Hagen UK Terms and Conditions of Business

Definitions and interpretation
Formation of the Contract
Orders and specifications
Description
Rates and payment
Intellectual Property Rights
Buyer’s obligations
Delivery
Non-delivery
Risk / Title
Warranty
Liability
Confidentiality
Indemnity
Insolvency of the Buyer
Status of the Buyer
Assignment
Force Majeure
General

Rolf C Hagen (UK) Limited Terms and Conditions

1 Definitions and interpretation

1.1 “Buyer” means the person, company, partnership or other body placing an Order with RC Hagen; “Conditions” means the standard terms and conditions of sale and/or supply set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and RC Hagen; “Contract” means the contract for the supply of Goods formed by RC Hagen’s acceptance of an Order (which, however made or communicated, shall be deemed made subject to these Conditions); “Goods” means the goods as set out in the Order; “Intellectual Property” means all patents, rights to inventions, copyright and related rights, trade marks, trade names, copyright, rights in designs and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world; “Order” means the order placed by the Buyer for the supply of Goods; “Price” means the price of the Goods, determined in accordance with condition 5.1 below;”Quotation” means the quotation provided by RC Hagen to the Buyer detailing the Goods and the Price; “RC Hagen” means Rolf C. Hagen (UK) Limited whose registered office is at California Drive, Whitwood Industrial Estate, Castleford, West Yorkshire, WF10 5QH with Company No. 01670484; “Specification” means the specification for the Goods, as detailed in the Quotation; “Usage Instructions” means the detailed instructions provided by RC Hagen regarding how to use the Goods; and “Writing” includes email, facsimile transmission and comparable means of communication. 1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time. 1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation. 1.4 A reference to a party includes its personal representatives, successors or permitted assigns. 1.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

2 Formation of the Contract

2.1 The Contract shall be deemed to have been entered into upon receipt of RC Hagen’s written Order acknowledgement or when RC Hagen delivers the Goods, whichever is the earlier. All Goods sold are sold subject to these Conditions and these Conditions shall be the sole terms and conditions applicable. Terms and conditions on the Buyer’s order form or other similar document shall not be binding on RC Hagen and the placing of the Order by the Buyer shall indicate unqualified acceptance of these Conditions. 2.2 These Conditions shall override any terms or conditions which the Buyer purports to incorporate into the Contract. No variation to these Conditions shall be binding unless agreed in writing by a director of RC Hagen. 2.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by RC Hagen shall be subject to correction without any liability on the part of RC Hagen.

3 Orders and specifications

3.1 The giving of a Quotation by RC Hagen shall be without any commitment on RC Hagen to accept an Order, no Order submitted by the Buyer shall be binding on RC Hagen until the Contract is entered into in accordance with condition 2.1 above. 3.2 RC Hagen shall be under no obligation to acknowledge receipt of any Order and may execute the Order without further reference to the Buyer. 3.3 The Buyer shall be responsible to RC Hagen for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Buyer, and for giving RC Hagen any necessary information relating to the Goods within a sufficient time to enable RC Hagen to perform the Contract in accordance with its terms. 3.4 The quantity and description of the Goods shall be as set out in the Quotation. 3.5 Goods are supplied on condition that the Buyer undertakes at all times to take and comply with (and to draw to third parties’ attention and require them to take and comply with) all responsible and prudent precautions in respect of the Goods, including without limitation, as to the transportation, installation, use, maintenance, storage, cleaning, disposal and otherwise of the Goods. 3.6 RC Hagen shall use reasonable endeavours to deliver the Goods to the Buyer in accordance in all material respects with the Quotation and estimated delivery dates. 3.7 No Order which has been accepted by RC Hagen may be cancelled by the Buyer except with prior written agreement of a director of RC Hagen (which may be withheld at RC Hagen’s discretion) and on terms that the Buyer shall indemnify RC Hagen in full against any and all losses (including without limitation loss of profit), costs (including without limitation the cost of all labour and material used), damages, charges and expenses incurred by RC Hagen as a result of cancellation.

4 Description

4.1 The quantity and description of the Goods shall be as set out in RC Hagen’s Quotation. 4.2 All samples, drawings, descriptive matter, specifications and advertising issued by RC Hagen and any descriptions or illustrations contained in RC Hagen’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.

5 Rates and payment

5.1 Subject to the provisions of this condition 5, the Price of the Goods shall be the price stated in RC Hagen’s Quotation, or where no price has been quoted (or a quoted price is no longer valid), the price listed in RC Hagen’s published price list current at the date of acceptance of the Order. Unless otherwise detailed in the Quotation, all Quotations shall be valid for a period of 30 days from the date it is first issued. 5.2 Notwithstanding any other provision of these Conditions, RC Hagen reserves the right, by giving notice to the Buyer at any time before delivery, to amend the Quotation to reflect any increase in the cost to RC Hagen which is due to any factor beyond the control of RC Hagen (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specification for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give RC Hagen adequate information or instructions. 5.3 The Price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to RC Hagen, at the rate prescribed by law from time to time in force. 5.4 Unless otherwise agreed in writing by RC Hagen, the Price shall exclude the cost of delivery to the Buyer. 5.5 Time for payment by the Buyer shall be of the essence of the Contract. 5.6 Payment by the Buyer to RC Hagen shall be made in full within 30 (thirty) days of the date of delivery of the Goods to the Buyer in accordance with condition 8.2. 5.7 The Buyer acknowledges and agrees that delivery of the Goods may not occur until after the due date for payment. 5.8 Without prejudice to any other rights or remedy that it may have, if the Buyer fails to pay RC Hagen on the due date RC Hagen may:

(a) charge interest on any amounts overdue at the rate of 4% per annum above the base rate of the HSBC Bank Plc as applying from time to time to run from the due date for payment until receipt by RC Hagen of the full amount whether or not after judgment and without prejudice to any other right or remedy of RC Hagen;
(b) suspend delivery of any Goods; and/or
(c) cancel the Order.;

5.9 No payment shall be deemed to have been received until RC Hagen has received cleared funds. 5.10 All payments payable to RC Hagen under the Contract shall become due immediately on its termination despite any other provision. 5.11 The Buyer shall make all payments due under the Contract in full without any deduction whether by set-off, counterclaim, discount, abatement or otherwise.

6 Intellectual Property Rights

6.1 The Buyer acknowledges that any and all Intellectual Property in and relating to the Goods, RC Hagen and/or RC Hagen’s business belong solely to RC Hagen and shall remain entirely in the ownership of RC Hagen. Nothing said or done by either party shall constitute the transfer of any such rights.

7 Buyer’s obligations

7.1 The Buyer:

(a) shall co-operate with RC Hagen in all matters relating to the Goods;
(b) shall provide, in a timely manner, such information as RC Hagen may request and ensure that it is accurate in all material respects;
and (c) has obtained at its own cost all the necessary permissions, certificates, licences, permits and consents required by statute or any order or regulation made thereunder or by any registration or by-law of any local authority in respect of the Goods.;

7.2 The Buyer warrants and undertakes to store and use the Goods strictly in accordance with the Usage Instructions.

8 Delivery

8.1 Unless otherwise agreed in writing by RC Hagen, RC Hagen shall deliver the Goods to the location set out in the order or such other location as the parties may agree (the “Delivery Location”) at any time after RC Hagen notifies the Buyer that the Goods are ready. 8.2 Delivery of the Goods shall occur on the Goods arrival at the Delivery Location. 8.3 Any dates specified by RC Hagen for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time. RC Hagen shall not be liable for any delay in delivery of the Goods or performance of the Contract howsoever caused. 8.4 If for any reason the Buyer fails to accept delivery of any of the Goods or RC Hagen is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:

(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by RC Hagen’s negligence) at the point RC Hagen was ready to deliver the Goods;
(b) the Goods shall be deemed to have been delivered;
(c) where applicable, charge the Buyer for RC Hagen’s abortive delivery costs;
and (d) RC Hagen may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).;

8.5 RC Hagen may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract. No cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.

9 Non-delivery

9.1 The quantity of any consignment of Goods as recorded by RC Hagen upon despatch from RC Hagen’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary. 9.2 From the date of physical delivery of the Goods to the Buyer, the Buyer shall have a maximum of 3 (three) days to check the condition of the Goods. 9.3 RC Hagen shall not be liable for any non-delivery or insufficient quality of the Goods (even if caused by RC Hagen’s negligence) unless the Buyer gives written notice to RC Hagen of the non-delivery within 3 days of the date when the Goods were or where applicable, would in the ordinary course of events have been received. 9.4 Any liability of RC Hagen for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or refunding the fee paid for such Goods.

10 Risk / Title

10.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery in accordance with condition 8.2 or, if the Buyer wrongfully fails to take delivery of the Goods, the time when RC Hagen has tendered delivery of the Goods. 10.2 RC Hagen shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from RC Hagen. 10.3 On termination of the Contract, howsoever caused, RC Hagen’s (but not the Buyer’s) rights contained in this condition 10 shall remain in effect. 10.4 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until RC Hagen has received in cash or cleared funds payment in full of the Price of the Goods and all other sums then due and payable by the Buyer to RC Hagen in respect of this or any other contract. 10.5 Until such time as the property in the Goods passes to the Buyer in accordance with condition 10.4, the Buyer shall:

(a) hold the Goods as RC Hagen’s fiduciary agent and bailee;
(b) keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as RC Hagen’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
and (d) maintain such Goods in satisfactory condition and insure the Goods and keep them insured on RC Hagen’s behalf for their full price against all risks with an insurer that is reasonably acceptable to RC Hagen and upon request from RC Hagen, to provide written evidence of such.;

10.6 Until such time as the property in the Goods passes to the Buyer, RC Hagen shall be entitled at any time to require the Buyer to deliver up to the Goods to RC Hagen and the Buyer grants RC Hagen, its agents and employees an irrevocable licence at any time to enter upon any premises of the Buyer or any third party where the Goods are or may be stored in order to inspect them or, where the Buyer’s right to possession has terminated, to repossess the Goods.

11 Warranty

11.1 Subject to the provisions of this condition 11, and provided the Goods are at all times dealt with strictly in accordance with condition 7.2 above and any other instructions RC Hagen supplies to the Buyer from time to time, RC Hagen warrants that upon delivery of the Goods in accordance with condition 8.2 the Goods shall comply in all material respects with the Specification for such period as specified on the relevant Goods or otherwise notified to the Buyer by RC Hagen. 11.2 Where the Goods do not meet the warranty detailed in condition 11.1, RC Hagen shall (at its election) repair or replace free of charge any Goods (or the relevant constituent parts not being expendable items) which in any such case RC Hagen shall find upon examination (for which the Buyer will provide full facilities) to have been so defective provided that: (a) the claim is not attributable to fair wear and tear or any fault or damage arising from impact, modification, inappropriate use or treatment, incorrect handling or exposure to corrosive substances or substances otherwise injurious to the Goods or their constituent materials;

(a) the claim is not attributable to fair wear and tear or any fault or damage arising from impact, inappropriate use or treatment, incorrect handling or exposure to corrosive substances or substances otherwise injurious to the Goods or their constituent materials;
(b) the claim is made by the Buyer as RC Hagen’s original customer for the Buyer’s own benefit;
(c) RC Hagen’s recommendations for installation, maintenance, storage, use and following-up in respect of the Goods have been complied with;
(d) the claim is not attributable to any defect arising from any drawing, design, specification, information or other material supplied by the Buyer;
(e) the Goods have not been adjusted, altered, adopted or repaired by any party other than RC Hagen;
(f) the Buyer notifies RC Hagen in accordance with condition 11.4 below.

11.3 Where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer are not affected by these conditions. 11.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with the Specification shall (whether or not delivery is refused by the Buyer) be notified to RC Hagen within 3 days from the date of deemed delivery of the Goods in accordance with condition 8 or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect of failure. If the Buyer does not notify RC Hagen accordingly, the Buyer shall not be entitled to reject the Goods and RC Hagen shall have no liability for such defect or failure, and the Buyer shall be bound to pay the Price as if the Goods had been delivered in accordance with the Contract. 11.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet the Specification is notified to RC Hagen in accordance with these Conditions, RC Hagen shall be entitled to replace the Goods (or the part in question) free of charge or, at RC Hagen’s sole discretion, refund to the Buyer the Price of the Goods (or a proportionate part of the Price where applicable), but RC Hagen shall have no further liability to the Buyer.

12 Liability

12.1 This clause 12 sets out the entire financial liability of RC Hagen (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of any breach of this Contract; any use made by the Buyer of the Goods in whole or in part; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract. 12.2 Except as expressly set out in this Contract, all warranties, conditions and other terms implied by statute or common law or otherwise are, to the fullest extent permitted by law, excluded from this Contract. 12.3 Nothing in this Contract limits or excludes the liability of RC Hagen for death or personal injury resulting from negligence; or for any damage or liability incurred by the Buyer as a result of fraud or fraudulent misrepresentation by RC Hagen. 12.4 Subject to clause 12.3 above:

(a) RC Hagen shall not be liable for loss of profits; or loss of business; or depletion of goodwill and/or similar losses; or loss of anticipated savings; or loss of goods; or loss of contract; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
(b) RC Hagen’s total liability in contract, tort (including negligence or statutory duty), misrepresentation or otherwise shall be limited to the Price of the Goods.

13 Confidentiality

13.1 The Buyer shall at all times keep secret and confidential all Intellectual Property and technical or commercial know-how, specifications, inventions, processes, initiatives, business and trade secrets, methods of doing business, buyer lists and all the information of a confidential nature which have been disclosed to the Buyer or the Buyers agent by RC Hagen, its employees, agents or sub-contractors and any other confidential information concerning RC Hagen’s business or its products which the Buyer may obtain. The Buyer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Buyer’s obligations to RC Hagen, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Buyer. 13.2 The above condition 13.1 shall not apply to confidential information which:

(a) is in the public domain at the time of disclosure to the Buyer;
or (b) subsequently enters the public domain otherwise than as a result of unauthorised disclosure by RC Hagen or any other person.;

13.3 This condition 13 shall survive termination of the Contract, however arising.

14 Indemnity

14.1 The Buyer agrees to indemnify and keep indemnified RC Hagen from and against all costs, claims, demands, liabilities, expenses, damages or losses (including without limitation consequential losses, loss of profit and loss of reputation) incurred by RC Hagen in respect of any breach of the terms of the Contract including but not limited to RC Hagen’s liability to third parties arising out of the Goods including (without limitation) liability to enforcement agencies and consumers for unsafe and defective goods and any breach of third party Intellectual Property. This indemnity shall apply whether or not RC Hagen may have been negligent or at fault.

15 Insolvency of the Buyer

15.1 This clause applies if:

(a) the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction);
(b) an encumbrancer takes possession or a receiver, administrator receiver or administrator is appointed of any of the property or assets of the Buyer;
(c) the Buyer ceases or threatens to cease to carry on business;
(d) RC Hagen reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

15.2 If this clause applies then, without prejudice to any other right or remedy available to or already accrued to a party, RC Hagen shall be entitled to cancel an Order and/or the Contract and if the Goods have been delivered but not paid for the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

16 Status of the Buyer

16.1 The Buyer warrants to RC Hagen that it has experience of dealing with goods of the same kind as the Goods and warrants to use the Goods only in the manner and for the purpose for which they are designed.

17 Assignment

17.1 The Buyer shall not be entitled to transfer or assign the Contract or any part of it without the prior written consent of RC Hagen.

18 Force Majeure

18.1 RC Hagen shall not be liable to the Buyer under the Contract if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of RC Hagen including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, labour, fuel, parts or machinery, power failure or break down of machinery provided that, if the event in question continues for a continuous period in excess of 90 days, either party shall be entitled to give notice in writing to the other to terminate the Contract without prejudice to any other rights or remedies already accrued to a party.

19 General

19.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. 19.2 Each right or remedy of RC Hagen under the Contract is without prejudice to any other right or remedy of RC Hagen whether under the Contract or not. 19.3 Each provision of the Contract is severable and distinct from the others and if any provision of the Contract is at any time found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and shall not form part of the Contract and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect. 19.4 Failure or delay by RC Hagen in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of that right or any other rights under the Contract, nor separate to bar exercise or enforcement of it or any other right at any time or times thereafter. 19.5 Any waiver by RC Hagen of any breach of, or any default under, any provision of the Contract by the Buyer must be given in Writing but shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract. 19.6 No term of the Contract shall be enforceable by any party who is not a party to the Contract under the Contracts (Rights of Third Parties) Act 1999. 19.7 Each party warrants to the other that the Contract constitutes the entire agreement and understanding between the parties and supersedes any previous agreement between them relating to the matters contained in the Contract. Further, in entering into the Contract, it does not rely on any statement, representation, assurance, promise or warranty of any person other than as expressly set out in these Conditions. Neither party excludes its liability for fraudulent misrepresentation. 19.8 This Contract shall be governed by and construed in accordance with English law and the courts of England shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Contract.