GENERAL CONDITIONS OF DELIVERY OF HOSHIZAKI EUROPE B.V. 1 Definitions 1.1. In these general conditions, the terms below are defined as follows: Agreement: The agreement concerning the sale of Products by Hoshizaki and the purchase of Products by the Buyer. Buyer: The person who purchases the Products under the Agreement. General Conditions of Delivery: The present general conditions of delivery of Hoshizaki Nederland Europe B.V. Hoshizaki: Hoshizaki Europe B.V., a company incorporated in the Netherlands with its registered offices in at Burgemeester Stramanweg 101, NL – 1101 AA Amsterdam, the Netherlands and its principal place of business in (1101 GC) Amsterdam, the Netherlands at Burgemeester Stramanweg 101, and with a registered UK establishment (number BR002790) known as Hoshizaki UK whose address is 2 The Technology Centre London Road, Swanley, BR8 7AG. INCOTERMS: The Incoterms 2010 rules. Intellectual Property Rights: Patents, rights to inventions; copyright and neighbouring and related rights, all other rights in the nature of copyright; trade marks; domain names; rights in get-up; goodwill and the right to sue for passing-off; rights in designs; database rights; and all other intellectual property rights, in each case whether registered or unregistered. 2 Applicability 2.1. These General Conditions of Delivery apply to and are incorporated into all quotations and offers made by Hoshizaki, and each acceptance, confirmation and validation by Hoshizaki of the orders placed by the Buyer and all “Agreements” unless and in so far as otherwise is expressly agreed in writing signed by Hoshizaki. 2.2. Any conditions and provisions that are stated in any documents that the Buyer issues before or after Hoshizaki issues any document in which the present General Conditions of Delivery are set out or are referred to are expressly rejected by Hoshizaki and set aside. The conditions concerned do not apply to any sale made to the Buyer by Hoshizaki and are in no way whatever binding on Hoshizaki. 3 Offers/Agreements 3.1. All quotations issued by Hoshizaki are non-binding invitations to the Buyer to place an order. Any order placed by a Buyer is an offer to purchase the relevant Products on these General Conditions of Delivery. An Agreement is concluded if Hoshizaki accepts the order in writing or Hoshizaki commences fulfilment of the order. 3.2. Changes made to an Agreement are binding on Hoshizaki only in so far as Hoshizaki accepts these changes in writing or in so far as Hoshizaki has actually begun implementing the changed Agreement. 3.3. Hoshizaki is entitled to refuse orders or to set certain conditions for the delivery of Products unless otherwise is expressly determined. 4 Prices/Payments 4.1. Unless otherwise stated, the prices of Hoshizaki are given in euros. If prices are given in another currency, then Hoshizaki may increase the price charged to reflect any change in the euro exchange rate between the date that the Agreement is made and the date that Hoshizaki submits its invoice. 4.2. All prices exclude VAT, duties and any other comparable levies that are imposed in connection with the sale of Products (unless otherwise is expressly stated) and the Buyer shall pay such sums in addition to the price. 4.3. All prices that are stated on price lists, in catalogues, quotations or other statements or listings of Hoshizaki are based on delivery in accordance with the INCOTERMS applicable under clause 5 may invoice the Buyer. 4.4. Unless agreed otherwise in writing between Hoshizaki and the Buyer, Hoshizaki may invoice the Buyer for any additional cost payable by the Buyer under the applicable INCOTERMS. 4.5. The Buyer shall pay Hoshizaki’s invoices within thirty (30) days after the invoice date, unless otherwise agreed in writing between Hoshizaki and the Buyer. 4.6. All payments shall be made into the account nominated by Hoshizaki from time to time. 4.7. If deliveries are made in instalments, each instalment may be invoiced separately. No discount shall be given for early payment, unless Hoshizaki consents to such a discount in writing. 4.8. In addition to all other legal rights and remedies that Hoshizaki might have, interest shall be charged, as permitted by law, on all overdue payments at a rate of eighteen per cent (18%) annually or – if it is higher – at the statutory interest rate from the date payment falls due to the date on which payment is made in full. 4.9. In addition to the amount due, increased by the interest charged in accordance with Clause 4.8, the Buyer shall reimburse Hoshizaki for all costs and expenses that Hoshizaki incurs or suffers as a consequence of the non-payment or late payment on the part of the Buyer, including all costs of any debt recovery or enforcement action that Hoshizaki may take against the Buyer. 4.10. If Hoshizaki reasonably considers, including (without limitation) as a result of a change in the Buyer’s credit rating with any reputable credit reference agency, that the financial situation of the Buyer is at any time such that it would not be sensible to start or continue production or delivery of Products on the basis of the aforementioned payment conditions, then Hoshizaki may require full or partial payment in advance or require other payment conditions as a condition for production or delivery of the Products. 4.11. If the Buyer fails to pay on the date they fall due any sums owed to Hoshizaki under the Agreement or oth- erwise, or if the Buyer is otherwise in default of its obligations under the Agreement: 4.11.1. Hoshizaki may suspend delivery of Prod- ucts until the Buyer has paid the amounts due in full and has remedies any other default; and 4.11.2. Hoshizaki may require payment in advance for any future deliveries. 4.12. The rights in Clause 4.11 are in addition to and not instead of any other rights and legal remedies which apply or which are available by virtue of the Agreement or the law. 5 Deliveries 5.1. Delivery of Products shall take place Ex-Works (EXW), (INCOTERMS), unless: 5.1.1. the Buyer is established in one of the following countries, in which case the delivery of Products shall take place Carriage and Insurance Paid To (CIP) (INCOTERMS): the Netherlands, Belgium, Luxembourg, Great Britain, Ireland, France, Germany, Austria, Switzerland, Spain or Portugal; or 5.1.2. the parties agree otherwise in writing. 5.2. Hoshizaki is entitled to deliver Products in stages (partial deliveries). 5.3. The dates of delivery given or confirmed by Hoshizaki are only approximate dates. Hoshizaki shall use reasonable endeavours to may make delivery on those dates or within a reasonable period before or after those dates, provided that the Buyer provides all necessary order and delivery data within a reasonable period before the delivery date concerned. 5.4. The Buyer shall inform Hoshizaki in writing if the delivery has not taken place and shall give Hoshizaki a period of thirty (30) days to make delivery. If Hoshizaki does not deliver those Products within this period of thirty (30) days, then the Buyer may, as the only and exclusive legal remedy, cancel its order to the extent only that it relates to those Products. 5.5. Title in the Products is transferred to the Buyer in accordance with the provisions in Clause 7.1. The risk in the Products is transferred to the Buyer in accordance with the applicable INCOTERMS. 5.6. If the Buyer does not take delivery of the Products in accordance with the applicable INCOTERMS, then Hoshizaki may store the Products and if Hoshizaki does so, the Buyer shall pay to Hoshizaki as a debt on demand Hoshizaki’s costs in doing so. 6 Returns 6.1. The Buyer may refuse to accept the Products when the Products arrive at the named place of destination if the Products are delivered CIP INCOTERMS, or when Hoshizaki delivers them at the named place of delivery if the Products are delivered EXW INCOTERMS, provided that: 6.1.1. the Buyer shall inform Hoshizaki of the refusal immediately; 6.1.2. the Buyer shall pay Hoshizaki a failed deliv- ery fee, at Hoshizaki’s then current rate for such charges. 6.2. The right of refusal in Clause 6.1 does not apply to any Products that have been designed or manufactured specially to the Buyer’s own requirements. 6.3. This clause 6 shall not affect the Buyer’s remedies for a breach by Hoshizaki of the warranty at clause 9 or any other provision of the Agreement. 7 Retention of Title 7.1. Title in the Products remains vested in Hoshizaki until the moment that all sums payable by the Buyer to Hoshizaki under the relevant Agreement are received by Hoshizaki in cash or cleared funds. 7.2. Until title in the Products passes to the Buyer, the Buyer shall: 7.2.1. store the Products separately from all other Products held by the Buyer so that they remain readily identifiable as Hoshizaki’s property; 7.2.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Products; 7.2.3. maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; 7.2.4. notify Hoshizaki immediately if the Buyer becomes subject to any of the events listed in Clauses to 15.1.4; and 7.2.5. give Hoshizaki such information relating to the Products as Hoshizaki may require from time to time. 7.3. Subject to Clause 7.4, the Buyer may resell or use the Products in the ordinary course of its business (but not
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