All contracts (including those where goods are delivered by the Company on a sale or return basis) are subject to these conditions.
All specifications are approximations only.
The Company reserves the right to make alterations or improvements in design or manufacturers without notice.
All plans, drawings, specifications and other documents remain the Company's copyright and all patent design and other intellectual property rights to the Goods and such plans, drawings and specifications remain the property of the Company.
Every contract is between the Company and the Buyer as principals and is not assignable without the consent of the Company.
The price is calculated loaded on the Buyer's transport at the Company's warehouse and excludes all packing, carriage, customs or sales taxes, including VAT or import duties or surcharge insurance, unloading, installation, erection or assembly which shall be the responsibility of and be paid by the Buyer at the rates currently prevailing. The Company will at the Buyer's expense arrange packing, insurance against usual transport hazards and carriage at the Buyer's written request but the Goods shall be at the risk of the Buyer from despatch.
All packing cases or crates are non-returnable (unless charged for). Charges for cases for UK orders will be credited to the Buyer if returned in good condition, carriage paid, and only if the Buyer shall have notified the Company in writing of their despatch at the time of such despatch.
All prices are subject to revision upon notice. Orders are accepted and contracts entered into by the Company on the terms that they will be executed at, and the Buyer shall pay the Company's prices ruling at the date of despatch.
Unless otherwise indicated in the Company's Order Form the Company will invoice the goods on the date of collection or despatch and payment shall be due thirty days after the invoice date.
Time of payment shall be of the essence. In the event of late payment the Company shall charge interest at a rate of 2 per cent per annum above the base lending rate of Barclays Bank PLC Such interest will accrue from the due date until payment in full and shall continue both before and after judgement.
The delivery period shall begin with the date of the Company's confirmation of order but the delivery period shall not begin to run until the Buyer has submitted all necessary drawings, specifications and other technical detail and furnished all documents, licences, letters of credit or other authorisations to be obtained by the Buyer and paid any deposit.
The periods or dates for delivery shall be business estimates only and not contractual obligations of the Company. Time of delivery shall not be of the essence.
In the event of delays caused or contributed to, by the act or default of the Buyer or any other circumstances beyond the control of the Company (whether in the Company's business or in the business of any of the suppliers or subcontractors to the Company) whatsoever the period or date of delivery shall be extended accordingly. The Buyer shall have no right to terminate the contract nor shall any of the obligations of the Buyer be varied by reason of any such delay as aforesaid.
If any delivery is delayed or refused by the fault of the Buyer the Company may charge the Buyer reasonable handling, storage and insurance charges and may after giving the Buyer fourteen days notice dispose of the goods and recover from the Buyer all losses, costs and expenses howsoever incurred by the reason of the failure to take delivery.
Claims for non-delivery must be made in writing within five days of the date of the relevant invoice. Claims for damage in transit or incorrect parts must be made in writing to the Company within three days of the date of delivery of the goods. Proof of delivery is not possible after 180 days.
All goods in transit under the control of Jost (UK) Ltd. are carried under conditions of the Road Haulage Association in force at the time of despatch which shall be incorporated herein. Copies can be supplied upon request. In cases of conflict, these conditions shall prevail.
It shall be the responsibility of the Buyer to unload all goods upon arrival. The Buyer undertakes to comply with the terms of the Health and Safety Act 1974 and related legislation in doing so and shall provide all necessary offloading, lifting and handling equipment and facilities.
Upon notification to the Buyer by the Company that the goods are available for delivery at the Company's Works or at the time of despatch or delivery to the carrier whichever shall first occur the risk in the goods shall pass to the Buyer who accordingly shall ensure that the Company shall remain the legal owner of them until such a time as the Buyer should pay to the Company the full price thereof. The Buyer acknowledges that until such time it is in possession of the goods solely as bailee and shall store the goods separately from its own goods and in such fashion as to be readily identifiable by the Company. Storage shall be within a building so that the goods will not be subject to deterioration.
The Buyer is hereby granted a licence by the Company to process the goods in such a fashion as the Buyer may wish and/or incorporate them in any other product or products subject to the expressed condition that if the Company shall so require the new product or products or any chattel whatsoever containing goods of the Company shall be separately stored and so marked as to be identifiable as being made from or with the goods of the Company.
The Buyer is hereby licensed to sell on any new products or other chattels so produced but shall hold the whole of the proceeds of such sale as trustee and agent of the Company and shall not mingle any of the proceeds of sale with the Buyer's own monies or in any Bank Account with other monies but shall ensure that all such receipts of sale are separate and identifiable. Moreover the Buyer shall immediately on receipt of the proceeds of sale remit to the Company the full price of all goods supplied under this Contract.
If the Buyer has not received the proceeds of any such sale on the due date the Buyer will within seven days notify the Company and if called upon to do so assign to the Company any claim of any nature whatsoever against the person or persons to whom the Buyer has supplied the product or chattel made from or with the Company's goods.
The Buyer shall allow reasonable access by prior appointment to enable the Company to carry out periodic stock checks.
Where goods are handed to a carrier for carriage to the Buyer, the carrier shall be an agent of the Company and not of the Buyer for the purpose of sections 44, 45, 46 of the Sale of Goods Act 1979.
In cases of goods supplied by the Company on a sale or return basis the Buyer shall notify the Company immediately in writing when the goods have been utilised. Payment of the Vendors invoices covering the goods utilised shall be paid within thirty days of the date of the invoice.
Except as set out below, any warranties (whether express or implied by statute, common law or otherwise) are hereby excluded.
All goods supplied by the Company are guaranteed under normal usage and conditions for a period of twelve months from the date of delivery to the Buyer.
The Company will at its election replace or repair the Goods or any part thereof which are proved to the reasonable satisfaction of the Company to have been defective provided that:
Written notice of each such defect is given to the Company within twelve months from the date of delivery to the Buyer.
The Company is given the full opportunity to investigate and inspect the Goods and defective parts thereof.
Replacement and repaired Goods under this guarantee shall only be guaranteed for the residue (if any) of the original twelve months period.
The Company's guarantee does not include labour charges of the repair which shall be for the account of the Buyer.
The Company does not accept responsibility for defects or damage caused or contributed to by:
unsuitable or careless use or handling or storage or faulty erection, installation or assembly or operation by the Buyer or any other person or
defective process materials, or
normal wear and tear, or
failure to maintain the Goods in accordance with the Company's written or oral instructions (if any) or otherwise in a reasonable manner, or
any fittings, alterations, addition to or adaptation of the Goods including (without limit) fittings, alterations, additions or adaptations using parts, equipment or materials not supplied or manufactured by the Company.
Subject to the provisions of paragraph (9) below, the Buyer shall meet the cost of and expense of any inspection and other costs including labour and parts relating to the Goods (including carriage to or from the Company's premises) where the defect is found not to be the responsibility of the Company under this guarantee.
All goods forwarded to the Company's premises for inspection shall be forwarded by prepaid freight or post and such charges will be reimbursed to the Buyer by the Company if the defect is found to be the responsibility of the Company under this guarantee.
The Company may refuse to fulfil this guarantee or any part thereof if and so long as the Buyer has not paid in full for the goods or any parts thereof or does not fulfil its contractual obligations under any contract existing between the Company and the Buyer.
Subject to 10(b) the Company shall under no circumstances be liable for any indirect, special or consequential loss (including but not limited to loss of anticipated profit or third party claims) howsoever arising whether in contract tort (including negligence) or breach of statutory duty or otherwise.
Neither party excludes loss arising from death or personal injury caused by its negligence.
Subject to clause 10(b) the aggregate liability of the Company (whether in contract, tort (including negligence) or breach of statutory duty or otherwise) to the Buyer for any loss or damage (whatsoever nature and howsoever caused) shall be limited to and in no circumstances shall exceed the price of the Goods.
If before all the monies payable under the contract are paid, the Buyer (being an individual or Company) shall be the subject of a receiving order in bankruptcy or shall make any assignment or deed of arrangement for or any composition with creditors generally or (being a company) shall become the subject of a winding up or of the appointment of a receiver or receiver and manager, or shall make any arrangement with its creditors generally, or if any execution is levied or any distress is threatened or made at any premises occupied by the Buyer, or if the Buyer ceases to carry on business, or defaults in any payment or is otherwise in breach of its obligations (and fails to remedy the breach having been given fourteen days notice), then without prejudice to the rights of the Company to exercise any other remedies, the Company shall be entitled to suspend or cancel any uncompleted part of the contract and/or stop any goods in transit by giving written notice to the Buyer.
If the Company gives such notice then the Company shall be entitled:
forthwith to retake possession of the Goods free from all rights or interest therein of the Buyer.
to retain all monies paid by the Buyer.
(a) Where any contract provides for delivery by installments or on call by the Buyer then if any payment shall not have been made in accordance with the provisions of Clause 5 hereof the Company shall have the right to treat the contract as repudiated and where the right is exercised the Company shall be under no further liability of any kind.
(b) Each installment or delivery shall be deemed to be sold under a separate contract and failure by the Company to deliver or by the Buyer to pay for any one or more installments shall not (subject as before herein provided) entitle the Buyer to treat such failure as a repudiation of any further installments which the Company shall be entitled to deliver or not deliver as it thinks fit.
The Buyer shall not be entitled to return any Goods to the Company as surplus to requirements or otherwise without the prior consent in writing of the Company.
These conditions shall be construed in accordance with English Law. In the event of any dispute arising the same shall be determined by the English Courts of Law.
No amendment or variation of the terms of the Contract shall be binding upon the Company unless confirmed by the Company in writing.
The Company shall not be liable to the Buyer for any loss or damage caused to or suffered by the Buyer as a direct or indirect result of the supply of goods by the Company being prevented, restricted, hindered or delayed by reasons of any circumstances outside the control of the Company.
If any of these conditions (or any part thereof) becomes to any extent invalid, illegal or unenforceable, it shall not form part of these conditions but all other provisions shall continue in full force and effect.
RETENTION OF TITLE
The Goods the subject of any invoice shall remain the sole and absolute property of Jost (UK) Ltd. as legal and equitable owner until such time as the Purchaser shall have paid to Jost the full amount of the price of the Goods together with the full price of any other Goods the subject of any other Contract with Jost.
Notwithstanding that the Goods remain the sole and absolute property of Jost (UK) Ltd. the Purchaser shall assume the risk in the Goods and shall insure the Goods for their full market value.
Jost (UK) Ltd. may for the purpose of recovery of the Goods enter upon any premises where they are stored or where they are reasonably thought to be stored and may repossess the same.
Until such time as the Purchaser becomes the owner of the Goods it will store them on its premises separately from its own Goods or those of any person and in a manner which makes them readily identifiable as the Goods of Jost UK Ltd.
The Purchaser acknowledges that it is in possession of the Goods solely as a fiduciary for Jost UK Ltd. until the Purchaser becomes the owner of the Goods. In the event that the Purchaser sells the Goods the Purchaser acknowledges that the entire proceeds of sale thereof are held in trust for Jost UK Ltd. and shall not be mingled with other monies or paid into any overdrawn Bank Account and shall be at all times identifiable as Jost's monies.
The order is subject to the following terms
"Buyer" means Jost (UK) Limited.
"Seller" means the person, firm or company to whom the order is addressed.
"Goods" means the articles or thing or any of them described in the order.
"Specifications" means the technical (if any) of the goods contained or referred to in the order.
"Order" means the order placed by the buyer for the supply of the goods.
The buyer shall be bound by his order only
If it is placed on his official order form
The seller accepts it in writing within 10 days of the date of the order giving a definite delivery date of delivery.
Neither the buyer nor the seller shall be bound by any variation, waiver of, or addition to these conditions, except as agreed by both parties in writing and signed on their behalf.
4. Quality and Description
Subject to clauses 10 and 11 the goods shall:
Conform to quality, quality and description with the particulars stated in the order.
Be of sound material and workmanship.
Be equal in all respects to the samples, patterns or specification provided or given by either party.
Be capable of any standard of performance specified in the order.
If the purpose for which they are required is indicated in the order either expressly or by implication be fit for that purpose.
5. Inspection and Testing
Before dispatching the goods the seller shall carefully inspect and test them for compliance with the provisions of clause 4. The seller shall, if requested by the buyer give the buyer reasonable notice of such tests and the buyer shall be entitled to be represented thereat.
The seller shall also at the request of the buyer, supply to the buyer a copy of the seller's test sheets certified by the seller to be a true copy.
The buyer shall have the right for themselves their agents or third parties to inspect and test the materials and workmanship of all goods at all times and places including where practical during manufacture and if any such inspection or if any test is made on the premises of the seller, the seller shall furnish without additional charge all reasonable facilities and assistance for a safe and convenient inspection or test. Any such inspection shall not relieve the seller of its obligations hereunder nor imply acceptance by the buyer.
If as a result of any inspection or test under sub-clause (1) or (2) of this clause the buyer's representative is of reasonable opinion that the goods do not comply with the order, or are unlikely on completion of manufacture or processing so to comply he shall inform the seller accordingly in writing and the seller shall take such steps as may be necessary to ensure such compliance.
Notwithstanding the foregoing provisions of this clause all goods supplied may still be subject to Goods Inwards Inspection and any items found not in accordance with these terms will be rejected and the seller informed accordingly in writing.
6. Delivery, Crating, Invoices, Shipping Documents
The goods properly packed and secured in such manner as to reach their destination in good condition under normal conditions of transport shall be delivered by the seller at, or dispatched for delivery to, the place or places and in the manner specified in the order or as subsequently agreed. Any goods shipped in excess of those ordered may be returned by the buyer at the seller's expense.
Crating. Invoices shall not be sent by the seller for any packaging materials, which shall be free toe buyer. The buyer accepts no responsibility for containers, boxes or any packaging material and shall not be liable for their return.
Invoices bearing the buyer's purchase order number, the buyer's part number and description of the goods, the seller's part number and the point of delivery are required for each individual order and shipment. The original bill of lading, express receipts and other necessary documents properly signed by the carrier and dated must be attached to the seller's invoices and both mailed not later than the day of shipment.
Packing Slips showing the buyer's purchase order number, the buyer's part number the seller's part number and point o f delivery must accompany all shipments. All packages must be inscribed on the exterior with the same information.
Delivery Date shall be the date on which properly prepared papers and due performance of all other terms herein have been completed by the seller and received by the buyer.
If for any reason the buyer is unable to accept delivery of the goods at the time when the goods are due and ready for delivery the seller shall, if his storage facilities permit, store the goods, safeguard them and take all reasonable steps to prevent their deterioration until their actual delivery and the buyer shall be liable to the seller for the reasonable cost (including) insurance of his doing so.
8. Passing of property
Subject to the provisions of paragraph (2) of this clause the property in the goods shall pass to the buyer on delivery without prejudice to any right of rejection which may accrue to the buyer under these conditions.
If the seller postpones delivery at the request of the buyer pursuant to clause 7 the property in the goods shall pass to the buyer seven days after the date of receipt of notification from the seller that the goods are due and ready for delivery or on such other dates as may be agreed but the goods shall nevertheless remain at the seller's risk until delivery has been completed.
The seller shall deliver the goods at the times specified in the order. Time shall begin to run from the date of acceptance by the seller of the order or the date on which the seller is placed in possession of such information and drawings as may be necessary to enable him to start work on the goods, whichever may be the later. If owing to industrial disputes or any causes outside the seller's control the seller is unable to deliver the goods within the specified time then the buyer may at his discretion grant he seller such extension of time as may be reasonable.
If the goods or any portion thereof are not delivered within the time or times specified in the contract or any extension of such time or times, the buyer shall be entitled to determine the contract in respect of the goods undelivered as aforesaid and of any other goods already delivered under the contract which cannot be effectively and commercially used by reason of non delivery of the goods undelivered as aforesaid. On such determination the buyer shall be entitled:
a) to return to the seller at the seller's risk and expense any of the goods already delivered but which cannot be effectively and commercially used as aforesaid and to recover from the seller any monies paid by the buyer in respect of such goods.
b) To recover from the seller any additional expenditure reasonably incurred by the buyer in obtaining other goods in replacement of those in respect of which the contract has been determined.
The buyer may by notice in writing to the seller reject the goods if the seller fails to comply with his obligations under clause 5 hereof and may also by notice in writing to the seller given within twenty-eight days or such other longer but reasonable period, reject the goods which are found not to be in accordance with the contract.
The buyer shall when giving notice of rejection specify the reasons thereof and shall thereafter return the rejected goods to the seller at the seller's risk and expense. In such case the seller shall within a reasonable time replacesuch rejected goods with goods which are in all respects in accordance with the contract.
Any money paid by the buyer to the seller in respect of any rejected goods not replaced by the seller within a reasonable time together with any additional expenditure over and above the contract price reasonably incurred by the buyer in obtaining other goods in replacement shall be paid by the seller to the buyer.
11. Guarantee and Indemnity
If within the period after delivery named in the order (hereinafter called "the guarantee period") the buyer gives notice in writing to the seller of any defect in the goods which shall arise under proper use from faulty design (other than a design made, furnished or specified by the buyer for which the seller has in writing disclaimed responsibility), materials or workmanship, then the seller shall with all possible speed replace or repair the goods so as to remedy the defects without cost to the buyer.
The buyer shall, as soon as practicable after discovering any such defect or failure, return the defective goods or parts thereof to the seller and at the seller's risk and expense unless it has been agreed between the parties that the necessary replacement or repair shall be carried out by the seller on the buyer'' premises.
Subject to the conditions of sub-condition (2) hereof the seller shall indemnify the buyer against any claim for personal injury damage or loss of any kind attributable to any defects in the goods (save as aforesaid in relation to their design) of the kind referred to in sub-condition (1) hereof whether such claim arises or is made during or after the expiration of the guarantee period.
12. Damage or loss in Transit
The seller will repair or replace, free of charge goods damaged or lost in transit provided the buyer shall give to the seller written notification of such damage or loss within such time as will enable the seller to comply with the carrier's conditions of carriage, as affecting loss or damage in transit, or where delivery is made by the seller's own transport within a reasonable time.
13. Payment and Freight Rates
Payment of the price shall be made within the period after delivery specified in the order, or if delivery is postponed at the request of the buyer as provided in clause 7 within the same period after the date when the property in the goods passed to the buyer under that clause.
Any reduction in the seller's costs resulting from a reduction in rate freight, customs, duties, import, and/or sales taxes from those in force at the date of the seller's acceptance of the order shall be paid by the seller to the buyer in reduction.
The seller shall insure in joint names of the buyer and seller any material or property sent to the seller by the buyer for any purpose in connection with the contract against any damage which may occur to it whilst in his custody.
15. Statutory Requirements
The seller warrants that the design, construction and quality of goods to be supplied under the contract comply in all respects with all relevant requirements of any statute, statutory, statutory rule or order, or other instrument having the force of law which may be in force at the time when the same are supplied.
The seller hereby indemnifies the buyer against all claims for personal injury, damage, or loss of any kind and against the costs of such claims attributable to, or arising out of any breach of he foregoing warranty or resulting from any defect whatsoever in the goods.
16. Infringement of Patents
The seller shall fully indemnify the buyer against any action, claim, demand, costs, charges and expenses arising from or incurred by reason of any infringement or alleged infringement of any letters, patent registered design, trade mark, or trade name protected in the United Kingdom by the use or sale of the goods and against all costs and damages which the buyer may incur in any action for such infringement or for which the buyer may become liable in any such action PROVIDED ALWAYS that this indemnity shall not apply to any infringement which is due to the seller having followed a design or instruction furnished by the buyer or to the use of the goods in a manner or for a purpose not reasonably to be inferred by the seller or disclosed to the seller prior to the making of the contract.
17. Bankruptcy or Liquidation
If the seller being an individual (or, when the seller is a firm, any partner in that firm) shall at any time become bankrupt , or shall have a receiving order or administration order made against him or shall make any composition or arrangement with, or for the benefit of his creditors, or shall make any conveyance or assignment for the benefit of his creditors or shall purport to do so, or if in Scotland he shall become insolvent or notour bankrupt, or any application shall be made under any Bankruptcy Act for time being in force for sequestration his estate, or a trust deed shall be granted by him or his creditors, or if the seller, being a company, shall pass a resolution, or the court shall make an order that the company shall be wound up (not being a members' winding up for the purpose of reconstruction or amalgamation) or if a receiver, or manager on behalf of a creditor, shall be appointed, or if circumstances shall arise which entitle the court or a creditor to appoint a receiver or manager ,or which entitle the court to make a winding-up order, then the buyer shall be at liberty:
a) to cancel the order summarily by notice in writing without compensation to the seller;
b) to give any such receiver or liquidator or other person the option of carrying out the contract.
The exercise of any of the rights granted to the buyer under sub-clause (1) hereof shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to the buyer.
The seller shall have the right to cancel an order hereunder in the event of the buyer becomes insolvent or makes an assignment for the benefit of its creditors or goes into compulsory liquidation.
18. Seller's Labours
The seller shall subject to clause (2), (3) and (4) of this clause indemnify the buyer in respect of all damage or injury occurring to any person or to any property and against all actions, suits, claims, demands, costs, charges or expenses arising in connection therewith to the extent that the same shall have been occasioned by the negligence of the seller, his servants or agents during such time as he or they were on, entering into or departing from the buyer's premises for any purpose connected with the contract, or were otherwise performing labour for he buyer pursuant to the order.
In the event of any claim being made against the buyer by reason of any matter referred to and in respect of which the seller is liable under this clause the seller shall be promptly notified thereof and may at his own expense conduct all negotiations for the settlement of the same and any litigation that may arise therefrom. The buyer shall not unless and until the seller shall have failed to take over the conduct of the negotiations or litigation make any admission, which might be prejudice thereto. The conduct by the buyer or such negotiations or litigation's shall be conditional upon the seller having first given to the buyer such reasonable security as shall from time to time be required by the buyer to cover the amount ascertained, or agreed, or estimated as the case may be, of any compensation, damages, expenses and costs for which the buyer may become liable. The buyer shall at the request of the seller afford all available assistance for any such purpose and shall be repaid any out of pocket expenses incurred in doing so.
Waiver of the buyer of any specific default or defaults of the seller or failure by the buyer to cancel the order or any part thereof when a right of cancellation arises shall not constitute a waiver by the buyer of any of the conditions of the order with respect to any further or subsequent default by the seller or cause herein stated to give rise to a right of cancellation.
20. Proper Law
Unless otherwise agreed the contract shall be subject to English Law.