1 Terms and Conditions of Business
This document sets out the terms and conditions upon which Protech Food Systems Limited (“Protech”) of Rushden Road, Milton Ernest, Bedfordshire, MK44 1RZ agrees to sell Food Processing Systems (“Equipment”) and provide advisory services (“Services”) to the Customer whose details appear on the order.
1.1 Orders
1.1.1 The Customer acknowledges that the Equipment and Services are specific to its requirements and that it is the Customer’s responsibility to check the accuracy of any order form prepared by Protech before confirmation of the order by the Customer. Protech shall be under no obligation to enquire as to the Customer if it has checked the order form.
1.1.2 The Customer accepts that Protech shall have no liability for any loss or damages arising out of any inaccuracy in the order form.
1.2 Formation of Contract
1.2.1 A contract is formed under these terms and conditions when Protech accepts the Customer’s order.
1.2.2 These terms and conditions shall apply to form a contract for any sale of Equipment and/or provision of Services to the Customer by Protech.
1.2.3 No other terms and conditions shall apply nor shall any variation be agreed unless an unauthorised representative of each party otherwise agrees in writing.
1.3 Price
1.3.1 The price for the Equipment and or Services shall be the price contained in the order form (the Price).
1.3.2 Protech may however increase the Price where the costs to Protech for supplying the Equipment and/or Services increases between the date of the acceptance of the order and the date of delivery and/or supply of the Equipment and/or Services for reasons which are beyond Protech’s control.
1.3.3 All prices are subject to VAT and any other applicable taxes or duty which shall be payable by the Customer.
1.4 Payment
1.4.1 The Customer agrees to make payment in full without set off on the payment date set out in the order.
1.4.2 If the Customer fails to make payment on the due date Protech may in addition to any other remedy it may have cease work on the production of any Equipment and or withhold the supply of the Equipment and/or the Services.
1.4.3 Protech shall be entitled to charge interest at the rate [2%] per annum above the then current base rate of Barclays Bank plc.
1.4.4 Deposit non refundable
1.5 Delivery
1.5.1 Delivery of the Equipment shall occur when the Equipment is made available for collection by the Customer at Protech’s premises.
1.5.2 If the Customer fails to take delivery when the Equipment is delivered, Protech may remove the Equipment and store it and shall be entitled to charge the Customer the cost of any such storage. If the Customer fails to take delivery within three months of the delivery date, Protech may in its absolute discretion dispose of the Equipment as it sees fit. Protech shall not be obliged to insure the Equipment if the Customer fails to take delivery.
1.5.3 Time shall not be of the essence for the delivery of the Equipment and/or
1.5.4 Services unless otherwise agreed in writing by Protech.
1.6 Cancellation
Once a contract is formed under these terms and conditions the Customer shall have no right to cancel the contract without Protech’s agreement in writing. In any event, Protech may charge cancellation fee of 80% of the Price or such greater sum if the costs incurred by Protech in performing the contract exceeds that sum.
1.7 Risk and Reservation of Title
1.7.1 Risk in the Equipment passes to the Customer on delivery.
1.7.2 Property in the Equipment shall not pass to the Customer until the Equipment has been paid for in full and all other sums due from the Customer to Protech have been paid in full. Until property passes, the Customer shall hold the Equipment on a fiduciary basis as bailee only
1.7.3 Until property in the Equipment has passed to the Customer, the Customer shall be liable for any loss or damage to the Equipment howsoever caused and shall insure the Equipment for its full value and hold the proceeds of any insurance claim in trust for Protech.
1.7.4 Protech shall be entitled to the Price of the Equipment (plus VAT) despite the fact that the property has not passed from it to the Customer.
1.7.5 Despite the fact that the Equipment remains Protech’s property the Customer may sell or use Equipment in the ordinary course of business. Until the property in the Equipment passes to the Customer, the entire proceeds of sale or otherwise of the Equipment shall be held on trust for Protech and shall not be mixed with other money or paid into any overdrawn bank account and shall always be identified as Protech’s money.
1.7.6 The Customer shall not pledge or in any way charge by security for the indebtedness any Equipment, which is still Protech’s property. If the Customer does this then in addition to any other right Protech may have, all sums owing by the Customer to Protech shall immediately become due and payable.
1.7.7 Until the property in the Equipment passes to the Customer, Protech may request that the Customer delivers up the Equipment or any part of it which has not been resold by Customers. If the Customer fails to do this, Protech may enter upon the premises owned or controlled by the Customer where the Equipment is situated and repossess it. If the Premises where the Equipment is not in the Customer’s control or possession, the Customer shall procure a licence from the owner/occupier of the premises to allow Protech to enter the premises to repossess the Equipment. The licence conferred in this clause 7.7 is irrevocable.
1.8 Acceptance
The Customer may on delivery inspect the Equipment and shall promptly notify Protech of any non-delivery, loss or damage or non-conformance of the Equipment to specification. If the Customer fails to advise Protech within seven days of delivery the Customer will be deemed to have accepted the Equipment.
1.9 Specification
1.9.1 It is the Customer’s obligations to ensure that all data including weights, measurements, functioning requirements, environmental data etc provided to Protech for the purposes of supplying the Equipment is complete and accurate.
1.9.2 Where the Customer specifies particular designs or components in the manufacture of the Equipment the Customer agrees to indemnify and keep Protech indemnified against any threatened or actual claim by a third party that the Customer’s design or proposed component infringes its intellectual property rights or in respect of any other liability arising from Protech’s use of the Customer’s stipulated design or component.
1.10 Warranty
1.10.1 Subject to the terms and conditions set out below, Protech warrants that the Equipment will correspond with any specification at the date of delivery and will be free from defects in material and workmanship. Protech further warrants that all services will be provided with due care and skill.
1.10.2 The warranty is given by Protech subject to the condition that Protech shall be under no liability in respect of any defect from fair ware and tear, normal working and storage conditions, failure to follow Protech’s instructions, misuse, alternation or tampering with the Equipment without Protech’s approval or negligent use of the Equipment.
1.10.3 Unless stated otherwise in these terms and conditions all warranties, conditions or otherwise implied by statute or common law are excluded to the fullest extent permitted by law.
1.11 Limitation of Liability
1.11.1 This clause 11 sets out the full extent of Protech’s liability under any contract formed under these terms and conditions.
1.11.2 Except in respect of death or personal injury caused by Protech or its employees or agents for which there is no limitation on liability, Protech’s maximum liability under, arising from or in connection with any contract made under these terms and conditions (whether in contract, tort or otherwise howsoever) shall be limited to a sum equivalent to the price of the Equipment and/or Services supplied under the contract.
1.11.3 Protech shall under no circumstances be liable to the Customer for any loss of profit or other indirect, special or consequential loss (whether caused by the negligence of Protech, its employees, agents or otherwise) which arise out of or in connection with the supply of the Equipment and/or Services even if the Customer made Protech aware or if Protech ought reasonably to have been aware that such loss would arise.
1.12 Intellectual Property and Confidentiality
1.12.1 All intellectual property rights in the Equipment including copyright, design right (registered or unregistered), patents, know how, trade marks or service marks in the Equipment and/or Services provided by Protech in any contract under these terms and conditions belongs absolutely to Protech. Protech grants the Customer a licence to use the intellectual rights solely for the purposes of operating or repairing Equipment.
1.12.2 The Customer agrees that it will keep confidential and not otherwise use any of the know how, designs, drawings, sketches, computer programs and photographs provided by Protech otherwise for the purposes of operating or repairing the Equipment.
1.12.3 Protech and the Customer agree to keep confidential all financial, business and other information provided to it for the purposes of any contract under these terms and conditions except this obligation confidence shall not apply to information already in the public domain unless it enters a public domain because of a breach of confidence by one of the parties.
1.13 Termination
1.13.1 Protech may terminate any contract made under these terms and conditions upon these terms and conditions upon notice in writing to the Customer if:
1.13.2 the Customer fails to pay any sum due to it
1.13.3 the Customer is in breach of any term of these terms and conditions which is capable of being remedied and fails to remedy that breach within 30 days of receipt of a notice from Protech advising it of the breach;
1.13.4 the Customer ceases to trade, enters into any arrangement for the benefit of its creditors, becomes a party to any insolvency proceedings or procedure, has an administrator or administrative receiver appointed over any part of its assets.
1.13.5 Termination shall not affect the right to the parties which have accrued prior to the termination date.
1.14 Circumstances Beyond Our Control
Neither party shall be liable for any failure or any delay in performance, which is caused by circumstances beyond the reasonable control of a party.
1.15 Law
Any contract made under these terms and conditions shall be governed by law of England and Wales and the Courts of England and Wales shall have jurisdiction over any dispute arising between the parties.