1 General
a “The Company” shall mean Danfood Technology Limited or its proprietor subsidiary or any associated Company.
b “The goods” shall mean the equipment plant or services which are the subject of this Contract.
c “The Customer” shall mean the person firm or Company who contracts to purchase in full or in part the goods from the Company.
d Any contract entered into by the Company for the supply of goods is subject to these conditions. Any writing on or attached to any purchase order form document or correspondence shall not be included or implied unless previously agreed upon in writing and signed by an authorised officer of the Company.
e No order for supply arising from a quotation or otherwise shall be deemed to be accepted or constitute a legally enforceable contract with the Company until accepted in writing by the Company or until delivery of the goods which ever shall be the earlier.
f No responsibility is accepted by the Company for any inaccuracy or error in orders given by telephone.
2 Descriptions and Specifications
The descriptions, specifications and illustrations contained in catalogues price lists and other leaflets or descriptive matter produced by the Company shall not form part of the contract and no report representation or statement made by any servant or agent of the Company shall be binding on the Company. Names, addresses and trademarks on illustrations indicate ownership of the artwork and must not be taken as necessarily indicating the manufacturers. Any description or sample given of the goods is by way of identification only and does not constitute a sale by description or sample.
3 Time
Any date or period quoted by the Company for dispatch is given in good faith by way of estimate only. While the Company will endeavour to deliver within the period stated, such date or period is not to be of the essence of the contract and the Customer shall be bound to accept the goods when they become available. The Company shall not be liable for any loss or damage or delays in transit or consequential losses or losses including loss of profit resulting in any way in respect of late delivery howsoever caused even in such cases as the Company have expressly agreed in writing a delivery date, nor shall such failure to deliver on the date or within the period named be the Company be deemed to be a breach of contract.
4 Price
a All prices and terms quoted by the Company or shown in any of the Company’s price lists catalogues etc may be altered without notice.
b Prices of goods, both quoted and printed, are ex- warehouse and exclusive of VAT, packing, freight, postage, insurance, port rates, off loading and installation and other costs unless expressly specified to the contrary.
c The Company reserves the right at any time prior to delivery of the goods to adjust the price to take account of any increase in the cost of raw materials, labour or services or any currency fluctuations, increases of taxes or duties or any other matters affecting the cost to the Company in complying with the contract.
d The company reserves the right to impose a handling charge of not less than 15% on returned goods save in circumstances where the goods are returned by reason of defects or shortages which it is the Company’s duty under the terms of this Agreement to rectify.
e The Company reserves the right to impose a minimum order charge.
f Installation and commissioning will be quoted only against the specific request of the Customer. In all cases containers, bottles, packages and packing materials are chargeable and not returnable.
g The Company reserves the right to amend any accidental errors and omissions in quotations and invoices.
5 Payment
a Time for payment shall be of the essence.
b The Customer shall have no right of set off, Statutory or otherwise.
c The Company reserves the right at any time at its discretion to demand security for payment before continuing with or delivering any order.
d All accounts are payable in full on receipt of the goods unless expressly agreed in writing by the Company:
i For all credit accounts approved by the Company in writing for customers in the UK invoices are to be paid in full by the last day of the month following date of invoice.
ii For all customers outside the UK payment must be made by confirmed irrevocable letter of credit, payable at site, unless other terms have been agreed in writing by the Company.
e Where the goods are delivered in instalments or in the course of two or more separate deliveries any failure to make such payments due on or before the due date will entitle the Company at its option to treat the contract of sale as voided by the Customer and in such event the Company reserves all rights therein which may have accrued to the Customer prior to such termination.
f In the event of non-payment, late payment or other default by the Customer the Company shall be entitled to recover all legal costs thereby incurred together also with interest on the monies outstanding, calculated at 1 1/2 % per calendar month or part month compounded monthly.
6 Risk and the Passing of Property
a Risk in the goods shall pass to the Customer when the goods are delivered to or collected by the Customer or its agents.
b Title in the goods remains vested in the Company and shall only pass from the Company to the Customer upon full payment being made by the customer of all sums (due on whatsoever account or grounds) to the Company.
c Notwithstanding the above, the customer shall, until such time as title shall have passed to him, insure the goods to their replacement value noting the Company’s interest on the relevant insurance policy and the Customer shall forthwith, upon request, provide the Company with a certificate or other evidence of such insurance.
d The Customer agrees that whilst any such sums are due as aforesaid the Company may at any time enter upon the Customer’s premises and remove the Goods therefrom and that prior to such payment the Customer shall keep such Goods separate and identifiable for this purpose.
7 Inspection
a The Customer is under a duty to inspect the goods on delivery, or on collection, as the case may be.
b In circumstances where the Company undertakes delivery of the goods, claims for damage in transit or shortage in delivery of the goods will only be considered if the carriers and the Company receive written notification of such damage within three working days of delivery or in the event of loss of goods in transit within fourteen working days of the date of consignment. When goods are accepted from carriers without being checked the delivery book must be signed “Not Examined”. If access is not available to the location stated in the contract the Company or their carriers reserve the right to deliver to the nearest convenient location and to notify the Customer of their action.
c In all cases where defects or shortages are complained of, the Company shall be under no liability in respect thereof unless an opportunity to inspect the goods is afforded to the Company before any use is made thereof or any alteration or modification is made thereto by the Customer.
d Subject to clauses 7b and 7c, the Company shall make good any shortage in the goods and where appropriate will replace any goods damaged in transit as soon as it is reasonably able to do so, but otherwise shall be under no liability whatsoever or howsoever arising from such shortage or damage.
8 Warranty
a The Company warrants that it has title to and the unencumbered right to sell the goods. Such warranty specifically includes the Company’s ownership of the necessary patent rights and copyright sufficient to enable the Customer to use the goods for any purpose stated. However, nothing in these terms or otherwise shall be deemed to grant to the Customer the right to manufacture or in any way reproduce the goods or reproduce or use any intellectual property rights of the Company or its agents.
b No representation or warranty is given as to the suitability of the goods for any particular purpose and the Customer shall satisfy himself in this respect and shall be totally responsible therefor.
c Where the Company have produced or manufactured goods to the Customers design the Company shall not accept any liability for design errors.
d The Company shall remedy or at its sole discretion replace free of cost all mechanical parts which are to its reasonable satisfaction unusable or whose utility is seriously reduced within 12 months of the passing of risk (or if more than one shift of 8 hours per working day worked, within four months) of a result of faulty workmanship or material. Such Warranty is subject to the provisions of clause 7 hereof. It shall be at the sole discretion of the Company as to whether to undertake such remedial operations at the premises of the Company or at the Customer.
e Parts which are the subject of complaint by the Customer must be sent to the Company when requested. No liability is accepted for parts which are damaged or prematurely worn out as a result of natural wear and tear or faulty or negligent treatment, excessive loading or causes arising from any other part of the installation. No liability is accepted if parts other than those supplied by the Company are fitted. Parts replaced or improved are warranted to the same extent as the originals and the period of the warranty is conterminous with the warranty on the originals.
f In the case of any goods not manufactured by the Company but supplied by them or incorporated within the Company’s goods the Company is unable to provide any warranty but will where possible assign to or pass on to the Customer the benefit of any such warranty that the Company shall itself have received from its own supplier.
g In the case of services carried out by the Company it shall rectify any error or omission therein which shall have been notified in writing to the Company within the period specified and which shall have been proved to have been due to the neglect or default of the Company or its agents.
9 Insurance
Where goods are insured by the Company at its discretion or the request of the Customer charges will be made on the invoice. The Company’s liability under the insurance shall be limited to the amount received by them or the value of the goods, whichever is the less, and the Company shall be under no liability to take proceedings for the recovery of loss or damage.
10 Customers Tests
If the Customer requires tests or inspections to be made that are additional the Company’s standard procedures, the Customer shall be responsible for the costs incurred. The results of such tests will be certified to the Customer as required.
11 Storage
a In the event of the Company not receiving forwarding instructions within seven days of notification to the Customer that the goods are ready for dispatch such goods will be stored by the Company at the Customers risk and expense.
b The Company does not give warranty as to the fitness of any packing for storage purposes or any other purpose other than the transport of the goods to the named contract destination.
12 Installation of Equipment
a Where the Contract provides both for the supply and installation of equipment the Company shall be responsible only for the provision of those items and services specified in the invoice (order acknowledgement). All other ancillary equipment and services required together with all reasonable labour costs shall be the responsibility of the Customer.
b In the event that the Customer shall fail to provide all necessary power sources and other facilities required for the installation of the equipment the Customer shall be solely responsible for any additional costs or expenses incurred.
13 Liability
a Nothing herein shall be deemed to exclude or restrict the Company’s liability for death or personal injury resulting wholly from the negligence of the Company.
b The Company shall not be liable for any consequential or indirect loss suffered by the Customer whether this loss arises from a breach of duty in contract or tort or in any other way, including loss arising from the Company’s negligence. Non-exhaustive illustrations of consequential or indirect loss would be:
i loss of profits.
ii loss of contracts.
iii damage to property of the Customer or anybody else.
iv personal injury to the Customer or anybody else (except so far as such injury is wholly attributable to the Company’s negligence).
c The Customer hereby agrees to indemnify the Company against all claims made against the Company by any of the Customers employees, Customers or any other person for which liability would have been excluded by this clause if the claim had been made against the Company by the Customer.
d The Company shall not be liable in any way for any damages direct or consequential as a result of use of the goods for any purpose other than that agreed nor for any use not stated and agreed in the Company’s specifications nor for any fault or defect arising from the Customers failure to disclose relevant and pertinent information to the Company. Where the purpose of the goods is misrepresented or omitted the Company shall be under no obligation in any manner and responsibility and liability shall pass to the Customer.
14 On-site Facilities
a Where work or services on the Customers site is to be performed the Customer is to make all necessary provision for the safety comfort and convenience of Company personnel. This provision is to include:
i Toilet and washroom facilities.
ii Protective clothing that may be necessary by virtue of the Customers or his agent’s activities on site.
iii Electrical power for hand tools.
iv Telephone facilities.
v A competent representative to liaise with the Company personnel.
vi Information on site conditions and special regulations.
b The Customer must take all due care that is required by the Health and Safety at Work Act or any subsequent legislation.
c Where the Customer or his agent has undertaken part, or all, of the necessary installation work and such work is not in the opinion of the Company’s personnel to the required standard the Company shall not be liable to complete the contract and all expenses incurred by the Company will be payable by the Customer.
d All additional costs and expenses incurred as a result of the failure of the Customer to comply with the terms of this clause shall be payable by the Customer.
15 Repairs
The Company are not responsible for damage to goods sent to them for repair or examination nor for incidental damage to glass, apparatus and delicate instruments in the course of repair. Time involved in the preliminary examination of an article may be charged in the event of no repair being ordered. Goods returned for repair should be sent, carriage paid and be clearly labelled with the sender’s name and address. When or before the goods are sent advice shall be sent by fax or telex to the Company clearly indicating method of dispatch, description of goods and value for customs. At the same time a letter should be sent detailing the work required.
16 Drawings and Sketches
The Company reserves the right to charge for the preparation of drawings or sketches prepared either for the submission or any execution of orders. All such drawings remain the property of the Company.
17 Force Majeure
a The Company shall not be liable for any failure to deliver the goods arising from circumstances outside the Company’s control.
b Non-exhaustive illustrations of such circumstances would be Acts of God, war, riot, explosion, abnormal weather conditions, fire, flood, strikes, lockouts, Government action or regulations, delay by suppliers, accidents, shortage of materials, labour or manufacturing facilities.
c Should the Company be prevented from delivering in the above circumstances it shall give the Customer written notice of this fact as soon as reasonably practicable after discovering it.
d If the circumstances preventing delivery are still continuing six months after the Customer receives the Company’s notice then either party may give written notice to the other cancelling the contract.
e If the contract is cancelled in this way, the Company will refund any payment which the Customer has already made on account of the price (subject to deduction of any amount the Company is entitled to claim from the Customer) but the Company will not be liable to compensate the Customer for any further loss or damage caused by the failure to deliver.
18 Employment
The Company has an Equal Opportunities policy but nevertheless reserves the right to employ persons of their choice on all contracts including on-site work. Subject to this, the Company will use its best endeavours to co-operate with site agreements provided this does not conflict with their normal course of work.
19 Cancellation
a If the Customer shall fail to pay the contract price to the Company on the due date or, if an actual person, die or be the subject of an order under the Mental Health Act 1959, or if any distress or execution is levied upon the Customers property or assets or if the Customer shall offer to make any scheme or arrangement with creditors or commit any act of bankruptcy or, being a Company, has a receiver appointed for any part of its undertaking or assets or if a resolution for winding up shall be passed, then the Company may treat all sums due or to become due on any delivery as immediately payable or suspend or cancel further deliveries or require payment in advance therefor or recover any goods which are unsold wheresoever they are stored or treat the contract as repudiated by the Customer but without prejudice to any other rights of the Company.
b Cancellation of the order by the Customer for whatever reason shall entitle the Company to payment of all costs expenses and losses of the Company arising therefrom. Such notification of cancellation by the Purchaser shall not be deemed to have been accepted by the Company in the absence of specific agreement by the Company in writing to that effect. In all cases the Company reserves to itself any rights that it may have in law.
20 Notices
Any notice to be given hereunder shall be in writing and shall be deemed to have been duly given if sent or delivered to the Customer at its address specified in the order or such other address as that it may from time to time notify in writing and shall be deemed to have been served, if sent by first class post, forty-eight hours after posting.
21 Assignment
Neither the Company nor the Customer shall assign or transfer or purport to assign or transfer the contract or the benefits thereof to any other person without the prior consent of each other.
22 Proper Law and Jurisdiction
The contract shall be governed by and construed in accordance with English Law and all disputes arising in connection with the contract shall be submitted to the jurisdiction of the English Courts.