditions if applicable shall form an integral part of the contract.
Notwithstanding the provisions of Clause 19 hereof the Seller and the Buyer expressly agree that until the Seller has been paid in full for the Goods:
(a) property of the Goods shall remain in the Seller and the Goods shall be received and held by the Buyer as agent and bailee for the Seller and the Buyer shall store the Goods without charge to the Seller in such a manner that they are clearly identified as the property of the Seller.
(b) the Seller may recover all or any of the Goods from the Buyer without notice at any time they are in the possession of the Buyer and for that purpose the Seller and its servants and agents may enter upon any land or building upon which the Goods are situated.
(c) without prejudice to the foregoing provisions of this Clause the Buyer has the right to dispose of the Goods but only for the account of and as agent for the Seller and in the event of such disposal, the Buyer has the fiduciary duty to the Seller for the proceeds over the total amount outstanding under this any other sale contract between the parties hereto.
(d) The Buyer shall without charge to the Seller ensure that the Goods and any products in which they are incorporated are kept in good condition and repair and shall keep such goods and products insured against all risks to their full replacement cost under a policy which provides for all moneys payable thereunder to be paid to the Seller as agent for the Buyer for the purpose of satisfying from such moneys any outstanding claims by the Seller against the Buyer and paying the balance (if any) to the Buyer.
The Buyer shall be deemed to have accepted the Goods or any of them immediately the same are delivered into the Buyer’s possession or that of any person, firm or company authorised by the Buyer to take such possession whereafter the Buyer shall not be entitled to reject the same.
If despatch of the goods is delayed by any act or omission of the Buyer and the Buyer does not arrange promptly for the Goods to be stored elsewhere the Seller shall be entitled to arrange for the Goods to be stored at the Buyer’s risk and the Buyer shall indemnify the Seller against all costs and expenses arising out of such storage. Further, if the Goods are stored at the Seller’s premises the Buyer shall pay the current charges for the same. Charges for such storage shall be paid at the rates in the manner provided for in the next following clause.
(1) Any terms of payment specified in the Acknowledgment of Order shall apply. Subject to any such terms payment of all sums payable under the Contract shall be made in full when the Goods are ready for despatch. Any further sums which shall become due to the Seller over and above the terms specified in the Acknowledgement of Order, however arising, shall likewise be paid at the time when the Goods are ready for despatch or, if arising after that time, be payable on demand.
(2) If for any reason the Buyer is unable or unwilling to take delivery when the Goods are ready for despatch of or if delays of any account arise through causes beyond the Seller’s control, or if there be minor defects in the Goods which do not substantially affect their commercial use, then payment shall not be withheld or deferred. In the event of special terms for payment having been arranged, then each of the respective instalments shall be paid by the date stipulated and agreed.
(3) In all cases time of payment shall be of the essence of the Contract.
(4) Should it be necessary for any reason to despatch any major item comprised in the Goods separately this will be invoiced and the invoice will be payable by the Buyer when such item is ready for despatch notwithstanding that any other items comprised in the Goods not essential for the work in hand shall not be ready for despatch or have not been despatched.
(5) Unless otherwise indicated in the Acknowledgment of Order all payments shall be in Sterling by cash cheque bill of exchange or bank transfer, letter of credit to Rivington Road, Whitehouse Industrial Estate, Runcorn, Cheshire, WA7 3DS, to the Seller at The National Westminster Bank Plc, 53 High Street, Runcorn, Cheshire, Sort Code 60-18-06. Account No. 93601905 free of any deductions whatsoever. Cheques and bills of exchange are to be treated as payment only after honour and the Seller shall not be responsible for presenting or protesting the same in due time. All discounts and transfer charges shall be for the account of the Buyer.
(6) Without prejudice to the Seller’s rights for immediate payment there shall be paid to the Seller interest on any sum payable to it in accordance with the agreed terms of payment at the rate of 4% above the base lending rate of The National Westminster Bank Plc from the time to time computed from the date at which such sum becomes payable until the date of actual payment.
(7) If the Buyer fails to make any payment within 4 weeks of the due date for that payment all sums payable to the Seller under the Contract and any other contract between the Buyer and Seller shall become immediately due for payment without regard to the time of payment of any outstanding bill of exchange or other deferred terms for that contract. In the event of such failure as aforesaid the Seller may in addition require payment in advance of any amount outstanding or to become payable under the Contract and of any such amount under any other contract between the Buyer and the Seller without regard to the terms of that contract.
(8) Without prejudice to the provisions of Clause 19 all liability of whatsoever account of the Seller under the Contract is subject to the above mentioned terms of payment and in particular and without prejudice to any other right it may have the Seller may postpone the performance of all or any of its obligations under the Contract whilst any amount due from the Buyer to the Seller remains unpaid.
(9) The Buyer shall not be entitled to withhold or set off payment for the Goods for any reason whatsoever.
Subject to Clauses 18, 22 and 24 the Seller expressly guarantees for a period of 12 calendar months (in respect of single shift operation) and 6 calendar months (in respect of multi shift operation), computed from the date of despatch of the Goods from the Seller’s works to repair or replace any defective parts in the Goods, the defect in which part has developed under proper use and arises solely from faulty material or workmanship, provided that the Seller’s responsibility under this Clause shall be limited to the cost or repairing the part or the cost of the replacement part and delivery as mentioned in the second sentence of this Clause and the Buyer shall indemnify the Seller against all other costs incurred by the Seller in repairing or replacing the part including but not limited to any labour costs and expenses incurred in diagnosing the effect or refitting the part or replacement . Repaired or new parts will be delivered to the Buyer at the place of destination on the British mainland specified in the Acknowledgement of Order.
(1) The Seller does not exclude liability for damages for death or personal injury resulting from negligence proved against the Seller in the performance of its duties under the Contract.
(2) Subject to Clause (1) of this Clause the Seller’s total liability whether in contract tort or otherwise and whether in respect of one claim or in the aggregate shall be limited to the amount of the purchase price of the Goods payable under the Contract.
(3) Subject to sub-clause (1) of this Clause the Seller shall not be liable in any event at any time for any indirect or consequential loss or damage (including but not limited to any loss of production or of profits) howsoever caused suffered by the Buyer or any other person firm or company. The Buyer shall keep the Seller fully and effectively indemnified against all or any liability mentioned in the last preceding sentence.
(4) Without prejudice to the foregoing provisions of this Clause the Buyer shall in particular keep the Seller indemnified against any liability (including liability under the Consumer Protection Action 1987) the Seller may incur at any time whether in tort or otherwise to any person whatsoever in respect of any defect or failure of the Goods or any part thereof or replacement thereto howsoever caused.
(5) Each of the preceding sub-clauses of this Clause shall be deemed to be separate and severable and enforceable accordingly.
Subject to Clause 15 the risk in the Goods or any part thereof shall pass from the Seller to the Buyer immediately the same are deemed to have been delivered under the provisions of Clause 10 irrespective of any duties which the Seller may have undertaken with regard to packing, delivery, erection, installation or assembly.
If the Buyer makes default or commits any breach of its obligations to the Seller then the Seller shall immediately become entitled (without prejudice to any other rights or claims which it may have) to suspend further performance of or to terminate the Contract.
The responsibility for insuring the Goods after the risk in them has passed to the Buyer shall be that of the Buyer.
The Seller shall not be liable for loss or damage to the Goods after the risk in them has passed to the Buyer.
(1) Insofar as the Goods or any part thereof are the subject of any patent rights belonging to the Seller the Seller grants the Buyer under such patent rights to use the Goods in the normal and intended manner but not otherwise.
(2) The Seller shall not be liable to the Buyer in respect of any loss or damage whatsoever (included but not limited to loss of profits in respect of or occasioned by any loss of use in the Goods) resulting from the infringement or alleged infringement of any copyright patent or registered design by the Goods or any part thereof.
(1) In respect of any part of the goods not manufactured by the Seller in relation to which the supplier of that part accepts liability to the Seller more restricted than the liability of the Seller to the Buyer under Clauses 17 and 18 above or under any guarantee condition warranty or other obligation the said Clauses guarantee condition warranty or obligation shall apply subject to the proviso that the liability of the Seller in respect of such part shall be further restricted in the same terms as the liability of the supplier to the Seller as restricted Provided Further that such proviso shall not apply if as a result of such application any restriction or exclusion of liability by the Seller is unenforceable.
(2) Without prejudice to the generality of the remainder of the Contract the Seller shall not be responsible for ensuring that any combination of equipment included in the Goods of which all or part has been selected or nominated by the Buyer and not manufactured by the Seller is in any way satisfactory or fit for the purpose for which it is intended and the onus of ensuring this shall be on the Buyer.
The Buyer undertakes to ensure that it and all of its servants and agents will observe all safety and technical instructions in the Seller’s or manufacturer’s operating manual’s bulletins and other directions.
In the event of any dispute arising out of the Contract the Buyer and the Seller undertake to make every effort to reach an amicable settlement. Failing such settlement, the dispute shall be referred to the Arbitration in London of a single Arbitrator to be agreed upon by such parties or in default of agreement for 28 days, to be appointed by the president for the time being of the institute of Arbitrators, upon the application of either such party. Such Arbitrator shall have the powers conferred upon him by the Arbitration Act 1950, or any statutory amendment or re-enactment thereof for the time being in force, and his decision will be final and binding upon both such parties.
The validity extent and performance of the Contract and any variation thereof, or any agreements entered into by the parties hereto ancillary to the Contract shall be governed by English Law. Insofar as the Buyer is not already subject to the jurisdiction of the English Courts, it shall subject to Clause 26 be deemed to submit itself to the jurisdiction of the English Courts herby. Subject to the provisions of Clause 26 no action or proceeding in relation to the Contract or arising therefrom shall be initiated against the Seller except in the Courts of England.
The Buyer may not assign the Contract or any rights thereunder without the consent of the Seller.
Where these terms and conditions provide that a notice from either party to the other is required, such notice must be served in writing and conveyed by the fastest reasonable means, having regard to the content thereof, it being understood that normally such a notice could be sent by pre-paid registered letter post, provided that where there is in these Conditions a specified period within which such a notice is to be given to ensure its validity, such notice must reach the party to whom it is addressed within the period stipulated.
The Incoterms in force at the date of formation of the Contract shall apply save to the extent they are inconsistent with any of the terms of the Contact.
Clause headings have been inserted in these Conditions merely to facilitate reference and shall have no bearing on the interpretation of any of the provisions.