INTERPRETATION

“Buyer”                   means the person or company who accepts a quotation of Dodman for the sale of their Goods or whose order for the Goods is accepted by Dodman.

“Conditions”          means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Buyer and Dodman and where relevant set out in the Special Conditions (as defined below).

“Confidential Information” means all information of a confidential or proprietary nature (including but not limited to information imparted orally) relating to the Goods and processes revealed to or learned by the Buyer at any time from Dodman for the Purpose.

“Contract”              means the contract for the purchase and sale of the Goods.

“Dodman”              means Dodman Limited of Hamburg Way, North Lynn Industrial Estate, King’s Lynn, Norfolk, PE30 2ND.

“Goods”                  means the food processing machinery or other goods (including any instalments of the goods or any parts of them) which Dodman is to supply in accordance with the Conditions and, where the context so permits, includes any services which Dodman is to provide in accordance with the Conditions.

“Intellectual Property”         all intellectual and industrial property rights including patents, know-how, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade marks, rights to prevent passing off for unfair competition and copyright, database rights, topography rights and any other rights in any invention, discovery or process, in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions.

“Purpose”               means use of the Goods in the Buyer’s ordinary course of business and the use of any instructions provided by Dodman relating to use of the Goods.

“Special Conditions”            any conditions set out in the Schedule to these Conditions.

“Specification”       includes drawings, plans, samples, notes, models, calculations and description.

“Writing”                includes facsimile and comparable communication (but not e-mail).

2.0 SALE

2.1 Dodman shall sell and the Buyer shall purchase the Goods in accordance with the Contract, which is formed when:-

(a)     any written quotation of Dodman which is accepted by the Buyer, or

(b)     any written order of the Buyer is accepted by Dodman, and no order placed shall be deemed to be accepted by Dodman until written acknowledgement of order is issued by the company or (if earlier) Dodman delivers the goods to the buyer.

These conditions (as varied in accordance with Condition 2.2) shall govern the Contract to the exclusion of any other terms and conditions and all previous oral or written representations and including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order or similar document, whether or not such document is referred to in the Contract.

2.2 No variation to these Conditions shall be binding unless agreed in Writing between the Buyer and a director of Dodman.

2.3 Dodman’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by a director of Dodman in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.

2.4 Any advice or recommendation given by Dodman or its employees or agents to the Buyer or its employees or agents as to the storage, application, or use of the Goods which is not confirmed in Writing by a director of Dodman is followed or acted upon entirely at the Buyer’s own risk and accordingly Dodman shall not be liable for any such advice or recommendation which is not so confirmed.

2.5 All samples, drawings, descriptive matter, specifications and advertising issued by Dodman (or the manufacturer of the Goods) and any descriptions or illustrations contained in Dodman’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods represented by or described in them. They will not form part of the Contract and this is not a sale by sample.

2.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, day work rates list, acceptance of offer, invoice or other document on or information issued by Dodman shall be subject to correction without any liability on the part of Dodman.

3.0 ORDER AND SPECIFICATION

3.1 No order submitted by the Buyer shall be deemed to be accepted by Dodman unless and until confirmed in Writing by Dodman’s authorised representative.

3.2 To enable Dodman to perform the Contract the Buyer shall (where appropriate) be responsible to Dodman for:-

(a)     ensuring the accuracy of the terms of any order (including any Specification);

(b)     giving Dodman any necessary information relating to the Goods in reasonable time;

(c)     providing upon request any technical details and information necessary to enable the Goods to be properly designed, manufactured and installed;

(d)     ensuring where appropriate that Dodman, its employees and agents shall be afforded a safe working environment and shall be supplied free of charge with power (such as electricity), water, toilets, parking and similar;

(e)     ensuring that no delay is caused to Dodman and the Buyer shall be liable (on a full indemnity basis) to Dodman for any loss or damage suffered by Dodman as a result of a breach of this Condition 3.2.

3.3 The quantity, quality and description of, and any Specification for the Goods, shall be those set out in Dodman’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by Dodman).

3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by Dodman in accordance with the Specification submitted by the Buyer, the Buyer shall indemnify Dodman against all loss, damages, costs and expenses, awarded against or incurred by Dodman in connection with or paid or agreed to be paid by Dodman in settlement of any claim for infringement of any Intellectual Property Rights of any other person which results from Dodman’s use of the Buyer’s Specification.

3.5 Dodman reserves the right to make any changes to the Specification of the Goods which are required to conform with any applicable safety or other statutory requirements, or any other changes which do not materially affect their quality or performance.

4.0 CANCELLATION

4.1 No order which has been accepted by Dodman may be cancelled by the Buyer except with the agreement in Writing of Dodman and on terms that the Buyer shall indemnify Dodman in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages, charges and expenses incurred or suffered by Dodman as a result of cancellation.

5.0 PRICE

5.1 The price of the Goods shall be Dodman’s quoted price, or when no price has been quoted (or where a quoted price is no longer valid), the price listed in Dodman’s published price list current at the date on which the Contract is formed in accordance with Condition 2.1. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by Dodman without giving notice to the Buyer.

5.2 Dodman reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increases in the cost to Dodman which was due to any factor beyond the control of Dodman (such as, without limitation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture); any change in delivery dates, quantities or Specifications for the Goods at the request of the Buyer, at any delay caused by any instructions of the Buyer or failure of the Buyer to give Dodman adequate information or instructions; or to comply with the requirements referred to in Condition 3.5.

5.3 All prices are given by Dodman on an ex-works basis (as defined in INCOTERMS 2000) exclusive of VAT and any other duties or taxes levied on Dodman whatsoever (for which the Buyer is also liable) and where Dodman agrees in Writing to deliver the Goods otherwise than at Dodman’s premises, the Buyer shall be liable to pay Dodman’s charges for transport, packaging and insurance.

6.0 DEPOSIT

6.1 Unless otherwise agreed or specified by Dodman in writing and as a condition precedent to Dodman’s obligations under the Contract the Buyer shall make a payment of 30% of the price of the Goods upon formation of the Contract in accordance with Condition 2.1.

7.0 PAYMENT TERMS

7.1 Unless otherwise agreed in Writing between the Buyer and Dodman, Dodman shall be entitled to invoice the Buyer for the price of the Goods, less any deposit paid under Condition 6 above, on or at any time after Dodman has notified the Buyer that the Goods are ready for collection or (as the case may be) Dodman has tendered delivery of the Goods.

7.2 The Buyer shall pay the price of the Goods in pounds sterling (unless the Special Conditions provide otherwise) within 30 days of date of Dodman’s invoice notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. No payment will be deemed to have been received until Dodman has received cleared funds. The time of payment of the price shall be the essence of the Contract. Receipts for payment will only be issued upon request.

7.3 The method of payment for the Goods shall be at Dodman’s discretion or as set out in the Special Conditions.

7.4 All sums payable to Dodman under the Contract will become due immediately upon termination of the Contract.

7.5 All payments to be made by the Buyer under the Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless the Buyer is required by law to make any such deduction or withholding.

7.6 If the Buyer fails to make any payment on the due date then, without prejudice to any of Dodman’s other rights or remedies, Dodman shall be entitled to:-

(a)     cancel the Contract and any other contracts or suspend any deliveries to the Buyer as set out in Condition 14;

(b)     appropriate any payment made by the Buyer to such of the Goods or the goods supplied under any other contract between the Buyer and Dodman as Dodman may think fit (notwithstanding any purported appropriation by the Buyer); and

(c)     charge the Buyer interest (both before and after any judgement and irrespective of whether the Contract has been terminated) on the amount unpaid, at the rate of 4% above National Westminster Bank plc base rate from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

8.0 DELIVERY

8.1 Unless specified otherwise in the Special Conditions, delivery of Goods shall be made by Dodman:-

(a)     ex-works as defined by INCOTERMS 2000; or

(b)     delivering or arranging for the delivery of the Goods to the Buyer’s premises when specifically agreed (and where the Buyer’s premises are outside the UK, the party responsible for obtaining the export licence will be specified in the Special Conditions); or

(c)     notifying the Buyer of the completion of the supply of Goods.

8.2 Any dates quoted for delivery of the Goods are estimated and approximate only and Dodman shall not be liable for any delay howsoever caused. Time for delivery shall not be of the essence unless previously agreed by Dodman in Writing.

8.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by Dodman to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

8.4 If the Buyer fails to take delivery of any of the Goods when they are ready for delivery or to provide any instructions, documents, licences or authorisations required to enable the Goods to be delivered (except solely on account of Dodman’s default), the Goods will be deemed to have been delivered or performed on the due date and (without prejudice to its other rights) Dodman may:-

(a)     store or arrange for storage of the Goods until actual delivery or sale in accordance with Condition 8.4 (b) and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance); and/or

(b)     following written notice to the Buyer, sell any of the Goods at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract or account to the Buyer for any excess achieved over the price under the Contract, in both cases having taken into account any charges related to the sale.

8.5 If Dodman fail to deliver the Goods for any reason other than cause beyond Dodman’s reasonable control or the Buyer’s fault and Dodman is accordingly liable to the Buyer, Dodman’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market or similar) to replace those not delivered over the price of the Goods.

9.0 DAMAGE DURING DELIVERY

9.1 Any claim by the Buyer which is based on any damage caused to the Goods during delivery shall (whether or not delivery is refused by the Buyer) be notified to Dodman within 3 days of the date of delivery provided that the Goods have been signed for with the carrier as damaged or unexamined by the Buyer. If the Buyer does not notify Dodman accordingly, the Buyer shall not be entitled to reject the Goods and Dodman shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods have been delivered in accordance with the Contract.

9.2 Where any valid claim in respect of damage caused to the Goods during delivery is notified to Dodman in accordance with this clause, Dodman shall be entitled to replace, or at Dodman’s sole discretion, repair the Goods (or the part in question) free of charge but Dodman shall have no further liability to the Buyer.

10.0 ATTENDANCE ON SITE

10.1 If any work including attendance is undertaken by Dodman on the Buyer’s premises in connection with the supply of Goods under these Conditions, the Buyer shall indemnify Dodman in respect of all claims or proceedings taken against Dodman by any third party including but not limited to Dodman’s employees, the Buyer’s employees or the employees of any contractor employed by the Buyer or Dodman or the personal representative or defendants of such employee or the third party in respect of death or personal injury or damage to property (including damage as a result of fire or explosion) caused by or arising out of the work in any manner whatsoever (save where death or personal injury is caused by the negligence of Dodman), and maintain the appropriate insurance policies against such liability.

11.0 RISK AND TITLE

11.1 Unless the Special Conditions provide otherwise risk of damage to or loss of the Goods shall pass to the Buyer:-

(a)     in the case of Goods to be delivered at Dodman’s premises at the time when Dodman notifies the Buyer that the Goods are available for collection; or

(b)     in the case of the Goods to be delivered otherwise than at Dodman’s premises at the time of delivery in accordance with Condition 8.1(b), or if the Buyer wrongfully fails to take delivery of the Goods, at the time when Dodman has notified the Buyer of delivery of the Goods in accordance with Condition 8.1 (c).

11.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions the property in the Goods shall not pass to the Buyer until Dodman has received in cash or cleared funds payment in full for the price of the Goods and all other goods or services agreed to be sold or supplied by Dodman to the Buyer for which payment is then due.

11.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as Dodman’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Dodman’s property. Until that time the Buyer shall be entitled to re-sell or use the Goods in the ordinary course of its business but shall account to Dodman for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.

11.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), Dodman shall be entitled at any time to require the Buyer to deliver up the Goods to Dodman and, if the Buyer fails to do so forthwith, to enter upon the premises of the Buyer, or any third party where the Goods are stored and repossess the Goods and the Buyer hereby grants Dodman an irrevocable licence to this effect which shall survive the termination of this Contract for any reason.

11.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Dodman, but if the Buyer does so all monies owing by the Buyer to Dodman shall (without prejudice to any of Dodman’s other rights or remedies) forthwith become due and payable.

11.6 On termination of the Contract, howsoever caused, Dodman’s (but not the Buyer’s) rights contained in this Condition 11 will remain in effect.

12.0 WARRANTIES AND LIABILITY

12.1 Except where the goods are sold to a person dealing as a consumer (within the meaning of the unfair contract terms act 1977), all warranties, conditions and stipulations, express (other than those set out in the contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the buyer, are excluded to the fullest extent permitted by law.

12.2 Subject to the conditions of this clause Dodman warrants that the goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 6 months from the date of their initial use or 6 months from their delivery, whichever is the first to expire.

12.3 The warranty at condition 12.2 is given by Dodman subject to the following conditions:-

(a)     Dodman shall be under no liability in respect of any defect in the goods arising from any drawing, design or specification supplied by the buyer; and

(b)     Dodman shall be under no liability in respect of any defect arising from fair wear and tear, or for damage, negligence, abnormal working conditions, failure to follow Dodman’s instructions (whether oral or in writing), misuse, alteration, tampering or repair of the goods without Dodman’s approval in writing; and

(c)     Dodman shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the goods has not been paid by the due date for payment; and

(d)     The buyer shall promptly notify Dodman of any defect becoming apparent and Dodman shall not be liable in respect of any defect (whether latent or not) which shall not have been notified within the warranty period.

12.4 The warranty at condition 12.2 does not extend to parts, materials or equipment not manufactured by Dodman, in respect of any of which the buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Dodman to the extent capable of transfer.

12.5 Dodman expressly reserves the right to charge the buyer for reasonable labour costs in relation to the warranty.

12.6 In the event of any breach of the warranty the remedies of the buyer will be limited to damages.

12.7 The buyer shall comply with all the instructions of Dodman regarding the return of the goods (to be by and at the expense of the buyer) and inspection of the goods to ascertain whether the claim under the warranty is valid and Dodman’s decision in this respect shall be final  and binding on the buyer.

12.8 Dodman does not exclude its liability (if any) to the buyer:

(a)     for breach of Dodman’s obligations arising under section 12 sale of goods act 1979 or section 2 sale and supply of goods and services act 1982;

(b)     for personal injury or death resulting from Dodman’s negligence;

(c)     under section 2(3) consumer protection act 1987;

(d)     for any matter which it would be illegal for Dodman to exclude or to attempt to exclude its liability; or

(e)     for fraud

12.9 Except as provided in the above provisions of condition 12, Dodman shall not be liable to the buyer for any reason whatsoever whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise for any injury, death, damage, or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever arising in connection with the supply of the goods or their use or re-sale by the buyer.

13.0 FORCE MAJEURE

13.1  Dodman shall not be liable to the Buyer or deemed to be in breach of the Contract by reason of any delay, or failure in performing any of Dodman’s obligations in relation to the Contract, if the delay or failure was due to any cause beyond Dodman’s reasonable control (including, without limitation any act of God, act of terrorism, Government act, fire, explosion, accident, civil commotion, industrial dispute, national emergency), and Dodman will be entitled to a reasonable extension of time for performing such obligations.

14.0 TERMINATION

14.1  This clause applies if:-

(a)     the Buyer is in material breach of any of the terms of the Contract and, where the breach is capable of remedy, the Buyer fails to remedy such breach within twenty eight days service of a written notice from Dodman, specifying the breach and requiring it to be remedied.  Failure to pay any sums due in accordance with Condition 7 is a material breach of the terms of the Contract which is not capable of remedy; or

(b)     the Buyer makes any voluntary arrangement with its creditors or becomes subject to an Administration Order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (other than for an amalgamation or reconstruction) or other such action with equivalent effect and/or meaning in the jurisdiction of the Buyer; or

(c)     an encumbrancer takes possession of, or a receiver or administrative receiver or manager is appointed over (or such action with equivalent effect and/or meaning in the jurisdiction of the Buyer), any of the property or assets of the Buyer; or

(d)     the Buyer ceases, or threatens to cease, to carry on business; or

(e)     Dodman reasonably apprehends that any of the events mentioned above is about to occur to the Buyer and notifies the Buyer accordingly.

14.2  If this Condition 14 applies then, without prejudice to any other right or remedy available to Dodman, Dodman shall be entitled to terminate the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

14.3  All sums payable to Dodman under the Contract will become due immediately upon termination of the Contract

15.0 INTELLECTUAL PROPERTY AND CONFIDENTIALITY

15.1  The Buyer acknowledges that all Intellectual Property Rights in the Goods, any materials, information or data generated as a result of the use by the Buyer of the Goods and the media and tangible property recording it, are the absolute property of Dodman.

15.2  No right or licence is granted to the Buyer in respect of the Intellectual Property Rights of Dodman, except the right to use, or re-sell the Goods, for the Purpose.

15.3  The Buyer shall only use the Goods in a manner suited to the Purpose and shall not, without limitation, copy, reproduce, reverse engineer, decompile, disassemble, modify or adapt the Goods without the prior written consent of Dodman.

15.4  The Buyer will not without Dodman’s prior consent allow any trade marks of Dodman or other words or marks applied to the Goods to be obliterated, obscured or omitted nor add any additional marks or words.

15.5  The Buyer shall:-

15.5.1              keep the Confidential Information secret;

15.5.2              only disclose the Confidential Information to any employee of the Buyer who is necessarily engaged in the Purpose and the Buyer shall ensure that such employee keeps the Confidential Information secret;

15.5.3              use the Confidential Information only for the Purpose; and

15.5.4              not copy the Confidential Information without the prior written consent of Dodman.

15.6  The Buyer acknowledges that the Confidential Information, and the media and tangible property recording it, is the absolute property of Dodman. The Buyer shall, on request by Dodman at any time, return to Dodman the Confidential Information including
any copies, notes, drawings or recordings made of the Confidential Information (or, where applicable and if Dodman so requests, the Buyer shall destroy or erase the same).

15.7  The Buyer’s obligations under these Conditions shall not extend to Confidential Information which the Buyer can prove to Dodman’s reasonable satisfaction;

15.7.1              has ceased to be secret without default on the Buyer’s part;

15.7.2              was already in the Buyer’s possession prior to disclosure by Dodman;

15.7.3              has been received from a third party who did not acquire it in confidence; or

15.7.4              was in the public domain.

16.0 GENERAL

16.1  Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may have been provided to the other party in Writing. Any notice served personally shall be deemed received when delivered; any notice sent by fax upon despatch (provided any normal answer-back shall have been received), any notice sent by First Class Post shall be deemed received 48 hours after posting or in the case of Airmail 14 days after being posted (excluding days other than business days).

16.2  No waiver by Dodman of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

16.3  If any provisions of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be effected thereby.  The Contract is personal to the Buyer who may not assign, the delegate, license, or hold on trust or sub-contract all or any of its rights or obligations under the Contract without Dodman’s prior written consent.

16.4  The parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.

16.5  The Buyer, where based outside the UK, will advise Dodman of any relevant legislation or regulatory provisions with which the Goods must comply in the Buyer’s jurisdiction.

16.6  The Contract and these Conditions including the Special Conditions overleaf contain all the terms which Dodman and the Buyer have agreed in relation to the Goods and supersedes any prior written or oral agreements, representations or understandings between the parties relating to such Goods. The Buyer acknowledges that it has not relied upon any statement, promise or representation, made or given by or on behalf of Dodman which is not set out in the Contract.

16.7  Any dispute arising under or in connection with these conditions or the sale of the Goods shall be referred to arbitration by the President of the Institute of Mechanical Engineers.

16.8  The headings in these Conditions are for convenience only and shall not effect their interpretation.

16.9  Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

16.10 The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any term of the Contract will be governed by English law. The English Courts will have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Contract. The parties agree to submit to that jurisdiction.