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In these Conditions, the following expressions shall have the following meanings :-
(a) “the Company” – Hosokawa Micron Limited;
(b) “the Supplier” – any person, firm or company with whom the Company contracts for the supply of goods, work or work and materials or services;
(c) “Order” – any order or request by the Company to the Supplier made in writing on the Company’s Order Form for the supply of goods work or work and materials or services.
Each and every Contract (“the Contract”) made between the Company and the Supplier pursuant to an Order shall be subject to and incorporate in their entirety these Conditions and all other terms of the Contract shall be those contained expressly or by reference in the Order to the exclusion of any other terms and conditions on which any quotation has been given to the Company or subject to which the order is accepted or purported to be accepted by the supplier.
All goods, work or work and materials or services or packaging or packing supplied or used in pursuance of the Contract shall be of the highest quality and suitable in every respect for the purpose for which they are required and shall correspond in every respect with any sample, patent, specification, description or drawing relating thereto. The Supplier shall also ensure that the goods, work or work and materials or packaging, packing or delivery or services will comply in all respects with all relevant regulations (whether statutory or otherwise) or other legal requirements relating thereto.
The Company shall be entitled to reject any goods and materials supplied and work and services performed under the Contract which are not in accordance with the Contract and shall not be deemed to have accepted any goods and materials used and work and services performed until the Company has had a reasonable time to inspect them following delivery of it later within a reasonable time after any latent defects in such goods and materials supplied and work and materials performed have become apparent and any goods or materials or work rejected by the Company shall remain at the company’s premises or on any other location or site to or at which the goods work or work and materials were delivered or performed (as the case may be) at the Supplier’s risk.
The Company, its servants or agents shall be entitled to inspect and examine all goods, work o, work and materials or services being produced, supplied or performed pursuant to the Contract and for this purpose the Supplier shall afford the Company, its servants or agents access at all reasonable times in normal working hours to the Supplier’s premises or any other locations or sites where the goods work or work and materials or services are being produced, supplied or performed (as the case may be). If upon any such inspection, any goods, work or work and materials or services shall be found to be defective or not in accordance with the Contract, the Supplier shall forthwith at his own expense make good such defect and/or ensure that the goods, work or work and materials or services (as the case may be) comply in all respects with the Contract. Approval by the Company, its servants or agents of the goods, work or work and materials or services pursuant to this condition shall not be deemed to be acceptance of the same for. the purposes of the preceding Condition 4 hereof.
All drawings, designs, specifications and other technical documents and samples supplied by the Company to the Supplier for the purposes of the Contract shall remain the exclusive property of the Company and the Supplier shall not without the prior written consent of the Company copy, reproduce, transmit or communicate the same to any third party and the supplier shall procure that its employees, servants and agents shall also comply with this condition.
(a) Where any goods are manufactured or work or work and materials are supplied by the Supplier specifically in accordance with the Company’s designs, drawings and specifications, the Company shall indemnify the Supplier against any and all claims for infringement of patent trade mark, registered design copyright or other proprietary or industrial property rights made against the Supplier in respect thereof.
(b) In any case, the Supplier warrants that the goods and materials supplied and work performed, will not infringe any patent, trade mark, registered design copyright or other proprietary or industrial property rights of any third party and will indemnify the Company against any and all claims made against the Company in respect thereof.
Unless otherwise agreed in writing, the Supplier shall bear the risk of loss, destruction or damage to any goods work and materials until in the case of goods delivery is effected in accordance with Condition 10 hereof at the place of delivery specified in the Order or otherwise as directed by the Company or in the case of work or services the completion thereof to the Company’s satisfaction. The property in such goods and such materials shall pass to the Company on delivery thereof or upon completion of the work or services as the case may be.
If specified in the Order by the Company, the Supplier shall submit samples for approval and the bulk of the Order shall not be started until the Company has communicated its approval in writing. The Company may retain the samples until the Order is completed or the whole of the goods, work and materials delivered.
(a) Time shall be of the essence of each and every Contract and delivery or performance must be effected within the time specified in the Order failing which the Company reserves the right to rescind the Contract and recover from the Supplier any direct or consequential loss thereby incurred. Delivery shall only be effected under the Contract when the goods or work and materials are received at the Company’s works or on site (as the case may be) by the Company’s duly authorised representative and the signature of such representative on the Supplier’s delivery advice note only shall be evidence of such delivery.
(b) Notwithstanding the provision of sub-clause (a) of this Clause the Company shall be entitled to regulate the rate of delivery or performance of the goods, work or work and materials or services by means of delivery schedules. The Company shall be entitled to amend or update any delivery schedule upon giving reasonable notice in writing to the Supplier. If the Supplier fails to accept and comply with any reasonable delivery schedule or any amendments thereto submitted by the Company, the Supplier shall be deemed to be in breach of the Contract and shall pay to the Company as damages for the breach all costs and expenses incurred by the Company as a result thereof and in particular but without prejudice to the generality of the foregoing all sums expended by the Company in securing alternative supplies of all or any of the goods, work or work and materials or services specified in the Contract (including any sum expended by reason of any increase in the price thereof) and any loss suffered by the Company as a result of delays in its production.
(c) Unless the Company expressly agrees otherwise in writing, all goods and materials supplied are to be delivered by the Supplier carriage paid to the address for delivery specified in the Order.
All goods, work and materials are to be invoiced at the prices ruling at the date of and as specified in the relevant Order No variations in the Contract price will be accepted by the company unless any variations are agreed in writing by the Company. Subject to any terms for payment contained or referred to in the order (including any terms in respect of retention of payments) the Company shall pay the Contract price on nett monthly account terms, or, if later, after acceptance of the relevant goods, work and materials.
The Company may cancel any Order (notwithstanding that the Supplier shall have accepted the same) or delay the delivery of any goods or completion of any work and shall not thereby incur any liability in respect thereof if owing to any cause beyond the Company’s control the Company has no need of the goods, work or materials or some part thereof or is unable to take delivery of such goods or to afford to the Supplier access to the site where the work is to be performed provided that in the event of cancellation the Company will reimburse to the Supplier such of the Supplier’s reasonable costs and expenses as the Company shall be able to recover from any third party.
The company shall be entitled to apply any moneys due to the Supplier under any Contract in or towards payment of any sum owing by the Supplier to the Company in relation to any matter whatsoever. For this purpose reference to the “the Company” and “the Supplier” include any company which is for the purpose of the Companies Act 1985 a subsidiary or holding company or a subsidiary of a holding company of the Company or the Supplier respectively.
Where any work or services are to be undertaken or supplied by the Supplier otherwise than at the Supplier’s premises, the Supplier shall adequately insure against all Employer’s Liability and Third Party Risks, including Third Party Fire risks arising out of or in connection with the execution of such work and/or the performance of such and shall produce to the Company on demand the policies of such insurances together with the receipts for premiums if requested. In the event of the Supplier failing to effect such insurances the Company shall be at liberty to insure on behalf of the Supplier and to deduct the amount of any premium so paid by the company from any amounts due to the Supplier under the Contract. In addition, the Supplier shall also indemnify and adequately insure the Company against all claims and all costs in respect of any injury loss or damage to persons or property caused by the works or services carried out or performed by the Supplier or by the execution thereof or by its workmen, It is a condition of the Contract that tile Supplier’s employees servants and agents become acquainted and comply with the fire precaution and regulations in existence on any site where any work is to be carried out or services performed.
All materials, tools, plant, machinery and buildings of the Supplier, the subject of or used in connection with the Contract whether at his workshop or on site shall be at the Supplier’s risk for every description of loss or damage (except as hereinafter provided) and it shall indemnify and adequately insure the Company against all claims in respect thereof. In the event of loss or damage caused by fire, storm, tempest, lightning, flood, earthquake, aircraft or anything dropped therefrom aerial object, riot or civil commotion to any work or materials properly upon any site the Supplier shall if and when directed by the Company in writing proceed immediately with the rectification or replacement of the damaged work and materials and the erection and completion of the works in full accordance with the terms provisions and conditions hereof.
The Company may without prejudice to any other rights or remedies available to either party summarily determine the Contract in respect of the whole or any part of the goods, work or materials or services in the event that the Supplier:-
(a) commits a breach of the Contract or of any other of its obligations to the Company thereunder; or
(b) is unable to pay its debts in the ordinary course of business as they fall due; or
(c) has any distress or execution levied upon any of its property or assets; or
(d) makes or offers lo make any arrangement or composition with its creditors or commits any act of bankruptcy or if any petition or receiving order in bankruptcy is granted or made against it or any one of a number of individuals comprising the Supplier or (if the Supplier is a limited company) any resolution or petition to wind up its business (otherwise than for purpose or reconstruction or amalgamation) is passed or presented or a receiver of its undertaking property or assets or any part thereof is appointed. Upon the termination of the Contract pursuant to this Condition the Supplier shall not be entitled to any compensation in respect thereof but shall forthwith supply to the Company such of the Contract goods or work or work and materials as have been finished against payment by the Company therefore in accordance with the Contract, the Company being entitled to deduct from any sums due to the Supplier under this condition the amount of any additional costs and expenses incurred by the Company in completing the work or services or obtaining replacement goods.
The Supplier hereby undertakes to indemnify the Company and al all times to keep the Company fully and effectually indemnified against all costs, claims, damages and expenses incurred by the Company (including any liability or loss incurred by the Company resulting from the failure of or stoppage of or interference with the production of any equipment, goods or stock) In connection with or resulting directly or indirectly from:-
(i) the negligent performance of the Contract by the supplier, its servants or agents;
(ii) any faulty design workmanship or materials in respect of or relating to any goods or materials supplied or work performed under the Contract;
(iii) any claim that the goods supplied infringe the patent, copyright, design right, trademark or other intellectual property rights of any other person; and
(iv) any liability (including liability under the Consumer Protection Act 1987) the Company may incur at any time to any person whatsoever as a result of any defect or failure of any goods, replacement goods, work or work and materials or services or packaging or packing supplied or used in pursuance or the Contract.
The Contract shall be governed by and construed in all respects in accordance with the laws of England.
