JOHNSON CONTROLS HITACHI AIR CONDITIONNING EUROPE SAS - UK BRANCH - GENERAL CONDITIONS OF SALES (effective as of 22.09.2017)
In these conditions;
(1) "HITACHI" means: Johnson Controls Hitachi Air Conditioning Europe SAS, UK Branch, (registration no. FC030594), with registered office located at Whitebrook Park, Lower Cookham Road, Maidenhead, SL6 8YA, United Kingdom.
(2) "Buyer" means: the person, firm or company specified overleaf, to whom HITACHI's Quotation, Sales Confirmation or Invoice is addressed.
(3) "Goods" means: the goods to be sold by HITACHI to the Buyer under the Contract.
(4) Contract" means: the contract of sale hereby formed between HITACHI and Buyer.
2. CONSTRUCTION OF CONTRACT
(1) The terms of the Contract shall consist of the particulars overleaf and these conditions. Any term overleaf which is at variance with these conditions shall prevail over these conditions, which shall be construed accordingly, except with regard to price in respect of which provisions of sub clause 6 (2) shall prevail.
(2) No other terms (whether contained in any document issued by the Buyer or in any written or oral communication between the parties) shall apply to the Contract nor shall these conditions or the particulars overleaf be modified without HITACHI's written agreement.
3. QUOTATIONS AND ORDERS
(1) Unless accepted before lapse or withdrawal, or renewed in writing by HITACHI, quotations shall lapse automatically after 60 days, but may be withdrawn earlier by HITACHI.
(2) Quotations are for information only and are not firm offers. There shall be no binding contract until HITACHI has accepted the buyer's order by dispatching HITACHI's official sales confirmation.
(1) The scope of supply by HITACHI under the Contract shall be strictly limited to those specified overleaf, and no other goods or services are included.
(2) HITACHI will use all reasonable endeavors to deliver the Goods on or before the delivery date specified overleaf, however, HITACHI does not undertake, guarantee or warrant that delivery will be made on the delivery date specified.
(3) Any such delivery date specified shall be extended by any period or periods during which the manufacture or delivery of the Goods or other work by HITACHI in connection with this Contract is prevented, hindered, delayed or rendered uneconomic by reason of a Force Majeure Event (as defined in clause 18 below).
(4) The Buyer acknowledges that, in the case of semiconductor products, optoelectronic products and other electronic components, due to the advanced technology in the Goods and the specialist nature of the manufacturing process, manufacture of the Goods by HITACHI's normal means may result in a loss of yield. In the event of such a loss of yield HITACHI shall notify the Buyer and shall use its reasonable endeavors to supply the Goods in accordance with this Contract. If due to a Force Majeure Event or due to loss of yield HITACHI has insufficient stocks to meet all its commitments HITACHI may apportion stock between its customers at its sole discretion.
(5) If any delivery time specified overleaf is so extended by more than 90 days then the Buyer shall be entitled to give written notice to HITACHI requiring the Goods to be delivered within 30 days of the date of such notice, failing which the Buyer shall have the right to give further written notice determining the Contract forthwith.
(6) HITACHI shall be entitled to deliver the Goods in one or more instalments. Where delivery is effected by instalment each instalment shall be treated as a separate contract. Delay in delivery or other default of any instalment shall not relieve the Buyer of its obligations to accept and pay for the remaining deliveries.
(7) In the case of the Buyer residing in the United Kingdom, unless otherwise stated, HITACHI will at its own expense deliver to the Buyer's premises. In the case of exports, unless otherwise stated, delivery will be FOB (Incoterms 2010) at a UK port designated by HITACHI.
(8) The delivery by HITACHI of a greater or lesser quantity of the Goods than the quantity provided for in the Contract, the delivery of other goods not provided for in the Contract, or the delivery of the Goods only some of which are defective, shall not entitle the Buyer to reject all of the Goods delivered. In order that HITACHI can comply with its carrier's conditions any claim in respect of error in quantity or type of Goods or in respect of damage to the Goods in transit must be made in writing to HITACHI and the carrier notified in both cases within 3 days of receipt of the Goods. Failure to make such claim shall constitute unqualified acceptance of the Goods and waiver by the Buyer of all claims relating to error in quantity or type of goods delivered or relating to the condition of Goods delivered. Similarly, if any Goods invoiced by HITACHI are not delivered, in order that HITACHI can claim against its carriers where appropriate the Buyer must notify HITACHI within 10 days of the date of invoice, failing which the Buyer will be liable to pay for the Goods in full. Where liability for error in quantity, or type of Goods or in respect of damage to the Goods in transit is accepted by HITACHI, HITACHI's only obligation shall be, at its option, to make good any shortage or non-delivery and/or as appropriate to replace or repair any Goods found to be damaged or defective and/or to refund the cost of such Goods to the Buyer.
(9) If the Buyer refuses or fails to take delivery of Goods tendered in accordance with this Contract HITACHI shall be entitled to terminate this Contract with immediate effect, to dispose of the Goods as HITACHI may determine, and to recover from the Buyer any loss and expenses incurred as a result of such refusal or failure.
(10) Section 32 (2) of the Sale of Goods Act 1979 shall not apply. HITACHI shall not be required to give the Buyer the notice specified in Section 32 (3) of the Act.
(11) Unless expressly agreed in writing by HITACHI, all Goods shall be packed in accordance with HITACHI's standard practice. The Buyer shall meet the costs of any special packaging requested by the Buyer or any packaging rendered necessary by delivery by any means other than HITACHI's normal means of delivery.
5. RISK AND TITLE
(1) NOTWITHSTANDING DELIVERY, PROPERTY IN THE GOODS SUPPLIED SHALL REMAIN WITH HITACHI UNTIL THOSE GOODS HAVE BEEN PAID FOR IN FULL (TOGETHER WITH ANY ACCRUED INTEREST).
(a) RISK IN THE GOODS SHALL PASS ON DELIVERY. The Buyer shall store the Goods separately or in such a way as will show clearly that they are HITACHI's property and the Buyer will ensure that they are kept in good condition and insured against loss or damage for HITACHI's benefit. Until property in the Goods passes to the Buyer, the Buyer shall hold the proceeds of any claim on the insurance policy on trust for HITACHI and shall immediately account to HITACHI with the proceeds.
(b) THE BUYER SHALL HOLD THE GOODS IN A FIDUCIARY CAPACITY AND AS BAILEE FOR HITACHI WHO MAY WITHOUT PREJUDICE TO ANY OTHER OF ITS RIGHTS REPOSSESS THE GOODS TO WHICH IT HAS RETAINED TITLE AS AFORESAID and thereafter re-sell the same and for this purpose the Buyer hereby grants an irrevocable right and license to HITACHI's servants and agents to enter upon all or any of its premises with or without vehicles during normal business hours for the purpose of inspecting and/or repossessing Goods to which it has retained title. This right shall continue to subsist notwithstanding the termination of this Contract for any reason and is without prejudice to any accrued rights of HITACHI hereunder or otherwise.
(c) The Buyer agrees to provide HITACHI, within twenty-four hours of a written request made by HITACHI, a certificate stating (i) the Goods that the Buyer still holds and that the Buyer has its custody, directly or through a third party depositary; and (ii) the names and contact information (address, telephone number and email) of any subsequent purchasers of the Goods, and the amounts owed by such purchasers to the Buyer.
(d) HITACHI may at any time detach or separate any of its Goods which may have been incorporated in or attached to goods belonging to the Buyer or any third party.
(2) HITACHI reserve the right, exercisable at its option by notice in writing to the Buyer, to waive the provisions of sub clause 5 (1) above at any time before payment has been made for the Goods supplied by the Buyer and to declare that property in the Goods shall have passed to the Buyer.
(3) Notwithstanding that property in the Goods shall not have passed to the Buyer, HITACHI, without prejudice to any other of its rights, may sue for the price of the Goods supplied in the event that payment is not made on the due date.
(4) Any return of Goods wholly or partly by the Buyer to HITACHI, except in the case of defective Goods pursuant to Clause 8, shall be subject to HITACHI's prior written consent and Buyers payment to HITACHI of interest charges for the period from the date of HITACHI's shipment of such Goods to the Buyer to the date of HITACHI's receipt of such Goods. Freight, insurance and any other expenses incurred in connection with such return shall be borne by the Buyer.
(1) Unless otherwise stated overleaf, prices of the Goods shall be exclusive of VAT, export duty and foreign import duty and any other import or other taxes, which shall where applicable be paid by the Buyer.
(2) Prices stated in any quotation or in HITACHI's Sales Confirmation are provisional only and subject to adjustment to take account of increases in HITACHI's costs and overheads, including, without limitation, costs of carriage and labor costs. The Contract price shall be HITACHI's price ruling at the date of dispatch. All quotations/sales confirmations and invoices are issued subject to the unconditional reservation of HITACHI's right to adjust prices in respect of the following:-
(a) Changes in the prevailing exchange rate between the currency in which the price is to be paid and the Japanese Yen; (b) Changes in the current EU import duty.
(1) If HITACHI has granted the Buyer credit facilities, the payment of the price must be made in full within 30 days of the date of invoice, unless otherwise specified overleaf or agreed to by HITACHI. Any extension of credit allowed for the Buyer may be changed or withdrawn at any time. Where no credit has been granted, payment must be made in full in cash prior to delivery. Payment shall be made in full direct to HITACHI in the currency invoiced. The Buyer shall not be entitled to exercise any right of set-off, counterclaim, abatement or analogous deduction against payment due to HITACHI. Time of payment is of the essence of a Contract. HITACHI reserves the right to suspend the provision of Goods to the Buyer where any amounts are overdue under any Contract with the Buyer until all such amounts have been paid.
(2) HITACHI is authorized to invoice daily interest (penalties for late payment) on any amount unpaid at the rate stipulated by the Late Payment of Commercial Debt Regulations 2013 (as amended) from the due date until the date of actual payment of all unpaid amounts (including interest) (after, as before, judgment). Costs in excess may also be claimed if justified.
(3) If, in the opinion of HITACHI, the creditworthiness of the Buyer shall have deteriorated prior to the delivery, HITACHI may require full or partial payment of the price prior to delivery or the provision of security for payment in full (including any accrued interest) by the Buyer in a form acceptable to HITACHI notwithstanding any credit terms that may have been agreed between HITACHI and the Buyer.
(4) Notwithstanding any purported contrary appropriation by the Buyer, all payments made by the Buyer to HITACHI shall be appropriated first to Goods which have been resold by the Buyer and then to Goods which remain in the possession or under the control of the Buyer.
(5) HITACHI is entitled to offset any amount owing to it from the Buyer against any amount owed to the Buyer by HITACHI.
(1) If the Goods are defective on delivery, and the defects arise from faulty materials or workmanship and are not caused by fair wear and tear, abnormal or unsuitable conditions of storage, transportation or use, or the combination of the Goods with any goods not supplied by HITACHI or any act, neglect or default of the Buyer or any third party and HITACHI is given written notice of the defects promptly upon discovery by the Buyer and at any rate within six months (or such other period of time as may specifically be agreed to by HITACHI for certain types of Goods) after delivery then, unless otherwise specified overleaf, HITACHI's sole obligation shall be (at its option) to repair or replace the defective item or allow the Buyer the price thereof and to pay or reimburse the reasonable carriage charges for the return of defective Goods to the Buyer and for delivery of the replaced or repaired item.
(2) Unless otherwise agreed between HITACHI and the Buyer, if any of the Goods are not HITACHI made, the provisions of sub clause 8 (1) above shall apply only to the extent covered by any warranty made by the supplier of such Goods to HITACHI.
(3) The Buyer shall retain the Goods at its premises until instructed by HITACHI to return them. Goods alleged to be defective shall be subject to inspection and testing by HITACHI at its own or (if HITACHI so chooses) at the Buyer's premises and the Buyer shall allow HITACHI adequate facilities at the Buyer's premises to investigate the complaint.
(4)Subject to sub clause 8 (1) above, HITACHI gives no representation or warranty and there is not incorporated in the Contract any condition whether express or implied, statutory or otherwise, as to the Goods other than the statutory warranty of title, and any such representations, conditions or warranties are hereby expressly excluded and HITACHI shall be under no liability to the Buyer for any loss, damage or injury (including special, direct, indirect or consequential loss and loss of profit) resulting from defective materials, faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of HITACHI, its employees or agents SAVE THAT HITACHI shall accept liability for death or personal injury caused by the negligence of HITACHI.
(5) Subject to sub clause 8 (1),the warranty for RAC products shall be 36 months after delivery of the Goods or from the date of invoice ,whichever is earlier.
(6) Subject to sub clause 8 (1) , the warranty for Utopia and Set Free Systems shall be 60 months from delivery of Goods or from the date of invoice ,whichever is earlier.
(7)For further information on UK warranty terms, please visit the following website https://www.hitachiaircon.com/argws/en/helpingyou/warranty
9. INSOLVENCY AND DEFAULT
If the Buyer fails to pay HITACHI in accordance with these conditions, breaches any other of these conditions or is the subject of collective insolvency proceedings, HITACHI may, without prejudice to its other rights, postpone delivery or manufacture of the Goods until such payment has been made or other breach rectified and/or (at its option) to terminate the Contract (and/or any other such contracts) and to recover payment for all deliveries already made and for the cost of materials and labor already expended for the purpose of future deliveries (less any allowance of the value thereof as utilized by HITACHI for other purposes) and also to recover from the Buyer a sum equivalent to HITACHI's loss of profit arising out of such termination. The exercise of HITACHI's option to postpone delivery or manufacture shall not prevent thesubsequent exercise of HITACHI’s option to terminate the Contract and/or any other such contracts.
10. THIRD PARTY RIGHTS
(1) In this clause 10 "Third Party Rights" shall mean any rights under letters patent, registered or unregistered designs, trademarks, copyright or any other intellectual property rights and rights in know-how whether or not capable of being protected by statute, which are owned or controlled by any third party.
(2) Where any of the Goods are produced to the Buyer's specification or where the Buyer's use of the Goods infringes any Third Party Rights notwithstanding that the Goods themselves do not constitute such an infringement, the Buyer shall indemnify HITACHI against all actions, claims, costs, damages or losses arising from any infringement of such rights in respect of the Goods so produced or the use to which the Buyer has put the Goods as the case may be.
(3) Any reference by HITACHI to patents, copyright, registered designs, trademarks and analogous forms of protection shall not constitute a warranty of the validity thereof.
(4) HITACHI does not warrant that the Goods do not infringe any Third Party Rights, and all warranties to that effect whether express or implied, statutory or otherwise are hereby excluded. If at any time it is alleged that the Goods infringe any Third Party Rights, or if in HITACHI's reasonable opinion such an allegation is likely to be made, HITACHI may at its option and at its own expense:
(a) modify or replace the Goods without detracting from the overall performance of the Goods, so as to avoid the infringement; or
(b) procure for the Buyer the right to continue to use the Goods; or (c) repurchase the Goods at the price paid by the Buyer.
(5) HITACHI shall have no liability to the Buyer in the event of Goods infringing or being alleged to infringe any Third Party Rights. In the event that the Goods are or may be the subject of Third Party Rights, HITACHI shall be obliged to transfer to the Buyer only such right, title or interest as HITACHI may have.
(6) The Buyer shall notify HITACHI forthwith of any claim made or action brought or threatened alleging infringement of any Third Party Rights. HITACHI shall have control over and conduct any such proceedings in such manner as it shall determine. The Buyer shall provide all such reasonable assistance in connection therewith as HITACHI may request.
11. SPECIFICATIONS AND INFORMATION
(1) Unless expressly agreed in writing by HITACHI, all drawings, designs, specifications and particulars of dimensions and weights and other such information submitted by HITACHI are approximate only and HITACHI shall have no liability in respect of any deviation therefrom.
(2) HITACHI accepts no responsibility for any errors, omissions or other defects in any drawings, designs or specifications prepared by, or on behalf of, the Buyer or the Buyer's agents, sub-contractors or employees, and HITACHI shall be indemnified by the Buyer against any and all liabilities and expenses incurred by HITACHI arising therefrom.
(3) All drawings, designs, specifications and information submitted by HITACHI are confidential and shall not be disclosed to any third party without HITACHI's written consent.
12.LIMITATION OF LIABILITY
(1) HITACHI shall not be liable for any indirect or intangible loss, such as: loss of revenue, loss of goodwill, loss of data, operating loss and/or loss of anticipated savings in each case howsoever caused.
(2) Without prejudice to sub clause 12(1) HITACHI shall not be liable to the Buyer for any loss or damage whether for negligence, breach of contract, misrepresentation or otherwise, for a sum greater, in aggregate, than the amount actually paid by the Buyer to HITACHI under the Contract.
(3) The limitation of liability in sub clauses 12(1) and 12(2) above shall not operate to exclude or restrict HITACHI's liability for fraud or deceit or for death or personal injury caused by its negligence.
(4) For the avoidance of doubt HITACHI will have no liability to the Buyer for any delays in deliveries due to circumstances described in sub clauses 4(3) and 4(4) of these conditions.
Neither party shall without the prior written consent of the other party (which shall not be unreasonably withheld) assign or sub-contract any of its rights or duties under the Contract and upon such consent being given shall furnish copies of any such assignments to the other party.
14. LICENSES AND CONSENTS
(1) If any license or consent of any government or other authority shall be required for the acquisition, carriage or use of the Goods by the Buyer, the Buyer shall obtain the same at its own expense and if necessary produce evidence of the same to HITACHI on demand. Failure to do so shall not entitle the Buyer to withhold or delay payment of the price. Any additional expenses or charges incurred by HITACHI resulting from such failure shall be for the Buyer's account.
(2) If HITACHI needs to obtain an export license from the competent authorities of any country, the Buyer shall furnish HITACHI with all information required by HITACHI for such purpose, including, but not limited to, the country of ultimate destination and the name and address of the end-user and any consignee(s), and shall warrant that such information is true, accurate and sufficiently detailed. The Buyer further agrees to take all necessary procedures to act in full compliance with all applicable governmental requirements, including but not limited to applicable economic sanctions and constraints administered by the U.S. Department of the Treasury and applicable export control measures administered by the U.S. Departments of Commerce and State, any other U.S. government agencies, and measures administered by the European Union or the government agencies of any other countries. This includes the acquisition of international import certificates, licenses, permits and delivery verifications, as applicable. In the event that any of the Goods, or any materials, parts or components incorporated in them, or relevant technical data supplied by HITACHI are of United States origin, the Buyer agrees to comply with the U.S. Export Administration regulations.
(3) The Buyer shall not directly or indirectly sell, transfer, export, re-export or make available the Goods, (wholly or partly), any relevant technical data (including software), technology or services to Cuba, Iran, North Korea, Sudan, Syria and Crimea or any other destination, person or organization subject to U.S, United Nations, EU and/or national sanctions or restrictions, including any entities or persons in those countries, representing those countries, or who ever held citizenship in those countries, either directly or indirectly.
(4) The Buyer shall not sell, transfer, export, re-export or make available the Goods, (wholly or partly), any relevant technical data (including software), technology or services to a person or entity subject to governmental restrictions or prohibitions.
(5) The Buyer confirms that the Goods or any relevant technical data will not be used:
(a) For purposes related to any weapons of mass destruction, nuclear, rocket system, unmanned air vehicle, missile, chemical and biological, military (if destined for China, Russia or Venezuela), maritime nuclear propulsion end-uses;
(b) For end-use on a vessel or aircraft, unless the country of location, country of registration, and the country in control (including leasing or chartering) are all authorized.
(6) The Buyer shall keep documentation from the date of HITACHI's shipments and at least for the minimum legal retention period consistent with the local laws, as evidence that all Goods supplied to the Buyer have been received in the destination permitted under the laws of the government issuing the export license, and the Buyer will produce such evidence upon HITACHI's request.
(7) HITACHI's obligations under any Contract shall be conditional upon all necessary licenses or consents being obtained from the relevant authorities and the ability of HITACHI to supply such the Goods consistent with the laws and regulations of the U.S. and other governments.
(8) The Buyer shall separately confirm to HITACHI the strict observation hereof of this clause 14 (Notice of Confirmation).
Failure by HITACHI to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
(1) Any notice hereunder shall be deemed to have been duly given if sent by pre-paid normal post, telex, or telefax to the party concerned as its last known address. Notices sent by normal post shall be deemed to have been given seven days after dispatch and notices sent by telex or telefax shall be deemed to have been given on the date of dispatch.
(2) Buyer must promptly notify Hitachi in writing of any: (i) criminal conviction; (ii) debarment; (iii) indictment or other charge of violating criminal statues or regulations; (iv) ineligibility to contract with or to receive a license or other form of authorization for a government agency; or (v) denial, suspension, or revocation of eligibility to be involved in exports, imports, or conduct business.
The contract may be cancelled or rescheduled by the Buyer only with HITACHI's written consent. In the event of such cancellation the Buyer shall pay to HITACHI a cancellation charge, equal to HITACHI’s cost incurred up to the date of cancellation plus HITACHI’s loss of profit. The amount of such charge shall be notified to the Buyer upon HITACHI’s written acknowledgement of cancellation and shall be paid within 30 days of such notification.
18. FORCE MAJEURE
(1) If HITACHI is prevented, hindered or delayed from or in supplying the Goods in accordance with these conditions by a Force Majeure Event HITACHI may, at its option:
(a) suspend deliveries while the Force Majeure Event continues;
(b) if HITACHI has insufficient stocks to meet its commitments, apportion available stocks between its customers as it decides; or
(c) terminate any contract so affected with immediate effect by written notice to the Buyer; and HITACHI shall not be liable for any loss or damage suffered by the Buyer as a result.
(2) In this clause "Force Majeure Event" means an event beyond the reasonable control of HITACHI including, without limitation, strike, lock-out, labor dispute or shortage of labor, act of God, war, riot, civil commotion, malicious damage, compliance with a law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, earthquake, shortage of utilities, materials or other circumstances affecting the supply of materials from HITACHI's normal source of supply formaterials for the Goods.
The Buyer shall be responsible for all obligations, financial or otherwise, imposed in respect of the Goods, on either of the parties, under any environmental legislation applicable to the parties, including but not limited to Directive 2012/19/UE on waste of electrical and electronic equipment and any legislation enacted pursuant to it.
20. LAW AND JURISDICTION
The law of the Contract shall be English law and the parties hereby submit to the jurisdiction of the English Courts save that HITACHI shall be entitled to bring proceedings against the Buyer in the courts of any jurisdiction where the Buyer resides or carries on business.
21. INTELLECTUAL PROPERTY RIGHTS
The Buyer agrees that it shall not obtain any right, title or interest in or to any intellectual property (including, without limitation, patents, trademarks, registered or unregistered designs, copyrights and rights in designs or inventions) in the Goods and that it shall not do or permit anything to be done in its use of such intellectual property in the Goods which would or could jeopardize their validity.
(1) Headings herein are for easy reference purpose only, and shall not be construed as defining the scope or meaning of any provisions.
(2) The invalidity, illegality or unenforceability of the whole or part of a condition does not affect or impair the continuation inforce of the remainder of these conditions.
(3) A person who is not a party to this contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
(4) A reference to a statutory provision includes a reference to the statutory provision as modified or re-enacted or both from time to time and any subordinate legislation made under the statutory provision.