1.0 Terms of Contract
1.1 These Terms and Conditions of Sale shall be incorporated into all contracts of sale made by Hitachi Medical Systems, hereinafter referred to as “Hitachi”, for the sale of any goods and/or services (hereinafter referred to as the "goods"). Any printed or other terms used by the person, firm or company placing the order (hereinafter referred to as the “Customer”) are excluded. Hitachi shall not be bound by any terms or conditions in the Customer’s order. If the Customer’s order contains any terms and conditions then these Terms and Conditions of Sale shall take precedence over such terms and conditions in the Customer’s order which shall be deemed deleted without notice.
1.2 Amendment to any contract can only be made by agreement between the parties and to bind Hitachi must be made in writing and signed by the general manager of Hitachi. Any such amendment will entitle Hitachi to adjust the price and any delivery dates appropriately.
2.0 Quotations and Acceptance of Orders
No contract for the supply of goods will be created by the acceptance of a quotation or an order until Hitachi acknowledges the order or commences work on the order. Hitachi reserves the right to refuse to accept any order based upon a quotation unless the order is received by Hitachi within 30 days of the date of the quotation. The quotation may be withdrawn at any time within the 30 day period.
Goods will be supplied in accordance with Hitachi’s standard specification for the relevant type. Hitachi reserves the right to make such improvements to and modifications of such specification as it or its suppliers think desirable in all circumstances. All brochures, catalogues, price lists, samples, particulars of dimensions and other advertising or descriptive material submitted to the Customer are intended to be approximate only and to give a general impression of the goods. Unless expressly incorporated the same shall not form part of the Contract.
The specification for packaging the products shall be entirely at the discretion of Hitachi who shall have the right to pack all products in such manner and with such materials and in such quantities as it in its absolute discretion thinks fit and shall not be obliged to comply with any packaging instructions or requests of the Customers.
5.0 Delivery and Risk
5.1 In the case of:-
All UK sales involving delivery within the UK the goods will be delivered by Hitachi to the Customer’s premises. Goods shall be at the Customer’s risk immediately on delivery into the Customer’s premises (or into custody on Customer’s behalf if sooner) and should be insured accordingly. For M.R.I. systems the insurance risk passes to the customer only on completion of installation.
5.2 A delivery schedule should be agreed with Hitachi prior to placing the order. While Hitachi will endeavour to comply with such or any other agreed time(s) for delivery, Hitachi shall not in any circumstances be liable for any failure to do so.
5.3 Hitachi reserves the right to charge carriage, insurance and storage in cases where the Customer refuses to accept delivery of goods supplied by Hitachi.
5.4 Goods shall be signed for on receipt. Any alleged shortages, discrepancies or damage must be notified to Hitachi within 3 days of receipt of goods by notice in writing addressed to:-
Hitachi Medical Systems UK Limited
1, Davy Close
Park Farm Industrial Estate
5.5 The Customer shall be responsible for complying with any legislation or regulations (of the United Kingdom or any other country) governing the export and import of the goods into the country of destination (and any other country through which the goods pass in transit) and for the payment of any duties thereon. The Customer shall fully indemnify Hitachi against any fines, penalties, costs, claims, damages, losses and the expenses suffered by Hitachi as a result of the Customer failing to comply with this clause 5.5.
5.6 Where Hitachi is performing all or some of the installation of the goods, the Customer shall ensure that there is at all times at the relevant premises (at such locations as Hitachi may require) suitable and safe access and supplies of all things necessary to properly carry out installation, including (without limitation) supplies of water, light and power. Unless otherwise stated by the general manager of Hitachi it shall be the Customer's responsibility to ensure that the location for the goods is in all respects safe, appropriate and suitable for the goods.
6.0 Property and Risk
6.1 Hitachi shall retain title to the goods until it has received payment in full of all sums due in connection with the goods and for any other contract outstanding between Hitachi and the Customer. For these purposes Hitachi has only received a payment when the amount of that payment is irrevocably credited to its bank account.
6.2 The Customer shall store goods owned by Hitachi in such a way that they are clearly identifiable as Hitachi’s property and shall maintain records of such goods identifying them as Hitachi’s property. All goods supplied by Hitachi in the Customer’s possession shall be presumed to belong to Hitachi (unless the Customer can prove otherwise).
6.3 Customer will give not less than fourteen days notice to Hitachi before taking any steps for appointment of an administrator. Failure to give such notice shall be deemed to be a fundamental breach of the contract.
6.4 Customer’s right to possession of the goods will cease at the earliest of the following dates:
6.4.1 the date of a notice given under Clause 6.3 or the latest date on which such notice should have been given.
6.4.2 the date on which the Customer commits any act or makes any omission which would entitle a receiver to take possession of any asset or would entitle any person to present a petition for winding up or to apply for any administration order in respect of the Customer or any event referred to in Clause 6.5 occurs.
6.5 If the Customer fails to make any payment to Hitachi when due, compounds with its creditors, executes an assignment for the benefit of its creditors, has a bankruptcy order made or, being a company, enters into voluntary or compulsory liquidation or has a receiver, manager, administrator or administrative receiver appointed over all or part of its assets or takes or suffers any similar action in consequence of a debt or becomes insolvent or if Hitachi has reasonable cause to believe that any of these events is likely to occur, Hitachi shall have the right, without prejudice to any other remedies and without incurring any liability:
6.5.1 to enter without prior notice any premises where goods owned by it may be, and to repossess and dispose of any goods owned by it so as to discharge any sums owed to it by the Customer under this or any other contract:
6.5.2 to require the Customer not to resell or part with possession of any goods owned by Hitachi until the customer has paid in full all sums owed by it to Hitachi under this or any other contract;
6.5.3 cancel any undelivered or uncompleted part of the order;
6.5.4 cancel in whole or part any other contract with the Customer; and
6.5.6 to require any outstanding amounts from the Customer (under the order or any other contract made with the Customer) to be paid immediately.
6.5.3 to withhold delivery of any undelivered goods and stop any goods in transit.
6.6 Unless Hitachi expressly elects otherwise, any contract between it and the Customer for the supply of goods shall remain in existence notwithstanding any exercise by Hitachi of its rights under Clause 6. The Customer shall be responsible for any costs and expenses incurred by Hitachi in exercising its right under Clause 6.
6.7 Nothing in this Clause 6 shall give the Customer any right to return the goods. Hitachi may sue the Customer for the price when due (without prejudice to its other rights hereunder) notwithstanding that the property in the goods may not have passed to the Customer.
7.0 Price and Payment
7.1 Unless agreed separately and in writing by Hitachi the price of goods shall be the price ruling in Hitachi’s current Price List at date of despatch Hitachi has the right to alter the prices contained in the Price Lists at any time without prior notice and it shall notify the Customer of any variations before dispatch of the goods and the Customer shall be entitled upon receiving notification of such variation to cancel the Contract by written notice to Hitachi delivered within 7 days of such notification without incurring liability of Hitachi.
7.1.1 Unless otherwise agreed in writing all money due to Hitachi shall be paid 30 days following the date of the invoice. Any sums unpaid shall thereafter bear interest at 2% per calendar month accruing from day to day. For M.R.I. installations the terms of the specific MRI contract prepared by Hitachi shall prevail.
7.1.2 Unless otherwise agreed in writing for sales destined for export outside the UK payment by the Customer shall be made by irrevocable letter of credit, confirmed by a first class London bank at least ten days prior to the scheduled delivery date.
8.0 Warranties and Exclusions
8.1 Unless Hitachi specifies otherwise, Hitachi agrees to repair or (at its discretion) replace or (at its discretion) issue a credit note in respect of goods which are found to be defective (fair wear and tear excepted) and which are returned to or collected by Hitachi within 12 months of the date of delivery provided that each of the following are satisfied:
8.1.1 notification of any defect is given to Hitachi immediately upon it becoming apparent to the Customer:
8.1.2 the goods have only been operated under normal operating conditions, in accordance with the user manual and any training provided, and have only been subject to normal use;
8.1.3 any goods or parts of goods replaced shall become the property of Hitachi;
8.1.4 no work whatsoever (other than normal and proper maintenance) has been carried out to the goods or any part of the goods without Hitachi's prior written consent;
8.1.5 the defect has not arisen due to incorrect installation of the goods by the Customer;
8.1.6 the defect has not arisen because of the goods being used or stored incorrectly (including because of incorrect temperature, humidity, dust or power).
8.2 In view of the giving by Hitachi of the warranty in Clause 8.1 it is agreed between Hitachi and the Customer that the following are fair and reasonable.
8.2.1 All terms, conditions and warranties which might otherwise be implied into the Contract are excluded, save anything implied by Section 12 of Sale of Goods Act 1979 (warranty as to Title) as amended from time to time.
8.2.2. The Customer does not and has not relied upon Hitachi’s skill or judgement or any representation made by or on behalf of Hitachi in connection with the Contract and/or the goods, unless such representation was contained in any printed specification or technical data published by Hitachi, or was given in writing and signed by the general manager of Hitachi.
8.2.3 The warranty and the remedies expressly set out shall be the full extent of Hitachi’s liability for breach of contract, misrepresentation, or any tortious liability which will not in any event exceed the price of the goods. Hitachi shall not in any circumstances be liable for any other loss or damage whatsoever, including any consequential loss or any loss of profit, earnings or receipts or increased costs howsoever airing in any way in connection with the contract or the goods. This limit and these exclusions shall not apply to breach of the implied warranty of title, death or personal injury caused by Hitachi's negligence or the liability of Hitachi under the Consumer Protection Act 1989 to a person injured by a defective product.
9.0 Returned Goods
9.1 The Customer shall be responsible for the cost of carriage and insurance in respect of all goods returned by the Customer to Hitachi for service or credit which goods shall be at the risk of the Customer until actual receipt thereof by Hitachi.
9.2 Hitachi will not accept returned goods for credit or rectification unless such return has been authorised in writing by the technical Support Department of Hitachi and the goods are received by Hitachi in good saleable condition and Hitachi reserves the right to determine at its sole discretion whether to accept the return of the goods or whether to rectify the goods or whether to issue a credit note in respect thereof.
Orders, once accepted cannot be cancelled without mutual written agreement in which case the Customer agrees to indemnify Hitachi for all loss suffered by it as a result of cancellation.
11.0 Technical Information and Trademarks
11.1 All technical information, specifications and drawings and any other information of any kind not generally available to the public coming into possession of the Customer in connection with any Hitachi’s products remain the property of Hitachi and shall not be used by the Customer other than for the performance of any contract between Hitachi and the Customer. All documents shall be returnable on request.
11.2 All information of a technical nature and particulars of goods and performance given by Hitachi are given in good faith, but no responsibility is accepted by Hitachi for their accuracy and their supply shall not be used to found liability on Hitachi’s part.
11.3 The Customer shall not:
11.3.1 Apply any trademark of which Hitachi is the proprietor or registered user to the goods after they have suffered any alteration in their state of condition, get-up or packing;
11.3.2 Alter partly remove partly or partly obliterate any Hitachi Trade Mark:
11.3.3 Apply any other trade mark to the goods;
11.3.4 Add any other matter in writing that is likely to injure the reputation of any Hitachi Trade Mark.
11.4 If the goods include computer software the Customer shall acquire a licence only of the software on and subject to Hitachi's standard software licence terms from time to time.
12. Availability of Goods and Force Majeure
12.1 Delivery is subject to the availability of the goods and if, owing to non-availability of such goods or any other cause beyond the control of Hitachi, Hitachi shall be unable to carry out its obligations hereunder it shall be entitled to extend time for performance for a reasonable period and/or determine this Contract forthwith by giving notice in writing to the Customer to that effect.
12.2 Hitachi shall not be liable for any loss or damage arising from a failure to perform its obligations for any reason whatsoever not within Hitachi’s control.
In the event that any of these Conditions or any part of them shall be held to be invalid or unenforceable, such invalidity or unenforceability of such condition or part thereof shall not affect the validity and enforceability of all remaining Conditions and parts of Conditions.
14. Proper Law and Justification
14.1 This Contract shall in all respects be governed by English Law.
14.2 The Customer submits to the non-exclusive jurisdiction of the English Courts, without prejudice to the right of Hitachi to bring any action before any other courts having jurisdiction.
15.1 Any notice, consent, notification, acknowledgement, authority or agreement required or referred to in the Contract shall be:
15.1.1 in writing; and
15.1.2 given to the party for whom it is intended at such party's registered or main office or last known address; and
15.1.3 given by registered or recorded delivery post or facsimile transmission and shall be deemed to have been received 5 days after the date of posting or 1 day after the date of transmission as the case may be.
16. Export Compliance Programme/Policy (ECP)
Please be informed of our policy of export control and note that we will strictly adhere to it and need your consensus for the following:
16.1 You shall not use any products, software and/or technology relating thereto provided Hitachi Medical Systems Europe Holding AG (hereinafter "HITACHI") to you and any other products, software and/or technology manufactured or developed by using them (hereinafter called,“ PRODUCTS “) for the purposes of disturbing international peace and security, including (i)the design ,development, production, stockpiling, or any use of weapons of mass destruction such as nuclear, chemical or biological weapons or missiles, (ii) the other military activities, or (iii) any use supporting these activities .
16.2 You shall not sell, export, dispose of, license, rent, transfer, disclose or otherwise provide the PRODUCTS to any third party whether directly or indirectly with knowledge or reason to know that the third party or any other party will engage in the activities described above. You shall obtain these same representations and warranty from any third party to whom it sells, exports, dispose of, licenses, rents, transfers, discloses, or otherwise provides the PRODUCTS.
16.3 You shall not directly or indirectly, export, re-export tranship or otherwise transfer the PRODUCTS in violation of any applicable export control laws and regulations promulgated and administered by the governments of the countries asserting jurisdiction over the parties or transactions.
17. Use of Customer Data
17.1 The Customer acknowledges that Hitachi collects, stores, processes and transfers personal data necessary for or before the fulfilment of a contract in strict compliance with all applicable provisions, including the European General Data Protection Regulation (GDPR) and the Hitachi Privacy Declaration. In accordance with the Privacy Declaration the Customer will receive a newsletter, unless unsubscribed by the Customer. The Hitachi Privacy Declaration informs the Customer about the data categories processed, for which purpose and based on which justification reason the processing is done, the recipients as well as the rights of the data subject and additional information in accordance with Art. 13 ff. GDPR. The Customer will find our Privacy Declaration on our website: http://www.hitachi-medical-systems.co.uk/privacy-declaration.html.
17.2 In the context of support and maintenance or during warranty period, the Customer ensures and is responsible that no patient data is visible for Hitachi staff. If it is unavoidable and patient data becomes visible for Hitachi, a data processing agreement (DPA) needs to be agreed. In case none is specifically agreed, the DPA as published on Hitachi’s website.
17.3 The Customer is responsible to inform the Customer’s employees and representatives about the processing agreed in this Clause.