1. Orders, Acceptances and Contracts
(i) All orders, acceptances and contracts are supplied to these Conditions and nothing (whether expressed or implied by statute, regulation, common law, trade practice or otherwise) is to vary or override them unless either agreed to in writing and signed on behalf of Simmatic or where exclusion of liability is rendered impossible by virtue of the Unfair Contract Terms Act 1977.
(ii) In particular no term or condition in any order given by any Customer which is inconsistent with these conditions will apply.
(iii) All brochures, catalogues, manuals and other like material are issued by way of general description only and nothing contained therein nor any representation of whatever kind shall be binding upon Simmatic unless expressly incorporated in the contract. Specifications of weight and dimensions are approximate only unless expressed to be an essential term of the contract.
(iv) Specifications as to performance shall be subject to usual tolerances and rejection limits.
(v) No contract shall be formed until Simmatic shall have accepted an order. The placing of an order by the Customer shall not constitute a contract even though Simmatic shall previously have issued a quotation.
(vi) Where goods are manufactured by Simmatic to the design or specification of the Customer, the Customer shall accept a quantity which may vary within a tolerance of 5% from the quantity actually ordered and in any event of any such variation Simmatic may adjust the price accordingly.
(i) Orders may be either by direct order at the prices stated in Simmatic’s current price list or, where Simmatic has given a written quotation, on the basis of such quotation.
(ii) Prices stated in Simmatic’s current price list are exclusive of the cost of packing, carriage, insurance and VAT. Small orders are subject to Simmatic’s current minimum charge.
(iii) All prices and quotations are tendered without commitment and are subject to withdrawal or variation at any time prior to an Order being accepted by Simmatic.
(iv) Simmatic reserves the right in the case of imported goods to adjust prices in line with movements in foreign exchange rates in the event of a fluctuation of more than 5% in the relevant exchange rate between the date of the contract and the date of delivery.
(v) All quotations are made on the understanding that the whole of the quantity quoted for will be ordered; otherwise Simmatic reserves the right to revise the quotation.
3. Guarantee and limitation of liability
(i) Every effort is made to ensure sound materials and good workmanship but Simmatic gives no warranty expressed or implied of materials, workmanship or fitness of goods for any particular purpose whether such purpose be known to Simmatic or not.
(ii) Where materials or workmanship are proved defective to the satisfaction of Simmatic and the goods were manufactured by Simmatic the goods will be repaired or replaced free of charge provided that Simmatic shall have been notified in writing of the defects within the following time limits:
(a) Where the goods are used in single-shift operations, within twelve calendar months of the date of delivery:
(b) Where the goods are used in multi-shift operations, within six calendar months of delivery:
and in the event of any such repair or replacement being carried out the said periods of
guarantee shall not be extended beyond the guarantee period of the original equipment.
(iii) The provisions of this clause shall where applicable apply to any software programme supplied with goods notwithstanding that such software shall not form part of the sale.
(iv) Simmatic shall assume no liability for losses or
damages incurred as a result of:
(a) Inappropriate or improper use or storage by the Customer prior to commencement of operations:
(b) Incorrect assembly or repairs by the Customer or third parties.
(c) Natural wear and tear, incorrect or careless treatment, or unsuitable operation techniques:
(d) Construction work by unqualified staff:
(e) Factors beyond Simmatic’s control.
(f) Any defect in any goods or components which were not manufactured by Simmatic.
(g) Any technical advice given by Simmatic other than in writing:
(h) Radio interference:
Penetration of dust or moisture to the goods.
(i) Any modifications made to the goods by the Customer.
(v) Simmatic shall not be liable for defects when the Customer fails to provide Simmatic with sufficient time and the opportunity to carry out repairs and/or to delivery alternative goods. In urgent or exceptional cases, Simmatic may authorise the Customer to repair the goods himself or have them repaired by a third party and to claim reimbursement of the expenses involved therein. Such authorisation will only be effective if given in writing.
(vi) Simmatic will not be liable for loss of profit or other consequential damage howsoever caused.
(vii) Where goods are manufactured by Simmatic to the design or specification of the Customer Simmatic shall give no guarantee or warranty that such goods shall be suitable for any given purpose.
4. Delivery and carriage charges
(i) Simmatic does not give any warranty as to rate or time of delivery and no mention of a rate or time of delivery in any order, quotation or acceptance is binding on Simmatic.
(ii) Simmatic will not accept responsibility for loss from package, damage, wrong delivery, discrepancies or short shipments unless a written complaint is made to Simmatic within seven days after the delivery of the consignment and unless Simmatic is given an opportunity of inspection.
(iii) Simmatic will not accept responsibility for loss of a whole consignment or any separate package forming part of a consignment unless a complaint is made to Simmatic within 14 days after the date of the invoice relating to such consignment.
(iv) If within 14 days of being given notice by Simmatic that the goods are ready for despatch the Customer fails to take or give instructions for delivery Simmatic may place the goods in storage and the Customer shall be liable to pay Simmatic’s reasonable storage charges.
(v) Unless delivery in one consignment is specifically requested, goods will be despatched as they become available and each part delivery will be treated as a separate contract and invoiced separately.
5. Title and Risk
(i) All goods shall be at the risk of the Customer from the time of delivery.
(ii) Subject to the following provisions of this clause, all goods shall remain the property of Simmatic until all debts owed by the Customer to Simmatic, including any balances existing at relevant times and whether or not any credit period has expired, are settled and the Customer holds all such goods as fiduciary bailee of Simmatic and shall store them in such manner as clearly to show that they are the property of Simmatic.
(iii) If any such payment is overdue in whole or in part Simmatic may recover and/or resell any of its goods and may by its servants or agents enter upon the Customer’s premises for such purpose. Subject to clause 6(I) below, payment is deemed to become overdue immediately upon the commencement of any act or proceeding in which the insolvency of the Customer is involved.
(iv) Subject to (iii) above, the customer may in the ordinary course of its business sell such bailed goods and any such sale shall be as such fiduciary agent of Simmatic and the Customer shall hold the proceeds of any such sale on behalf of Simmatic and shall keep such proceeds in a separate account.
(i) Payment of the price shall be made within 30 days net from the date of invoice, time being of the essence. If delivery of the goods or materials shall be prevented or delayed by the Customer payment shall be made by the due date as if there had been no such prevention or delay.
(ii) Simmatic reserves the right to charge interest on any invoice remaining unpaid for more than 30 days from the invoice date at the rate of 2% per month to be calculated on a daily basis from the invoice date to the date of receipt of payment.
(iii) If the Customer defaults in making payment on the due date of any sum due to Simmatic on any account Simmatic may suspend deliveries (in which event the Customer will be liable for any damage, loss or expense which Simmatic may thereby suffer) and if such default continues for seven days after written notice of Simmatic’s intention to invoke the provisions of this condition Simmatic may determine the contract.
(iv) If the Customer commits an act of bankruptcy or being a company goes into liquidation (otherwise than a voluntary liquidation for the purposes of reconstruction or amalgamation) or has a Receiver appointed Simmatic may (without prejudice to the terms of clauses hereof) suspend deliveries and/or determine the contract.
(v) In the event of the determination of the contract for any reason the Customer will be liable to pay forthwith for all work done and material supplied and may also be liable in damages as for a wrongful repudiation.
(vi) If goods are returned through no fault of Simmatic, Simmatic reserves the right to make a handling charge.
7. Copyright, Patents etc.
(i) Simmatic retains all copyrights, patents and the right of legal protection of registered designs in its drawings, diagrams, software, documents and equipment. Drawings, specifications, documents, etc. appended to quotations or forwarded to customers are for their personal use only. They may be neither copied in whole or part nor made accessible to third parties without Simmatic’s express written consent.
(ii) Any software programme supplied by Simmatic shall not form part of the sale but the Customer shall be licensed to use such software (together with any up dates and modifications which Simmatic may at its discretion provide) as specified by Simmatic and if such software shall have been supplied together with goods then it may be used only in connection with such goods.
8. Health and Safety at work
The Customer will ensure that the goods are properly and safely installed in accordance with any instructions that shall have been supplied by
Simmatic and with good trade practice and that they will be safe and without risk to health or safety when used.
9. Installation and Commissioning
(i) These Conditions of Sale shall apply where appropriate to the installation and commissioning of any equipment by Simmatic.
(ii) The cost of installation and commissioning shall in each case be charged for in addition to the cost of any goods supplied. Unless otherwise agreed in writing by Simmatic such work shall be charged at the hourly rate applicable to the personnel engaged. The Customer shall reimburse Simmatic at cost for all materials and expenses. Such charges may be levied in all cases where through no fault of Simmatic it shall prove impossible to carry out the work on time or in accordance with the agreed standards or specifications or the work required exceeds that anticipated by the parties.
(iii) The hours engaged in such installation and commissioning work shall be recorded by the Simmatic personnel and verified by the Customer at intervals of not more than one week. If the Customer shall fail to verify the records then Simmatic shall submit an invoice on the basis of the records as drawn.
(iv) The Customer shall ensure that adequate accommodation and facilities are available for such installation and commissioning work and that all equipment is ready and available and in a fit state and condition. If the Customer shall fail to comply with those requirements it shall compensate Simmatic for all time wasted by Simmatic’s personnel.
(i) Simmatic will not be responsible for any failure to fulfil any term of this contract if fulfilment is delayed, hindered or prevented by any circumstances whatsoever which are not within its control including but not by way of limitation strikes, lockouts, fire, explosion, any curtailment, failure or cessation of public utilities or services, or of supply of the products from any of Simmatic’s existing suppliers or of any national or local port, transportation or other authority or any body or person purporting to be or act for such authority. The Customer after notifying Simmatic in writing shall be free to purchase from other suppliers any deficiency caused by the operation of this Condition.
(ii) All contracts entered into by Simmatic shall be governed by English law.