General

General conditions for the supply and payment of Marel TREIF GmbH, Oberlahr, outside the Federal Republic of Germany


PREAMBLE
1. These General Conditions shall apply when the parties agree In Writing or otherwise thereto. Any
modifications of or deviations from them must be agreed In Writing.

DEFINITIONS
2. In these General Conditions the following terms shall have the meanings hereunder assigned to them:
- “Contract”: the agreement In Writing between the parties concerning supply of the Product and all appendices,
including agreed amendments and additions In Writing to the said documents;
- “Gross Negligence”: an act or omission implying either a failure to pay due regard to serious consequences,
which a conscientious contracting party would normally foresee as likely to ensue, or a deliberate disregard of
the consequences of such an act or omission;
- “In Writing”: communication by document signed by both parties or by letter, fax, electronic mail and by such
other means as are agreed by the parties;
- “the Product”: the object(s) to be supplied under the Contract, including software and documentation.

PRODUCT INFORMATION
3. All information and data contained in general product documentation and price lists shall be binding only to the extent that they are by reference In Writing expressly included in the Contract.

DRAWINGS AND TECHNICAL INFORMATION
4. All drawings and technical documents relating to the Product or its manufacture submitted by one party to the other, prior or subsequent to the formation of the Contract, shall remain the property of the submitting party.
Drawings, technical documents or other technical information received by one party shall not, without the consent of the other party, be used for any other purpose than that for which they were provided. They may not, without the consent of the submitting party, otherwise be used or copied, reproduced, transmitted or
communicated to a third party.
5. The Supplier shall, not later than at the date of delivery, provide free of charge information and drawings which are necessary to permit the Purchaser to install, commission, operate and maintain the Product. Such information and drawings shall be supplied in the number of copies agreed upon or at least one copy of each. The Supplier shall not be obliged to provide manufacturing drawings for the Product or for spare parts.

ACCEPTANCE TESTS
6. Acceptance tests provided for in the Contract shall, unless otherwise agreed, be carried out at the place of manufacture during normal working hours. If the Contract does not specify the technical requirements, the tests shall be carried out in accordance with general practice in the appropriate branch of industry concerned in the country of manufacture.
7. The Supplier shall notify the Purchaser In Writing of the acceptance tests in sufficient time to permit the Purchaser to be represented at the tests. If the Purchaser is not represented, the test report shall be sent to the Purchaser and shall be accepted as accurate.
8. If the acceptance tests show the Product not to be in accordance with the Contract, the Supplier shall without delay remedy any deficiencies in order to ensure that the Product complies with the Contract. New tests shall
then be carried out at the Purchaser’s request, unless the deficiency was insignificant.
9. The Supplier shall bear all costs for acceptance tests carried out at the place of manufacture. The Purchaser shall however bear all travelling and living expenses for his representatives in connection with such tests.

DELIVERY. PASSING OF RISK
10. Any agreed trade term shall be construed in accordance with the INCOTERMS® in force at the formation of the Contract. If no trade term has been specifically agreed, the delivery shall be Free Carrier (FCA) at the place named by the Supplier.
If, in the case of delivery Free Carrier, the Supplier, at the request of the Purchaser, undertakes to send the Product to its destination, the risk will pass not later than when the Product is handed over to the first carrier.
Partial delivery shall not be permitted, unless otherwise agreed.

TIME FOR DELIVERY. DELAY
11. If the parties, instead of specifying the date for delivery, have specified a period of time within which delivery shall take place, such period shall start to run as soon as the Contract is entered into and all agreed preconditions to be fulfilled by the Purchaser have been satisfied, such as official formalities, payments due at
the formation of the Contract and securities.
12. If the Supplier anticipates that he will not be able to deliver the Product at the time for delivery, he shall forthwith notify the Purchaser thereof In Writing, stating the reason and, if possible, the time when delivery can be expected. If the Supplier fails to give such notice, the Purchaser shall be entitled to compensation for any additional costs which he incurs and which he could have avoided had he received such notice.
13. If delay in delivery is caused by any of the circumstances mentioned in Clause 41, by an act or omission on the part of the Purchaser, including suspension under Clauses 21 and 44, or any other circumstances attributable to the Purchaser, the Supplier shall be entitled to extend the time for delivery by a period which is
necessary having regard to all the circumstances of the case. This provision shall apply regardless of whether the reason for the delay occurs before or after the agreed time for delivery.
14. If the Product is not delivered at the time for delivery, the Purchaser shall be entitled to liquidated damages from the date on which delivery should have taken place. The liquidated damages shall be payable at a rate of 0.5 per cent of the purchase price for each commenced
week of delay. The liquidated damages shall not exceed 7.5 per cent of the purchase price.
If only part of the Product is delayed, the liquidated damages shall be calculated on that part of the purchase price which is attributable to such part of the Product as cannot in consequence of the delay be used as intended
by the parties. The liquidated damages shall become due at the Purchaser’s demand In Writing but not before delivery has been completed or the Contract is terminated under Clause 15. The Purchaser shall forfeit his right to liquidated damages if he has not lodged a claim In Writing for such damages within six months after the time when delivery should have taken place.
15. If the delay in delivery is such that the Purchaser is entitled to maximum liquidated damages under Clause 14 and if the Product is still not delivered, the Purchaser may In Writing demand delivery within a final reasonable
period which shall not be less than one week.
If the Supplier does not deliver within such final period and this is not due to any circumstances which are attributable to the Purchaser, then the Purchaser may by notice In Writing to the Supplier terminate the Contract in respect of such part of the Product as cannot in consequence of the Supplier’s failure to deliver be used as intended by the parties. If the Purchaser terminates the Contract he shall be entitled to compensation for the loss he suffers as a result of the Supplier’s delay, including any consequential and indirect loss. The total compensation, including the liquidated damages which are payable under Clause 14, shall not exceed 15 per cent of that part of the purchase price which is attributable to the part of the Product in respect of which the Contract is terminated. The Purchaser shall also have the right to terminate the Contract by notice In Writing to the Supplier, if it is clear
from the circumstances that there will occur a delay in delivery which, under Clause 14, would entitle the Purchaser to maximum liquidated damages. In case of termination for this reason, the Purchaser shall be entitled to maximum liquidated damages and compensation under the third paragraph of this Clause 15.
16. Liquidated damages under Clause 14 and termination of the Contract with limited compensation under Clause 15 shall be the only remedies available to the Purchaser in case of delay on the part of the Supplier. All other claims against the Supplier based on such delay shall be excluded, except where the Supplier has been guilty of Gross Negligence.
17. If the Purchaser anticipates that he will be unable to accept delivery of the Product at the time for delivery, he shall forthwith notify the Supplier In Writing thereof, stating the reason and, if possible, the time when he will be
able to accept delivery. If the Purchaser fails to accept delivery at the time for delivery, he shall nevertheless pay any part of the purchase price which becomes due at the time for delivery, as if delivery had taken place at the time for delivery. The Supplier shall arrange for storage of the Product at the risk and expense of the Purchaser. The Supplier shall also, if the Purchaser so requires, insure the Product at the Purchaser’s expense.
18. Unless the Purchaser’s failure to accept delivery is due to any such circumstance as mentioned in Clause 41, the Supplier may by notice In Writing require the Purchaser to accept delivery within a final reasonable period. If, for any reason which is not attributable to the Supplier, the Purchaser fails to accept delivery within such period, the Supplier may by notice In Writing terminate the Contract in whole or in part. The Supplier shall then be entitled to compensation for the loss he suffers by reason of the Purchaser’s default, including any consequential and indirect loss. The compensation shall not exceed that part of the purchase price which is attributable to that part of the Product in respect of which the Contract is terminated.

PAYMENT
19. Payment shall be made within 30 days after the date of invoice. Unless otherwise agreed, the purchase price shall be paid with one third at the formation of the Contract and one third when the Supplier notifies the Purchaser that the Product, or the essential part of it, is ready for delivery. The remaining part of the purchase price shall be paid when the entire Product is delivered.
20. Whatever the means of payment used, payment shall not be deemed to have been effected before the Supplier’s account has been irrevocably credited for the amount due.
21. If the Purchaser fails to pay by the stipulated date, the Supplier shall be entitled to interest from the day on which payment was due and to compensation for recovery costs. The rate of interest shall be as agreed between
the parties or otherwise 8 percentage points above the rate of the main refinancing facility of the European Central Bank. The compensation for recovery costs shall be 1 per cent of the amount for which interest for late payment becomes due. In case of late payment and in case the Purchaser fails to give an agreed security by the stipulated date the Supplier may, after having notified the Purchaser In Writing, suspend his performance of the Contract until he receives payment or, where appropriate, until the Purchaser gives the agreed security.
If the Purchaser has not paid the amount due within three months the Supplier shall be entitled to terminate the Contract by notice In Writing to the Purchaser and, in addition to the interest and compensation for recovery costs according to this Clause, to claim compensation for the loss he incurs. Such compensation shall not exceed the agreed purchase price.

RETENTION OF TITLE
22. The Product shall remain the property of the Supplier until paid for in full to the extent that such retention of title is valid under the relevant law. The Purchaser shall at the request of the Supplier assist him in taking any measures necessary to protect the Supplier’s title to the Product. The retention of title shall not affect the passing of risk under Clause 10.

LIABILITY FOR DEFECTS
23. Pursuant to the provisions of Clauses 24-39, the Supplier shall remedy any defect or nonconformity (hereinafter termed defect(s)) resulting from faulty design, materials or workmanship.
24. The Supplier shall not be liable for defects arising out of materials provided or a design stipulated or specified by the Purchaser.
25. The Supplier shall only be liable for defects which appear under the conditions of operation provided for in the Contract and under proper use of the Product.
26. The Supplier shall not be liable for defects caused by circumstances, which arise after the risk has passed to the Purchaser, e.g. defects due to faulty maintenance, incorrect installation or faulty repair by the Purchaser or to
alterations carried out without the Supplier’s consent In Writing. The Supplier shall neither be liable for normal wear and tear nor for deterioration.
27. The Supplier’s liability shall be limited to defects which appear within a period of one year from delivery. If the use of the Product exceeds that which is agreed, this period shall be reduced proportionately.
28. When a defect in a part of the Product has been remedied, the Supplier shall be liable for defects in the repaired or replaced part under the same terms and conditions as those applicable to the original Product for a period of one year. For the remaining parts of the Product the period mentioned in Clause 27 shall be extended only by a period equal to the period during which and to the extent that the Product could not be used as a result of the defect.
29. The Purchaser shall without undue delay notify the Supplier In Writing of any defect which appears. Such notice shall under no circumstances be given later than two weeks after the expiry of the period given in Clause
27 or the extended period(s) under Clause 28, where applicable. The notice shall contain a description of the defect. If the Purchaser fails to notify the Supplier In Writing of a defect within the time limits set forth in the first
paragraph of this Clause, he shall lose his right to have the defect remedied. Where the defect is such that it may cause damage, the Purchaser shall immediately inform the Supplier In Writing. The Purchaser shall bear the risk of damage to the Product resulting from his failure so to notify. The Purchaser shall take reasonable measures to minimise damage and shall in that respect comply with instructions of the Supplier.
30. On receipt of the notice under Clause 29 the Supplier shall at his own cost remedy the defect without undue delay, as stipulated in Clauses 23-39. The time for remedial work shall be chosen in order not to interfere
unnecessarily with the Purchaser’s activities.
Repair shall be carried out at the place where the Product is located unless the Supplier deems it more appropriate that the Product is sent to him or a destination specified by him.
If the defect can be remedied by replacement or repair of a defective part and if dismantling and re-installation of the part do not require special knowledge, the Supplier may demand that the defective part is sent to him or a
destination specified by him. In such case the Supplier shall have fulfilled his obligations in respect of the defect when he delivers a duly repaired part or a part in replacement to the Purchaser.
31. The Purchaser shall at his own expense provide access to the Product and arrange for any intervention in equipment other than the Product, to the extent that this is necessary to remedy the defect.
32. Unless otherwise agreed, necessary transport of the Product or parts thereof to and from the Supplier in connection with the remedying of defects for which the Supplier is liable shall be at the risk and expense of the Supplier. The Purchaser shall follow the Supplier’s instructions regarding such transport.
33. Unless otherwise agreed, the Purchaser shall bear any additional costs which the Supplier incurs for remedying the defect caused by the Product being located in a place other than the destination stated at the
formation of the Contract for the Supplier’s delivery to the Purchaser or – if no destination has been stated – the place of delivery.
34. Defective parts which have been replaced shall be made available to the Supplier and shall be his property.
35. If the Purchaser has given such notice as mentioned in Clause 29 and no defect is found for which the Supplier is liable, the Supplier shall be entitled to compensation for the costs he incurs as a result of the notice.
36. If the Supplier does not fulfil his obligations under Clause 30, the Purchaser may by notice In Writing fix a final reasonable period for completion of the Supplier’s obligations, which shall not be less than one week. If the Supplier fails to fulfil his obligations within such final period, the Purchaser may himself undertake or
employ a third party to undertake necessary repair work at the risk and expense of the Supplier. Where successful repair work has been undertaken by the Purchaser or a third party, reimbursement by the Supplier of reasonable costs incurred by the Purchaser shall be in full settlement of the Supplier’s liabilities for the said defect.
37. Where the Product has not been successfully repaired, as stipulated under Clause 36,
a) the Purchaser shall be entitled to a reduction of the purchase price in proportion to the reduced value of the Product, provided that under no circumstances shall such reduction exceed 15 per cent of the purchase price, or
b) where the defect is so substantial as to significantly deprive the Purchaser of the benefit of the Contract as regards the Product or a substantial part of it, the Purchaser may terminate the Contract by notice In Writing to
the Supplier in respect of such part of the Product as cannot in consequence of the defect be used as intended by the parties. The Purchaser shall then be entitled to compensation for his loss, costs and damages up to a
maximum of 15 per cent of that part of the purchase price which is attributable to the part of the Product in respect of which the Contract is terminated.
38. Notwithstanding the provisions of Clauses 23-37 the Supplier shall not be liable for defects in any part of the Product for more than one year from the end of the liability period referred to in Clause 27 or from the end of any
other liability period agreed upon by the parties.
39. Save as stipulated in Clauses 23-38, the Supplier shall not be liable for defects. This applies to any loss the defect may cause including loss of production, loss of profit and other indirect loss. This limitation of the Supplier’s liability shall not apply if he has been guilty of Gross Negligence.

ALLOCATION OF LIABILITY FOR DAMAGE CAUSED BY THE PRODUCT
40. The Supplier shall not be liable for any damage to property caused by the Product after it has been delivered and whilst it is in the possession of the Purchaser. Nor shall the Supplier be liable for any damage to products
manufactured by the Purchaser or to products of which the Purchaser’s products form a part.
If the Supplier incurs liability towards any third party for such damage to property as described in the preceding paragraph, the Purchaser shall indemnify, defend and hold the Supplier harmless. If a claim for damage as described in this Clause is lodged by a third party against one of the parties, the latter party shall forthwith inform the other party thereof In Writing. The Supplier and the Purchaser shall be mutually obliged to let themselves be summoned to the court or arbitral tribunal examining claims for damages lodged against one of them on the basis of damage allegedly caused by the Product. The liability between the Supplier and the Purchaser shall however be settled in accordance with Clause 46. The limitation of the Supplier’s liability in the first paragraph of this Clause shall not apply where the Supplier has been guilty of Gross Negligence.

FORCE MAJEURE
41. Either party shall be entitled to suspend performance of his obligations under the Contract to the extent that such performance is impeded or made unreasonably onerous by Force Majeure, meaning any of the following
circumstances: industrial disputes and any other circumstance beyond the control of the parties such as fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power, currency and export restrictions, epidemics, natural disasters, extreme natural events, terrorist acts and defects or delays in deliveries by sub-contractors caused by any such circumstance referred to in this Clause. A circumstance referred to in this Clause whether occurring prior to or after the formation of the Contract shall
give a right to suspension only if its effect on the performance of the Contract could not be foreseen at the time of the formation of the Contract.
42. The party claiming to be affected by Force Majeure shall notify the other party In Writing without delay on the intervention and on the cessation of such circumstance. If a party fails to give such notice, the other party shall
be entitled to compensation for any additional costs which he incurs and which he could have avoided had he received such notice.
If Force Majeure prevents the Purchaser from fulfilling his obligations, he shall compensate the Supplier for expenses incurred in securing and protecting the Product.
43. Regardless of what might otherwise follow from these General Conditions, either party shall be entitled to terminate the Contract by notice In Writing to the other party if performance of the Contract is suspended under
Clause 41 for more than six months.

ANTICIPATED NON-PERFORMANCE
44. Notwithstanding other provisions in these General Conditions regarding suspension, each party shall be entitled to suspend the performance of his obligations under the Contract, where it is clear from the circumstances that the other party is not going to perform his obligations. A party suspending his performance of
the Contract shall forthwith notify the other party thereof In Writing.

CONSEQUENTIAL LOSSES
45. Save as otherwise stated in these General Conditions there shall be no liability for either party towards the other party for loss of production, loss of profit, loss of use, loss of contracts or for any other consequential or
indirect loss whatsoever.

DISPUTES AND APPLICABLE LAW
46. All disputes arising out of or in connection with the Contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.
47. The Contract shall be governed by the substantive law of the Switzerland.
48. Privacy Clause in the Terms and Conditions

TREIF ensures compliance with current legal privacy provisions pursuant to the EU-GDPR and the new Federal Data Protection Act (BDSG-new) and to this end has published the current Privacy Policy for all interested
parties on the website www.treif.de.
The customer hereby expressly consents to the collection, processing and use of the personal data required for contract execution purposes and for the fulfilment of contractual and non-contractual obligations of TREIF. The customer has the right to withdraw consent with future effect at any time. TREIF hereby states that for the fulfilment of its contractual and non-contractual obligations it may use third-parties to whom the collected data may be transferred in order to fulfil these obligations. Examples of third parties specified in this regard may be contractual partners, suppliers, transportation companies, credit card companies and marketing service providers. More information can be found in the relevant points in the Privacy Statement published on our website.

UK

Terms and conditions of sale: Goods and Services (“Terms”)





1. INTERPRETATION

1.1 The following definitions and rules of interpretation in this clause apply in these Terms:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: has the meaning set out in clause 2.1 (for Equipment Supplies and Installation Services), in clause 2.2 (Supplemental Goods) or in clause 2.3 (Equipment Services).
Contract: the terms and conditions on which Goods and/or Services are supplied by the Supplier to the Customer being these Terms and, in the case of Equipment Supplies, Installation Services and Supplemental Goods, the relevant Order Confirmation, and in the case of Equipment Services, the Services Agreement.
Customer: the person or legal entity who purchases Services or Goods from the Supplier, as detailed in the Order Confirmation or Services Agreement as the case may be.
Delivery: has the meaning given in clause 5.5 with deemed Delivery being as set out in clause 5.8.
Delivery Date: the date specified for the delivery of Goods or Services in an Order Confirmation or Services Agreement or, if no date is specified, the date that delivery takes place or is deemed to take place in accordance with clause 5.
Delivery Location: has the meaning given in clause 5.2
Equipment: the equipment to be supplied by the Supplier as detailed in an Order Confirmation.
Equipment Services: means any servicing and maintenance services to be provided by the Supplier to the Customer as set out in a Services Agreement or Order Confirmation including the provision of any Supplemental Goods as detailed in that Services Agreement or Order Confirmation.
Equipment Supplies: the supplying of Equipment by the Supplier to the Customer on the terms of the Contract.
Force Majeure Event: has the meaning given to it in clause 21.
Good Industry Practice: standards, practices, methods and procedures conforming to the law and the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged in a similar type of undertaking under the same or similar circumstance.
Goods: Equipment and/or any Supplemental Goods.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed between the Customer and the Supplier and incorporated into an Order Confirmation.
Installation Services: the services to be provided by the Supplier in relation to the installation and commissioning of Equipment as detailed in an Order Confirmation.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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: the Customer’s order of Goods and/or Services on the terms of the Contract.
Order Confirmation: a written description from the Supplier of Equipment Supplies, Installation Services, Supplemental Goods or Equipment Services, and any applicable costs, special conditions and timescales as agreed between the Supplier and Customer.
Price: the charges made by the Supplier for Goods and/or Services as detailed in an Order Confirmation for Equipment Supplies, Installation Services and Supplemental Goods or in a Services Agreement for Equipment Services (or as otherwise indicated by the Supplier), payable in accordance with clause 12.
Quotation: a non-legally binding description of any Goods and/or Services to be provided and their cost.
Services: the Installation Services or Equipment Services, or any part of them.
Services Agreement: a detailed description or specification of Equipment Services provided in writing by the Supplier to the Customer setting out the period during which Equipment Services will be provided and the Price (or estimated Price) of such Equipment Services.
Services Specification: where Equipment Services are provided under an Order Confirmation, the specification for such Equipment Services as detailed in the Order Confirmation or otherwise agreed between the Supplier and the Customer.
Spare Parts means Supplemental Goods which are spare parts for Equipment.
Supplemental Goods means Spare Parts, tools, consumables and other goods (excluding Equipment) supplied by the Supplier as may be detailed in a Quotation and/or as confirmed in an Order Confirmation.
Supplier: TREIF (UK) LIMITED a company incorporated and registered in England and Wales with company number 00590394 whose registered office is at Genesis House Poole Hall Industrial Estate, Poole Hall Road, Ellesmere Port, Cheshire CH66 1ST.
Supplier Materials: has the meaning set out in 3.1(h).
VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.
1.2 Clause headings shall not affect the interpretation of these Terms.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and vice versa and a reference to one gender shall include a reference to the other genders.
1.6 A reference to any party shall include that party's personal representatives, successors and permitted assigns.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement and shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.8 A reference to writing or written includes fax and email.
1.9 Any obligation in these Terms on a person not to do something includes an obligation not to agree or allow that thing to be done.
1.10 Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English legal term in that jurisdiction.
1.11 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. FORMATION OF CONTRACT AND BASIS OF SUPPLY
2.1 Equipment Supplies and Installation Services: A Quotation for Equipment Supplies and Installation Services does not form a legally binding offer to enter into a contract but is a scope of supply which is subject to further changes. The Order Confirmation in relation to such Equipment Supplies and Installation Services constitutes an offer by the Supplier to the Customer to purchase the Equipment Supplies and Installation Services in accordance with these Terms and that Order Confirmation. The Supplier’s offer is accepted by the Customer providing a signed copy of the Order Confirmation to the Supplier with a purchase order, and the “Commencement Date” is the date the Order Confirmation is signed and given to the Supplier.
2.2 Supplemental Goods: A Quotation for Supplemental Goods does not form a legally binding offer to enter into a contract but is a scope of supply which is subject to further changes. The Order Confirmation in relation to such Supplemental Goods constitutes an offer by the Supplier to the Customer to purchase such Supplemental Goods in accordance with these Terms. The Supplier’s offer is accepted by the Customer providing a signed copy of the Order Confirmation to the Supplier or otherwise confirming its acceptance in writing and providing a purchase order. The “Commencement Date” is the date the Order Confirmation is signed or such other written confirmation is given to the Supplier.
2.3 Equipment Services: The Supplier shall provide certain Equipment Services and associated Supplemental Goods to the Customer, for the Equipment and duration which are specified in the relevant Services Agreement or Order Confirmation, and the “Commencement Date” is the date specified in the Services Agreement or Order Confirmation as the case may be. The Services Agreement or Order Confirmation constitute an offer by the Supplier to provide the Equipment Services in accordance with these Terms. The Supplier’s offer is accepted by the Customer providing a signed copy of the Services Agreement or the Order Confirmation (as the case may be) or in the case of an Order Confirmation otherwise confirming its acceptance in writing and if requested by the Supplier providing a purchase order.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of Goods or Services contained on the Supplier’s website are issued or published for the sole purpose of giving an approximate idea of the Services and Goods. They shall not form part of the Contract or have any contractual force.
2.6 These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing including but not limited to the Customer’s purchase order.
2.7 Any Quotation shall not constitute an offer, and is only valid for a period of six weeks from the date of issue for Supplemental Goods and Equipment Services, and for the period of time set out in a Quotation for Equipment Supplies and Installation Services. Quotations are not binding and are subject to change until finalised in an Order Confirmation or Services Agreement.
2.8 These Terms shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.9 Time in respect of delivering Goods and/or providing Services is not of the essence.
3. CUSTOMER’S OBLIGATIONS
3.1 The Customer shall:
(a) ensure that the terms of the Order Confirmation, Services Agreement or Services Specification and (if submitted by the Customer) and/or the Goods Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Goods and Services;
(c) provide the Supplier, its employees, agents, consultants and
subcontractors, in a timely manner and at no charge, access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require and ensure that such information is complete and accurate in all material respects;
(e) be responsible (at its own cost) for preparing and maintaining the Delivery Location for the supply of Goods or Services, including identifying, monitoring, removing and disposing of any hazardous materials from the Delivery Location in accordance with applicable laws, before and during the supply of Goods or Services and informing the Supplier of all the Customer’s obligations and actions under this clause 3.1(e);
(f) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Delivery Location;
(g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(h) keep and maintain all materials, equipment, documents and other property of the Supplier (“Supplier Materials”) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
(i) comply with any additional obligations as set out in the Order Confirmation or Services Agreement.
3.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”) then:
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services or supply of Goods until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 3.2; and
(c) the Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from a Customer Default or any fraud or negligence by, or failure to perform or delay in the performance of any of its obligations under this agreement of the Customer, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
4. CHANGES TO SPECIFICATIONS AND SERVICES AGREEMENTS
The Supplier reserves the right to by notice to the Customer amend a Goods Specification, Services Specification and/or Services Agreement if required by any applicable statutory or regulatory requirements or due to Force Majeure, materials or personnel being unavailable, or the Goods Specification, Services Specification or Services Agreement in its reasonable opinion breaches or potentially breaches the Intellectual Property Rights of any third party.
5. DELIVERY
5.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order Confirmation, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
5.2 Unless otherwise agreed in writing, delivery of Goods and/or Services to the Customer shall take place at the address stated on the Order Confirmation or Services Agreement (as relevant) (the “Delivery Location”).
5.3 The time and date estimated for the Delivery Date or completion of Services is not of the essence although the Supplier will make reasonable efforts to make delivery or complete the Services within the time quoted. The Supplier shall not be held responsible or liable for any losses or damage caused to the Customer by late delivery or completion.
5.4 Delays in the delivery of an Order shall not entitle a Customer to:
(a) refuse to take delivery of the Order;
(b) claim damages; or
(c) terminate the Contract, subject to clause 16.
5.5 Delivery of Goods (whether in full or by instalments) shall be completed on the completion of the delivery of those Goods to the Delivery Location (“Delivery”). The Supplier may unload Equipment or provide the Customer with reasonable directions and instructions as to unloading and the Customer agrees to follow such instructions.
5.6 The Customer undertakes to:
(a) provide sufficient access to the Delivery Location to enable the Delivery to be made; and
(b) provide details of any security access at the Delivery Location to the Supplier prior to the Delivery Date.
5.7 The Supplier shall have no liability for any failure or delay in delivering an Order to the extent that such failure or delay is caused by the Customer’s failure to comply with its obligations under these Terms.
5.8 If the Customer fails to accept Delivery on the specified Delivery Date, or if after the Delivery Date, within five Business Days of the Supplier notifying the Customer that the Goods are ready for Delivery, then, except where such failure or delay is caused by the Supplier’s failure to comply with its obligation under these Terms or due to a Force Majeure Event:
(a) Delivery of the Order shall be deemed to have taken place at 9:00am on the Delivery Date or, if after the Delivery Date, the fifth Business Day following the day on which the Supplier notified the Customer that the Order was ready for Delivery; and
(b) the Supplier shall store the Order until Delivery actually takes place, and charge the Customer for all related costs and expenses (including insurance).
5.9 If 30 Business Days after the Supplier notified the Customer that an Order for Goods is ready for Delivery the Customer has not accepted Delivery of such Goods, the Supplier will not refund the Customer any deposit or instalment payments paid towards such Goods and may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer any excess over the price of the Goods or charge the Customer for any difference between the sale price the Supplier achieves from a third party for the Goods.
5.10 The Supplier may deliver an Order by instalments. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6. QUALITY OF GOODS
6.1 The Supplier warrants that in relation to Equipment and Spare Parts, for the period set out in the Order Confirmation (Warranty Period), those Goods shall:
(a) conform in all material respects with their description in the Order Confirmation;
(b) be in compliance with all applicable laws;
(c) be free from material defects in design, material and workmanship and be in accordance with Good Industry Practice; and
(d) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
6.2 Subject to clause 6.3, the Supplier shall, at its option, repair or replace defective Equipment or Spare Parts or refund the price of the defective Equipment or Spare Parts in full if:
(a) the Customer gives notice in writing to the Supplier during the relevant Warranty Period within a reasonable time of discovery that some or all of the warranted Goods do not comply with the warranties set out in clause 6.1;
(b) the Supplier is given a reasonable opportunity of examining such warranted Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such warranted Goods to the Supplier’s place of business at the Customer’s cost.
6.3 The Supplier shall not be liable for the warranted Goods’ failure to comply with the warranties in clauses 6.1 if:
(a) the Customer makes any further use of such Goods after notice has been served in accordance with clause 6.2(a);
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, use or maintenance of the Goods or (if there are none) Good Industry Practice, or the locking device or safety system for the Goods has been interfered with or not installed in line with Good Industry Practice;
(c) the defect arises as a result of the Supplier following any Goods Specification or drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, misuse, neglect, or abnormal working conditions;
(f) the Customer does not comply with clause 6.2;
(g) the warranted Goods are incorporated by the Customer or any third party into another component, machine or piece of equipment; or
(h) in the case of the warranty in clause 6.1(a) only, the Goods differ from the Order Confirmation as a result of changes made in accordance with the Customer’s instructions or to ensure they comply with applicable statutory or regulatory standards.
6.4 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of any warranted Goods’ failure to comply with the warranty in clause 6.1 and the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract
6.5 The provisions of this clause 6 shall apply to any repaired or replacement Goods supplied by the Supplier but the Warranty Period in question shall expire upon the date the Warranty Period for the original Goods would have expired.
6.6 Each claim in relation to a breach of the warranties set out in clause 6.1 will be subject to the Supplier undertaking an in-house investigation. In the event of a rejection of any warranty claim, a copy of the written report of the results of the investigation will be made available to the Customer on request. If the Customer wishes to contest/appeal against the warranty decision it should do so in writing to the Supplier’s service manager. The service manager will review the warranty findings and give a decision upon whether he/she agrees or disagrees with the rejection of the warranty claim. Should the Customer wish to appeal the outcome of the in-house investigation, it may do so in accordance with clause 23 (Dispute Resolution).
6.7 Whilst the Supplier shall seek to obtain for the Customer from third party suppliers of any part or parts of the Goods the benefit of any warranty or guarantee for that part given by the third party supplier to the Supplier, the Supplier shall not be liable for any loss or damage arising directly or indirectly from the failure of such part.
6.8 The warranties in clause 6.1 only apply to Goods which are supplied new by the Supplier and not to Goods which are reconditioned, overhauled, repaired, hired, serviced, tested or inspected by the Supplier.
7. TESTING
7.1 Once Equipment has been ordered as set out in clause 2.1 and shipped to the UK from the Supplier’s holding company, the Supplier will inspect the Equipment to ensure it meets the Goods Specification (“Pre Delivery Inspection”).
7.2 The Customer can attend the Pre Delivery Inspection to ensure the Equipment is as described in the Goods Specification prior to arranging for the Equipment to be delivered to the Delivery Location.
8. TITLE AND RISK
8.1 The risk in any Goods sold or supplied by the Customer to the Supplier shall pass to the Customer upon completion of Delivery.
8.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for such Goods and all other sums on any account whatsoever owed by the Customer to the Supplier. Once sums have been received by the Supplier, the title in the delivered Goods shall pass to the Customer.
8.3 Risk and title in any Goods provided by the Customer to the Supplier to undertake any Equipment Services including but not limited to reconditioning, overhaul, repair, service, testing or inspection shall at all times remain vested in the Customer (subject to the lien set out in clause 9).
8.4 If the Supplier removes any part of the Goods delivered to it by the Customer in accordance with clause 8.3 in order to replace it, the Supplier shall be entitled, unless otherwise instructed by the Customer in writing, to dispose of such removed part and to retain for its own benefit the proceeds of any sale or other disposal of the same.
8.5 Until title to the Goods has passed to the Customer, the Customer shall:
(a) ensure the Goods remain readily identifiable as the Supplier’s property and if so requested by the Supplier, place on the Goods (and maintain) a plate in such form and of such size and prominence as the Supplier requires indicating that the Goods are the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured on the Supplier’s behalf for their full price against all risks with an insurer that is reasonably acceptable to the
Supplier from the time the Goods are delivered to the Installation Location. The Customer shall obtain an endorsement of the Supplier’s interest in the Goods on its insurance policy. On request the Customer shall allow the Supplier to inspect such Goods and the insurance policy; and
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 17.1(a) to clause Error! Reference source not found..
8.6 Subject to clause 8.7, the Customer may use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods.
8.7 If before title to the Goods passes to the Customer, the Supplier has the right to terminate the Contract as set out in clause 17, then, without limiting any other right or remedy the Supplier may have:
(a) the Customer’s right to use the Goods in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
9. LIEN AND RIGHT OF RE-SALE
9.1 The Supplier will have, in addition to any other right or remedy available to it, a lien and power of sale over any Goods delivered to it by the Customer for reconditioning, overhaul, repair, service, testing or inspection for all monies (whether presently payable or not) payable by, and all debts and liabilities (whether or not the period for payment or discharge of the same shall have actually arrived) of the Customer to the Supplier under any contract and such lien shall cover such Goods whether or not the Supplier shall at the time of exercise of the lien have begun or completed reconditioning, overhaul, repair, service, testing or inspection of such Goods.
9.2 Without prejudice to any other rights of the Supplier whether under the Contract or otherwise, if any sum due from the Customer has not been paid within three weeks after becoming due, the Supplier may, upon providing seven days' notice of its intention to do so, if such sums are not paid by the end of such notice period, dispose of (whether by auction or private treaty or in any other manner) any or all of the Goods in the Supplier’s possession on which the Supplier has a lien. The net proceeds of such sale of Goods shall be applied towards payment or satisfaction of the debts or liabilities owed by the Customer to the Supplier. Any surplus monies shall be paid to the Customer.
9.3 The Supplier shall be entitled to refuse to deliver up any Goods of the Customer it holds at any time unless the Price and all charges accrued due under the Contract and all other sums (if any) then owed by the Customer to the Supplier under any contract or on any account whatsoever have been paid.
10. SUPPLY OF SERVICES
10.1 The Supplier shall provide the Services to the Customer in accordance with the Service Agreement (or where there is no Services Agreement in place for Equipment Services, and in the case of Installation Services, in accordance with the relevant Order Confirmation) in all material respects.
10.2 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
10.3 The Supplier warrants, subject to the limitations set out in clause 15, to the Customer that the Services will be provided using reasonable care and skill.
11. TRAINING
11.1 Where agreed and as detailed in an Order Confirmation, the Supplier shall provide training to the Customer in relation to Equipment. The Customer acknowledges that it must exercise its own skill and judgement when using the information provided in relation to all Goods and acknowledges that the Supplier has no liability for any damage or loss howsoever caused (including damage and loss caused by (but not limited to) any errors, loss of data, inaccuracies or omissions in any information, advice, instructions, content or scripts provided to the Customer) by its use or reliance on the training.
11.2 The Customer is responsible for ensuring that it and its staff follow and comply with training and that it has suitably trained and competent operatives. The Customer is responsible for ongoing training of its staff beyond any agreed to be provided by the Supplier.
12. PRICE AND PAYMENT
12.1 The Price for Equipment Supplies, Installation Services and Supplemental Goods is set out in the Order Confirmation. The price for Equipment Services is set out in the Services Agreement.
12.2 The Customer shall pay the total Price to the Supplier (without deduction or set-off) as set out in the Order Form or Services Agreement.
12.3 The Supplier will invoice the Customer as set out in the Order Confirmation or Services Agreement (which may include a deposit, advance payments or staged payments) or:
(a) upon Delivery of Goods (and the Supplier reserves the right to submit interim invoices in relation to partial Deliveries); or
(b) upon the completion of or at set stages throughout the delivery of Services.
12.4 All Goods sold or Services provided must be paid for in cleared funds and in full 30 days from the date of the invoice. Each invoice shall quote the relevant order number.
12.5 The Supplier reserves the right to give notice to the Customer that it will increase the Price to cover any of the following circumstances:
(a) the cost of any additional special testing, or investigation, required by the Customer, or by any relevant regulatory body or manufacturer;
(b) the cost of any additional Goods and/or Services requested or agreed to be purchased by the Customer which were not detailed in the Order Confirmation or Quotation;
(c) any increase in labour costs and/or material prices outside the control of the Supplier;
(d) any additional costs where the Price or any element of it was indicated in the Order Confirmation or Services Agreement as being an estimate;
(e) any additional costs incurred by the Supplier where the supply of Goods and/or Services is suspended in accordance with the Customer's instructions;
(f) where the Customer requests a change in the Delivery Date, Goods or Services;
(g) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate instructions or information; and/or
(h) the costs of any special packing of the Goods required above the Supplier’s standard packing, carriage, insurance, airport, dock or handling fees and other charges stated to be separate to the Price.
12.6 Any Price quoted or detailed by the Supplier excludes VAT and any other taxes, duties and impositions, which the Supplier shall add to its invoices at the appropriate date, and any ancillary expenses reasonably incurred by the Supplier in connection with the Services, including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
12.7 The Price is exclusive of the costs of packaging, insurance and
carriage of the Goods which shall be invoiced to the Customer in addition to the Price quoted.
12.8 Where the Price quoted includes payments to third parties and the third party has not by the date the Supplier invoices the Customer provided an invoice to the Supplier, the Supplier reserves the right to raise an invoice to include an estimate of such third party payments. This third party payment is subject to adjustment. Should an adjustment be required, the Supplier may amend and re-issue the invoice or issue a further invoice or credit note at the discretion of the Supplier.
12.9 All Goods sold and/or Services provided must be paid for in cleared funds, in United Kingdom sterling and in full by the end of the calendar month following the date of the invoice, unless agreed otherwise in writing by a director of the Supplier. Each invoice shall quote the relevant Order number.
12.10 All amounts due under the Contract from the Customer to the Supplier shall be paid in immediately available cleared funds, and in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier reserves the right to set off any sums due from the Customer to the Supplier against any sums due from the Supplier to the Customer.
12.11 The Customer shall pay each invoice submitted to it by the Supplier, in full and cleared funds to a bank account nominated in writing by the Supplier, on the basis set out in the relevant Order Confirmation or Services Agreement.
12.12 Time for payment shall be of the essence of the Contract. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date:
(a) the Customer shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount;
(b) the Supplier may take steps to recover such unpaid sums; and
(c) the Supplier may suspend all Services until payment has been made in full.
12.13 All sums payable to the Supplier under these Terms shall become due immediately upon its termination, despite any other provision. This clause 12.13 is without prejudice to any right to claim for interest under law, or any such right under these Terms.
12.14 All amounts due under these Terms shall be paid without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
12.15 The Supplier reserves the right to apply monies received from the Customer to any outstanding invoices.
13. CONFIDENTIALITY
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its Goods and services which the receiving party may obtain, costs, charges and the Price, discounts, specifications, and processes. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 13 shall survive termination of the Contract.
14. DATA PROTECTION
Personal data is handled in accordance with the Supplier’s privacy policy which can be found at https://www.treif.de/en/general-information/privacy-policy/.
15. LIMITATION OF LIABILITY
15.1 References to liability in this clause 15 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
15.2 Without prejudice to clause 15.5, the Supplier's total liability to the Customer shall not exceed the Price received from the Customer under the relevant Contract.
15.3 Subject to clause 15.5, the Supplier’s liability to the Customer excludes any indirect losses or damages, loss of profit, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, or indirect, special or consequential loss.
15.4 Advice and information, in whatever form it may be given, is provided in good faith by the Supplier only, and without liability, and the Customer shall have no claim against the Supplier for any loss, damage, costs or expenses arising out of the Customer or any other party relying upon such advice or information.
15.5 Nothing in the Contract shall exclude or limit the liability of the either Party for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any matter for which liability cannot by law be excluded or limited.
15.6 This clause shall survive termination or expiry of the Contract.
16. CANCELLATION AND RETURNS
16.1 In the event of cancellation of an Order by the Customer before Delivery of the relevant Goods or provision of the relevant Services, the Supplier shall not refund the Customer any deposit or staged payments paid for Equipment or pro rata payments of the Price in relation to Services (“Non-refundable Sums”) and the Customer shall in accordance with clause 12 pay to the Supplier all costs reasonably incurred by the Supplier in relation to such Order to the extent that such costs exceed the Non-refundable Sums.
16.2 The Supplier may in its discretion accept the return of Supplemental Goods provided that the returned Supplemental Goods are not custom made, are unused and in a re-saleable condition and that the Customer pays for the carriage of such Supplemental Goods back to the Supplier. If the Supplier accepts a return, it will provide a refund to the Customer of the Price of such Supplemental Goods less a 10% re-stocking fee.
17. TERMINATION
17.1 Without limiting or affecting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any undisputed amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
(b) the Customer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within seven days after being notified in writing to do so;
(c) the Customer repeatedly or persistently breaches the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the Contract; or
(d) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors, being wound up (whether voluntarily or by order of the court), having a receiver appointed to any of its assets or ceasing to carry on business, having a monitor appointed with regards to a restructuring moratorium under Part A1 of the Insolvency Act 1986, having a restructuring plan implemented under section 901(c)(1) of the Companies Act 2006, provided that such right to terminate follows the exceptions permitting termination of the Contract as stipulated in section 233B(5)
and (6) schedule 4ZZA of the Insolvency Act 1986.
17.2 Without limiting its other rights or remedies, if any of the provisions of clause 17.1 apply the Supplier may:
(a) suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier;
(b) repossess and resell any Goods in accordance with the Contract; and/or
(c) declare (whereupon there shall forthwith become) that the Price of the Goods and or Services are immediately due and payable under any contract between the Parties.
18. OBLIGATIONS ON TERMINATION
18.1 On termination of the Contract for any reason the Customer shall:
(a) immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services or Goods supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) return all of the Supplier Materials and any Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s or any third party’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; and
(c) on request, certify in writing to the Supplier that it has complied with the requirements of this clause 18.
19. CONSEQUENCES OF TERMINATION
19.1 On termination of the Contract clauses 8, 9, 12, 13, 15, 18, 19, 20, 22, 23, 24.8 and 24.9 shall survive and continue in full force and effect.
19.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
20. INTELLECTUAL PROPERTY RIGHTS
20.1 All Intellectual Property Rights in the Goods and in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
20.2 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, worldwide, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
20.3 The Customer shall indemnify the Supplier against all liabilities, losses, damages, penalties, costs and expenses (including but not limited to any direct, indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any work done in accordance with the Customer's specification (on which the Order Confirmation was provided) which involves any infringement of any party’s Intellectual Property Rights.
21. FORCE MAJEURE
21.1 Force Majeure Event means any circumstance beyond the Supplier’s reasonable control including but not limited to:
(a) act of God, explosion, flood, tempest, earthquake or fire;
(b) epidemic or pandemic;
(c) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(d) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(e) import or export regulations or embargoes;
(f) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Supplier or of a relevant third party);
(g) difficulties in obtaining raw materials, labour, fuel, parts or machinery;
(h) power failure or breakdown in machinery; or
(i) interruption of failure of utility service.
21.2 Provided that the Supplier has complied with clause 21.3, if the Supplier is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event, the Supplier shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
21.3 The Supplier shall as soon as reasonably practicable after the start of the Force Majeure Event:
(a) notify the Customer in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
21.4 If the Force Majeure Event prevents, hinders or delays the Supplier’s performance of its obligations for a continuous period of more than 12 weeks in the case of Equipment Supplies and Installation Services or three weeks in the case of Supplemental Goods or Equipment Services, the Customer may terminate the Contract by giving one month’s written notice to the Supplier.
22. NOTICES
22.1 A notice given to a party under or in connection with the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post or recorded delivery or by commercial courier or by email, to each party required to receive the notice or communication to the relevant party’s registered office (or if the Customer is not a company or LLP to its trading address) and if by email to the email address provided for such use by a party as may be changed by notice in writing to the other party.
22.2 Delivery of a notice is deemed to have taken place (provided that all other requirements in this clause have been satisfied):
22.3 if delivered personally, at the time the notice is left at the address;
22.4 if delivered by commercial courier, on the date and time that the courier’s delivery receipt is signed;
22.5 if sent by pre-paid first class post or recorded delivery, at 9.00am on the second Business Day after posting; or
22.6 if sent by email, upon transmission of the email unless such transmission is outside of normal business hours (being 9.00am to 5.00pm on a Business Day) in which case delivery shall be deemed to have taken place at 9.00am on the next Business Day).
22.7 Any party may notify to the other parties an alternative postal or email address in accordance with this Contract.
22.8 This clause 22 does not apply to the service of any proceedings or other documents in any legal action.
23. DISPUTE RESOLUTION
23.1 If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (“Dispute”), then, except as expressly provided in the Contract, the parties shall follow the procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, a senior officer of each party shall attempt in good faith to resolve it; and
(b) if the senior officers are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties agree to enter into mediation in good faith to settle the Dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 45 days of service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a
party must serve notice in writing (“ADR Notice”) to the other party to the Dispute, referring the dispute to mediation. Unless otherwise agreed between the parties, the mediation will start not later than 30 days after the date of the ADR notice.
23.2 If the Dispute is not resolved within 90 days after service of the ADR notice, or either party fails to participate or ceases to participate in the mediation before the expiry of that 90 day period, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 24.9.
24. GENERAL
24.1 Entire Agreement
(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) The Customer acknowledges that in entering into these Terms it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract and that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
(c) Nothing in this clause 24 shall limit or exclude any liability for fraud.
24.2 Severance: If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision shall not affect the validity and enforceability of the rest of the Contract.
24.3 Third party rights: The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the Terms. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
24.4 Variation: Except as set out in the Contract, no variation of these Terms or any Order Confirmation or Quotation shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
24.5 Waiver: A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
24.6 Customer Authority: The Customer warrants to the Supplier that it has the power and authority to enter into this Contract.
24.7 Supplier Authority: No employee or agent of the Supplier has any authority to give or make any representation or warranty relating to Goods or Services provided or to be provided by the Supplier unless such representation or warranty is in writing and signed on behalf of the Supplier by a Director or a Manager of the Supplier.
24.8 Governing law: Subject to clause 23 above, this agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
24.9 Jurisdiction: each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

US

TREIF’S GENERAL TERMS AND CONDITIONS FOR DELIVERY AND SUPPLY




These General Terms and Conditions of Sale and Delivery (these “Terms”) are applicable to all U.S. customers (the “Customers” and each, individually, a “Customer”) of Treif USA Inc., a Delaware corporation (the “Company”).

1. Terms and Conditions of Sale:
1.1. Company shall sell and deliver to Customer and Customer shall purchase and accept from Company the products (herein, the “Products”) described on or in any confirmed order, agreement or quotation, or any combination thereof (the “Order”), pursuant to the terms and conditions of the Order and those specified below, which taken together shall constitute the entire agreement between Company and Customer regarding the Products (herein, this “Agreement”).
1.2. No other terms or conditions shall be of any effect unless otherwise specifically agreed to by Company in a separate written agreement duly signed by an officer of the Company. Customer will be deemed to have assented to all Terms if any part of the Products is accepted by the Customer. If Customer finds any Term not acceptable, Customer must so notify the Company at once and must reject the Products delivered under this Agreement. Any additional or different terms or conditions contained in Customer's order or response hereto shall be deemed objected to by Company and shall be of no effect. No general terms and conditions of a Customer shall at any time form a part of the content of any contract or agreement between the Customer and the Company, even if they are not further expressly rejected by the Company.
1.3. Unless otherwise agreed in writing, all quotations for Products are valid for a period of three (3) months from the date of issue. Subsequent modifications in quantity or quality, if such are requested by Customer, generally will cause a modification of the quoted price. Drawings and samples enclosed with any quotation remain the property of Company. All drawings and samples shall be treated confidentially by Customer and must be returned to Company after usage.
1.4. No Order is binding upon the Company until the earlier of acceptance of the Order in writing or the delivery of the Products to the Customer. Notwithstanding any prior acceptance of an Order by Company, Company shall have no obligation if the Customer is in breach of any of its obligations hereunder, or any other agreement between the Customer and Company, at the time Company’s performance was due.
1.5. All verbal agreements concerning the terms of any Order, including agreements made by telephone, shall have no force and effect unless and until acknowledged by the Company in writing.
1.6. Customer shall bear all costs associated with the cancellation or modification of the Order.

2. Prices:
2.1. All price quotations are FOB Shelton (per Incoterms 2000) from Company’s principal place of business, and do not include costs for packaging, postage or other freight charges, insurance or taxes, if any.
2.2. The price of the Products shall be the Company's current prices in effect from time to time. A price list is available on request.
2.3. Company may, without notice to Customer, increase the price of the Products by the amount of any new or increased tax or duty (excluding franchise, net income and excess profits taxes) which Company may be required to pay on the manufacture, sale, transportation, delivery, export, import or use of the Products or the materials required for their manufacture or which affects the cost of such materials.

3. Terms of Payment:
3.1. Unless otherwise agreed to in writing by the Company,
70 % of the contract amount down with the order, 20 % of the amount when machine or a substantial part is ready to be delivered, and remaining balance (10 %) 30 days after successful installation, however not later than 30 days after delivery. Customer shall make payments by check or wire transfer to the account indicated on the invoice without a cash discount or offset and the Company shall not be required to incur any expense to receive timely payment in full as required by this Agreement.
3.2. Company may, without notice, change or withdraw extensions of credit at any time. If Company ceases to extend credit terms before shipment, Customer's sole remedy shall be cancellation of its order. If Customer does not receive notice before shipment, its sole remedy shall be rejection of the Products immediately upon delivery.
3.3. If the Customer fails to make payment on or before the date required, Customer shall pay interest to the Company at the rate of one and one-half percent (1.5%) per month or such lesser amount permitted by law. The specification or charging of interest shall not be deemed an agreement to extend credit.
3.4. If Customer fails to observe these Terms or the terms of any other agreements between Company and Customer, or if Customer becomes insolvent, all balances then due and owing to the Company shall become due immediately, notwithstanding any agreed upon payment periods. Any Orders that have been confirmed by the Company, but not yet filled, shall in such cases become cancelable at the sole discretion of Company.
3.5. Customer does not enjoy a right of set-off under any circumstances.

4. Delivery Terms:
4.1. Title to and risk of loss for the Products shall pass to Customer upon delivery thereof to any common carrier at Company’s site.
4.2. Customer will be billed for and shall pay all freight, transportation, shipping, insurance and handling charges, duties, and taxes, including any applicable VAT, sales, personal property, ad valorem, and other taxes, duties, levies or charges imposed by any governmental authority, irrespective of whether applicable law makes such items the responsibility of the buyer or seller, but excluding any taxes payable by Company with respect to its net income.
4.3. Customer, shall, subject to Company's available facilities at the shipping point, determine the type of transportation and shall notify Company thereof at the time Customer places each Order. If Customer shall fail to so notify Company, Company or its agent may select any commercial air, ship, motor or rail carrier or any combination thereof for the transportation of the Products. Company will make deliveries of the Products in the quantities ordered as near as reasonably possible to Customer's requested delivery dates.
4.4. Company shall use its reasonable efforts to deliver the Products to Customer by the agreed upon date. However, except in cases of Company’s willful misconduct or gross negligence, Company shall not be liable to Customer for delays in delivery or damage to the Products while in transit, irrespective of whether Company or Customer determined the mode of transportation.
4.5. In cases of deliveries of Products manufactured to Customer’s specification (“Special Orders”) and unless otherwise agreed to in writing, all tools, models, plans, blueprints or other devices and/or documents used and/or developed by Company (the “Tools”) in order to fulfill any Order or Special Order are the property of the Company, even if the cost of development and/or manufacturing of such tools, models, plans, blueprints or other devices and/or documents was wholly or partially borne by the Customer.

5. Security Interest:
5.1. As security for the timely payment and performance of all Customer’s indebtedness to Company, Customer hereby grants to the Company a first priority security interest in the Products following delivery thereof to Customer (“Collateral”). Such Interest shall remain in force until payment in full of the entire purchase price for the Products and any other amounts due to the Company by Customer.
5.2. If so requested by Company, Customer shall deliver to Company, in form and substance satisfactory to Company, and duly executed as required by Company, financing statements and other security interest perfection documentation in form and substance satisfactory to Company, duly filed under the UCC in all jurisdictions as may be necessary, or in Company’s opinion, desirable, to perfect Company’s security interest and lien in the Collateral, in order to establish, perfect, preserve and protect Company’s security interest as a legal, valid and enforceable security interest and lien, and all property or documents of title, in cases in which possession is required for the perfection of Company’s security interest.

6. Limitation of Liability:
6.1. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL OR USE, INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR IMPOSED BY STATUTE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2. NOTWITHSTANDING THE TERMS AND CONDITIONS SET FORTH IN SECTION 6.1., COMPANY’S LIABILITY – WHETHER BASED UPON CONTRACT, TORT, EQUITY, NEGLIGENCE OR ANY OTHER LEGAL CONCEPT – SHALL IN NO EVENT EXCEED THE VALUE OF CUSTOMER’S ORDER, AS DESCRIBED ON THE ORDER FORM, OR THE ORDER VALUE FOR (1) CALENDER YEAR, WHICHEVER AMOUNT IS LOWER. IT IS AGREED AND ACKNOWLEDGED THAT THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN COMPANY AND CUSTOMER, THAT COMPANY’S PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
6.3. IN JURISDICTIONS THAT LIMIT THE SCOPE OF OR PRECLUDE LIMITATIONS OR EXCLUSION OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED, THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE, COUNTRY OR OTHER JURISDICTION.

7. Force Majeure:
7.1. Company shall not be liable to Customer or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments.
7.2. Customer shall not be liable to Company or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments.
7.3. When the event operating to excuse performance by either party shall cease, this Agreement shall continue in full force until all deliveries have been completed.

8. Miscellaneous Terms:
8.1. This Agreement and all claims arising out of or related to this Agreement, including tort claims, shall be governed by and construed in accordance with the laws of the state of New York, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than New York. The application of the Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.
8.2. Any controversy or claim arising out of or relating to this Agreement, or the negotiation or breach thereof, shall be exclusively settled by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The award shall be final and binding. Judgment upon the award rendered by the arbitrator or the arbitrators may be entered in any court having jurisdiction thereof. The arbitration shall be held in New York, New York, shall be conducted in the English language, and shall be conducted (i) if the amount in dispute is less than two hundred fifty thousand dollars ($250,000), before a single arbitrator mutually agreeable to Company and Customer, or if no agreement can be reached, then selected by the AAA, or (ii) if the amount in dispute is two hundred fifty thousand dollars ($250,000) or more, before three (3) arbitrators. The arbitrator(s) shall make detailed findings of fact and law in writing in support of his, her or their decision, and shall award reimbursement of attorney’s fees and other costs of arbitration to the prevailing party, in such manner as the arbitrator shall deem appropriate. In addition, the losing party shall reimburse the prevailing party for reasonable attorneys’ fees and disbursements, the costs of the arbitration (including but not limited to the fees and expenses of the arbitrator and expert witnesses) and the costs incurred by the prevailing party in successfully seeking any preliminary equitable relief or judicially enforcing any arbitration award.
8.3. If any provision contained in this Agreement is held by final judgment of a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.
8.4. In the event of a violation or threatened violation of Company’s proprietary rights, Company shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that Company would suffer irreparable harm.
8.5. The parties hereto are independent contractors and nothing in this Agreement will be construed as creating a joint venture, employment or agency relationship between the parties.
8.6. This Agreement shall apply to all sales of the Products to Customer.
8.7. This Agreement, including any Schedules attached hereto, contains the entire agreement of the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements between them, whether oral or written, of any nature whatsoever with respect to the subject matter hereof. This Agreement is binding upon the parties hereto, their successors and permitted assigns.