EQUIPMENT AND PARTS TERMS AND CONDITIONS
1.1 In these conditions, the following expressions shall, unless the context otherwise requires, have the meanings given to them respectively:
Hobart UK a division of ITW Limited (Registered in England and Wales with Registration Number 559693) including its successors and assigns;
Hobart UK's address, Hobart UK, Southgate Way, Orton Southgate, Peterborough, PE2 6GN
Hobart UK technician, a technician or engineer of or authorised by, Hobart UK including a sub-contractor or agent of Hobart UK;
Contract, the agreement constituted by Hobart UK's acceptance of the Customer's Order;
Customer, the customer named overleaf;
Customer order, the customer's order set out in this customer order form;
Customer's Premises, the premises situated at the customer's address overleaf or such other address as may be specified overleaf as the customer's address for delivery purposes;
Equipment, the equipment described overleaf;
Specification, the technical description (if any) of the equipment overleaf;
Installation, the installation (if any) specified overleaf, as may be amended by the parties in writing;
Overleaf, the face of this customer order form;
Purchase Price, the purchase price of the equipment, together with any Installation charges and special charges, as specified overleaf, and VAT at the applicable rate.
1.2 Words in the singular shall include the plural and vice versa and words in the masculine shall include the feminine and neuter genders.
1.3 Headings are for convenience only and shall not affect the interpretation of any provision.
2. THE CONTRACT
2.1 The customer's order is subject to acceptance by Hobart UK at its discretion. Acceptance shall take place by Hobart UK notifying its acceptance in writing either by post, facsimile, email or by delivery and, when posted, shall take effect on posting.
2.2 The conditions set out in this order form are the only conditions which shall apply to this contract. Without limiting the generality of the foregoing, and subject to Clause 2.3 below, no condition proposed or made by the customer shall apply to this contract or prevail over any of these conditions, notwithstanding any statement anywhere to the contrary.
2.3 No variation of these conditions shall be effective unless in writing, signed by or on behalf of the customer and Hobart UK.
2.4 If, following acceptance of the customer's order:
2.4.1 The customer cancels this contract in whole or in part, without prejudice to its other rights, Hobart UK shall be entitled to treat the same as a repudiation of this contract, to terminate this contract forthwith and to enforce its rights and remedies pursuant to such termination; and
2.4.2 The customer cancels part of this contract, Hobart UK shall be entitled to accept the same and to enforce its rights in respect of the remainder of this contract. Without prejudice to its other rights and remedies, Hobart UK may then charge the customer a sum in respect of such of the equipment as relates to the cancelled part of this contract and which may equate to the value of such Equipment manufactured, ordered or bespoken by or to the order of Hobart UK, dependent upon the stage of its production or manufacture at the time of cancellation and the ability of Hobart UK, to resell such cquipment, together with all costs, charges and expenses incurred by Hobart UK.
2.5 It is the customer’s responsibility to check that the equipment ordered matches the order acknowledgement.
2.6 Hobart UK cannot be held responsible for the quality of water supply, which can vary from region to region. Hard water causes scale build up. The use of a water softener or appropriate water treatment at all times is recommended. Scale related damage will not be covered under warranty. Please note some machines require specific water treatment units. Hobart UK do not accept responsibility if our recommendations are not adhered to.
2.7 It is the customer’s responsibility to adhere to all current gas and electrical regulations.
3.1 The customer shall pay to Hobart UK, at Hobart UK's address in Sterling without deduction, counterclaim or setoff:
3.1.1 The Purchase Price should be paid on or before the payment due date as shown overleaf;
3.2 Any amounts appearing in an invoice which are disputed must be notified to Hobart UK within 3 working days of the date of the invoice. Undisputed amounts must be paid by their due date. Time of payment is of the essence. Interest will accrue in accordance with clause 3.1.1 on any amount due to Hobart UK which has not been paid in full by the due date.
3.3 The Customer shall pay to Hobart UK all costs incurred by Hobart UK or charged by any debt collection agency employed by Hobart UK in collecting any payment due by the Customer to Hobart UK under this Contract.
4. DELIVERY, SHIPMENT AND ACCEPTANCE
4.1 Included in the purchase price is delivery using a standard three working day service to any UK mainland address. Additional charges will apply for any delivery outside UK mainland or any express, timed or overnight delivery.
4.2 Hobart UK will endeavour to deliver on the date requested but this date is an estimate only and will not bind Hobart UK.
4.3 Equipment should be checked on delivery and signed for by an authorised appointed representative of the company.
4.4 Damage to external packing must be pointed out to the carrier at the time of delivery and Hobart UK notified within 1 working day in writing.
4.5 Any product faults/defects/damages or shortages must be notified in writing within 3 working days of delivery. In the event of non-delivery of product, the customer must notify to Hobart UK, in writing, within 5 working days of invoice date.
4.6 No responsibility will be accepted, even within the three day period, if equipment is transported by others from the original delivered address.
4.7 In the event of any previously agreed delivery being refused or cancelled by the customer the re-stocking charge equivalent to 20% of the order value will be levied. In the event of refusal or cancellation of specially manufactured / bespoke product made on behalf of the customer the re-stocking charge will be 100% of the order value.
4.8 If a customer delays delivery beyond 30 days of the original requested date Hobart UK reserve the right to invoice the customer at the agreed price and store it at the customer’s expense and liability.
4.9 Your statutory rights are not affected by any of the above conditions.
4.10 Unless agreed otherwise in writing, where the equipment is to be shipped abroad, delivery will be made ex-works and all risk of loss, damage or destruction will pass to the customer at the ex-works point.
4.11 All invoices are payable within terms agreed.
5.1 All returns must be notified in writing and authorised by the relevant Hobart UK Manager prior to return with reason stated for such a return.
5.2 Non-authorised returns will not be credited.
5.3 Only returns of new unused equipment in the original packaging will be considered.
5.4 If authorised all returns will be subject to a 20% restocking charge. This charge covers return transport, inspection, quality assurance checks and re-warehousing.
6. CONDITION OF EQUIPMENT / GUARANTEE
6.1 Where the equipment is situated in the United Kingdom and fails or ceases to function within twelve months from the date of its delivery to the customer, as a result of any inherent electrical or mechanical defect in the Equipment, Hobart UK undertakes to repair or procure the repair of the equipment free of charge, provided that no alterations, additions or repairs have been made to the equipment by any person not authorised by Hobart UK. Hobart UK shall not be liable to the customer for any loss or damage to or failure of any consumables (including, without limitation, bulbs, thermocouples, dishwasher curtains and racks) used in connection with or forming part of the Equipment arising as a result of normal wear and tear.
6.2 Where the equipment has been purchased for resale Hobart UK may at its discretion extend the period of twelve months aforesaid to the shorter of the period of twelve months from the date of resale by the customer or twenty-four months from the date of its delivery to the customer for resale.
6.3 Where the customer is "a person dealing as consumer" (and the contract is not an international supply contract under section 26(3) of the Unfair Contract Terms Act 1977) the customer is entitled to his statutory rights and the exclusion in this sub-paragraph 6.3 shall not apply. In all other cases, all conditions, warranties, guarantees and representations, express or implied, whether by statute, at common law or otherwise (except for any implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Unfair Contract Terms Act 1977) relating to the equipment, are expressly excluded.
6.4 Without limiting the generality of the foregoing exclusions and limitations, except for death or personal injury caused by Hobart UK's negligence, Hobart UK shall not under any circumstances incur any liability to the Customer for any consequential loss or damage arising out of, or in connection with the equipment,
7. REPLACEMENT PARTS / GUARANTEE
7.1 All replacement parts supplied or fitted under this contract will be Hobart manufactured parts, or those of the original manufacturer of the original component, and where these are not available, such alternative parts as we, in our reasonable discretion, consider to be suitable.
7.2 Replacement parts will be covered by a guarantee of six months.
8. PASSING OF RISK AND TITLE
8.1 The equipment shall be at the risk of the customer immediately upon collection by the carrier. In the case of export, clause 4.10 will apply. The customer is required to insure the equipment at the customer’s expense on the passing of such risk.
8.2 The equipment shall remain the sole and absolute property of Hobart UK as legal and beneficial owner and title in the property shall not pass to the customer until the customer has paid to Hobart UK the purchase price and all other amounts referred to in clause 3;
8.3 Whilst title to the equipment remains with Hobart UK:
8.3.1 The customer shall hold the equipment as bailee for Hobart UK, separately and readily identifiable from the customer's own goods;
8.3.2 The customer shall not sell, transfer, charge or otherwise deal with the equipment except for the sale of the equipment in the ordinary course of the customer's business
8.3.3 The customer shall take all reasonable steps to prevent any damage to the equipment and shall insure the equipment against all insurable risks in the full amount of the purchase price. If the insurance becomes payable in respect of any claim whilst the purchase price remains unpaid in whole or in part, the purchase price shall become payable immediately by the customer to Hobart UK and until such time as payment is received by Hobart UK the customer shall hold any insurance proceeds on trust in a separate bank account for Hobart UK; and
8.3.4 In the event of the customer's default under clause 9.1 below, Hobart UK shall be entitled, without prejudice to its other rights, to enter the premises where the equipment is or is believed to be situated, to repossess and /or sell the same and the customer agrees to permit Hobart UK, its agents or representatives, to enter such premises for such purpose. This right and license shall continue notwithstanding the termination or cancellation of this contract.
9.1 The customer is responsible for obtaining all permissions, consents and authorisations required to be obtained for the installation of the equipment including, but not limited to, the consents of any Landlord, Local Authority and Statutory Body and any consents necessary in order to comply with building, health, safety and other rules or regulations. The customer shall also ensure that the premises on which the equipment is to be installed are in a safe condition and that Hobart UK, its employees and agents have full and free access to such premises, facilities and utilities as may be necessary to effect installation. It is the Customer’s responsibility to ensure that suitable services are available for the installation of the equipment ordered. If in doubt Hobart UK should be contacted prior to installation for advice.
9.2 Unless otherwise stated installation includes connection to suitable isolated services to within 1 metre of the machines location, during normal working hours to a clear and level site.
9.3 On completion of installation of equipment, the Hobart technician’s timesheet will be signed, and name and job title printed by the customer’s authorised member of staff to signify satisfactory installation. Any defects in the installation must be advised to Hobart UK within three working days.
9.3.1 Cancellation charges will be incurred at the following rates for abortive installations:
48 hours before – No penalty,
24 hours before - 25% of install cost
Same day – 50% of install cost.
9.4 Except for death or personal injury caused by Hobart UK's negligence, Hobart UK's liability for loss or damage (including but not limited to consequential loss or damage) in respect of the Installation shall be limited to that caused, and to the extent that it is caused, directly by the negligence of Hobart UK and/or a Hobart UK technician owing to defective workmanship or defective materials PROVIDED THAT Hobart UK shall not be liable for any loss or damage arising as a result of circumstances beyond Hobart UK's reasonable control or outside its knowledge and that Hobart UK's total liability in respect of any claim or series of claims or any occurrence or series of occurrences arising from the same event shall not exceed £100,000 or the Installation charge, whichever is greater.
9.5 Hobart UK shall not be liable for any loss or damage (including but not limited to consequential loss or damage) caused or related to any variation in any of the services connected to the equipment or appliances connected to the services.
9.6 The installation charges are as shown overleaf and are subject to Hobart UK having uninterrupted access for continuous working. The customer agrees to pay any additional Installation charges caused by the customer's failure to comply with these obligations.
10.1 If the customer fails or refuses to take delivery of the equipment or to make prompt payment of any sum referred to in clause 3 or has a receiving order in bankruptcy (or a sequestrian order) made against him or calls a meeting of creditors or has an administrator, liquidator, administrative receiver appointed over it or over its income or assets or passes a resolution for its winding up (otherwise than for the purpose of and amalgamation or reconstruction) then Hobart UK shall be entitled, without prejudice to its other rights, to treat this contract as repudiated by the customer, to terminate this contract forthwith and to enforce its rights and remedies pursuant to such termination.
10.2 If Hobart UK at any time considers that the customer is or may be unable or unwilling to pay the purchase price of the Equipment Hobart UK shall be entitled to withhold delivery of the Equipment or its Installation until receipt of payment of the purchase price and other sums referred to in clause 3.
10.3 Without affecting Hobart UK's rights, if any sum referred to in clause 3 is not paid by its due date, Hobart UK shall be entitled to charge interest on such sum at 2% above Barclays Bank base rate from time to time in force, from its due date until receipt of payment, whether before or after judgement.
Hobart UK shall be entitled to vary the purchase price if there is any change in the price of raw materials or any change of specification between the date of Hobart UK's quotation and the date of acceptance of the customer's order provided that Hobart UK shall notify the customer of such variation in the purchase price.
12. FORCE MAJEURE
Hobart UK shall not be in breach of its obligation under this contract if Hobart UK is unable to deliver or install the equipment in accordance with the contract owing to any event beyond Hobart UK's reasonable control. If such event continues for more than 21 days, Hobart UK or the customer may cancel this agreement on written notice provided that Hobart UK shall have no liability to the customer for such cancellation.
13. HEALTH AND SAFETY ACT
The customer's attention is drawn to the provisions of Section 6 of the Health and Safety at Work Act 1974 (as amended, re-enacted or extended). Hobart UK will make available on request information relating to the design, construction and installation of the equipment to ensure that, so far as is reasonably practicable, it is safe and without risk to health when properly used. The customer hereby undertakes to take such steps as are necessary to ensure that the equipment is safe and without risk to health and shall make available appropriate information about the equipment to its employees and to persons to whom it may supply the equipment.
14.1 Hobart UK reserves the right to request security for payment (of the purchase price and other sums referred to in clause 3) by way of guarantee, a registered charge, a banker's letter of credit or as it may otherwise require.
14.2 Any indulgence or waiver by Hobart UK shall not affect its strict rights against the customer.
14.3 Any notice of variation to the contract/order sent or delivered to the relevant party's address stated overleaf, or the party's last known business address by post, facsimile or e-mail shall be assumed to have been received 48 hours after posting and upon receipt of a fax confirmation in the case of delivery by facsimile.
14.4 In considering the customer's application for this agreement, Hobart UK may search one or more credit reference agencies, who will record details of such search and application and which will be seen by other organisations carrying out later searches. Hobart UK may add to the customer's record with credit reference agencies details of this contract, which will be used for the purpose of assisting with credit decisions, fraud prevention and tracing debtors. Unless the customer otherwise notifies Hobart UK at any time, Hobart UK may use information about the customer for marketing purposes. Hobart UK may also disclose information about the customer and this contract to any potential transferee or assignee of this contract, including their advisors and insurers.
14.5 Hobart UK shall not be responsible for, and shall be entitled to correct, any errors or omissions which may arise in respect of any particulars inserted overleaf.
14.6 The rights and remedies set out in these conditions are cumulative and shall be in addition to any other rights or remedies provided by the law.
14.7 If any provision of this contract is held to be invalid or unenforceable it shall be severable from and shall not affect the remaining provisions.
14.8 The customer may not assign this contract or any part, transfer, charge or otherwise deal or hold on trust for any person any right or obligation it has under this contract.
14.9 No term of this contract shall be enforceable by virtue of the contracts (Rights of Third Parties) Act 1999 by any person who is not party to it.
14.10 This contract shall be governed by English Law and the customer submits to the non-exclusive jurisdiction of the English Courts. Headings are for convenience only and shall not affect the interpretation of any provision. In the interpretation of this contract in Scotland words and expressions used in this agreement and not in common use in Scotland shall bear their nearest equivalent meanings.