TERMS AND CONDITIONS OF SALE (GLOBAL) SAMURAI MACHINE TOOLS LTD
Your attention is drawn in particular to the provisions of Conditions 15
1 Interpretation
1.1 In these Conditions:
“Business Days” means a day (other than a Saturday or Sunday) when banks are open for business in London;
“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 Samurai and the customer;
“Contract” means the contract for the sale and supply of the Goods and/or Services;
“Customer” means the purchaser;
“Delivery address” means the address stated in the Sales Order Confirmation;
“Descriptions” means samples submitted, indications of performance and descriptions, specifications, illustrations, forecasts or other information whether in trade literature, brochures or otherwise;
“Force Majeure” means limitation, strikes, labour disputes, lock outs, accidents, fires, delays in manufacture, transportation or carriage or delivery of goods and materials, floods, severe weather conditions, embargoes, governmental actions;
“Goods” means goods supplied by Samurai and purchased by the Customer;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in design, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;
“Machine” is a good comprised within the Goods and is a new machine unused in production.
“Samurai” means Samurai Machine Tools LTD;
“Order” means the Customer’s purchase order;
“Price” means the price of the Goods and/or the charge for the Services;
“Quotation” means the invitation to treat delivered to the Customer in response to an enquiry;
“Sales Order Confirmation” means a written acknowledgement of the Order issued by Samurai;
“Services” means the services (if any) described in the Order;
“Specification” includes any plans, drawings, data or other information relating to the Goods or Services which is specified in the Sales Order
1.2 Any reference in these Conditions to a statute or a provision of statute will be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
2 Application, Quotation and Acceptance
2.1 These Conditions and the Sales Order Confirmation apply to any contract between Samurai and the Customer for the sale or supply of Goods and/or Services. In the event of any conflict between the Sales Order Confirmation and these Conditions, the Sales Order Confirmation shall prevail. No terms or conditions endorsed upon, delivered with or contained in the specification or other document created by the Customer will form part of the Contract. These Conditions apply to all sales by Samurai and any variation to them and any representation shall have no effect unless expressly agreed in writing by Samurai.
2.2 Each Order by the Customer shall be deemed to be an offer by the Customer to purchase the Goods and/or Services subject to these Conditions. No Order placed by the Customer shall be deemed to be accepted by Samurai until a Sales Order Confirmation is issued by Samurai. The Contract shall be deemed to have been made in England and to have been made upon Samurai sending the Sales Order Confirmation to the Customer.
2.3 The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Samurai which is not set out in the Contract. Nothing in this clause shall exclude or limit Samurai’ liability for fraudulent misrepresentation.
3 Specifications and improvements
3.1 Descriptions are issued and published for the sole purpose of giving an approximate idea of the type, class and general character of Goods or Services only and not as importing terms or warranties as to substance, productivity performance, colour, quality, or dimension and they will not form part of the Contract. The Contract is not a sale by sample.
3.2 Samurai reserves the right to make specification changes necessary to conform to applicable health and safety and other statutory or regulatory requirements.
3.3 The Customer warrants that the terms of its Order are complete and accurate. Samurai accepts no responsibility for any errors, omissions or other defects (including without limitation breach of any third party’s Intellectual Property Rights) in any drawings, designs, or specifications prepared by or on behalf of the Customer and Samurai shall be indemnified by the Customer against any and all liabilities, costs and expenses incurred by Samurai arising therefrom.
3.4 Samurai reserves the right from time to time to review, modify or vary the technical specifications and designs of any goods, provided that the quality and finish of the Goods as delivered shall be at least equivalent in all material respects to that of the Goods described in the Contract.
4 Prices
4.1 A Quotation issued by Samurai does not create a Contract until Samurai sends a Sales Order Confirmation to the Customer. A Quotation is valid for 30 days from the date of issue, subject to prior withdrawal by Samurai.
4.2 Prices for Goods and Services in the Sales Order Confirmation are based on the costs to Samurai at the date of the Sales Order Confirmation (“the Price”). Samurai shall be entitled after the date of the Quotation or Sales Order Confirmation in the making, obtaining, handling or supplying of the Goods or Services or (with regard to imported goods) due to exchange rate fluctuations to vary the Price (save that where the price for any Goods or Services is stated in sterling, there shall be no adjustment for exchange rate fluctuations unless expressly provided for in the Quotation or Sales Order Confirmation).
4.3 Unless otherwise specified by Samurai the Price for the Goods is exclusive of delivery, carriage and insurance to the Delivery Address. Prices quoted for spare parts or consumables are ex works Leamington Spa. Packaging and delivery of spare parts or consumables to the Customer’s works will be charged separately to the Customer in addition to the Price.
4.4 VAT and other tax or duties payable by the Customer shall be added to the Price at the prevailing rate.
4.5 Import duties or taxes will be declared at customs and are payable by the Customer.
5 Instalments
5.1 Samurai may deliver by instalments.
5.2 Where delivery is made by instalments each instalment shall be treated as a separate contract and payment for each instalment shall accordingly be made by reference to the Price of the Goods comprised in such instalment.
5.3 Delay, default or non-delivery in respect of any instalment on the part of Samurai shall not entitle the Customer to cancel the remainder of the Contract.
5.4 Without prejudice to Samurai’ remedies in clause 5, failure by the Customer to pay for any instalment when payment is due shall entitle Samurai to withhold delivery of further instalments until receipt of payment.
6 Delivery
6.1 Delivery will be made by a third party to the Delivery Address and shall be deemed as having been delivered on the date of delivery or in accordance with clause 6.3.
6.2 The Customer must:
6.2.1 immediately notify Samurai in writing advising Samurai that delivery has not taken place if the Goods have not been received within 5 Business Days of the date of Samurai’ advice note or the despatch note of Samurai’s carrier advising the Customer of a date for delivery of the Goods;
6.2.2 if the Goods are not inspected on delivery, endorse the carrier’s waybill “Unexamined”, and notify Samurai and Samurai’s carrier within 2 Business Days of delivery of the Goods if there is any apparent damage, shortage or breakage.
6.3 If the Customer fails to accept delivery of any of the Goods or provision of any Services when tendered, or if delivery of the Goods or provision of the Services is delayed at the Customer's request:
6.3.1 the Goods will be deemed to have been delivered and the Services deemed to have been supplied; and
6.3.2 risk in the Goods will pass to the Customer (including for loss or damage caused by Samurai’s negligence); and
6.3.3 the Price of the Goods and/or the Services shall immediately be due and payable; and
6.3.4 Samurai may store the Goods, in which case the Customer will be liable for all related costs and expenses incurred by Samurai.
6.4 Samurai shall not be liable for any non-delivery of the Goods (even if caused by Samurai’s negligence) unless without prejudice to clause 6.3.2, written notice is given to Samurai advising Samurai that delivery has not taken place within 7 days of the date of Samurai’s advice note or the despatch note of Samurai’s carrier notifying the Customer of a date for delivery. Any liability of Samurai for non-delivery of the Goods shall be limited to one of the following options at the discretion of Samurai:
6.4.1 replacing such Goods within a reasonable time or;
6.4.2 issuing a credit note at the pro rata contract rate against any invoice raised for such Goods or
6.4.3 returning the deposit paid in accordance with clause 8.1
7 Time
7.1 Whilst Samurai will try to meet the Customer’s delivery requirements, delivery dates quoted by Samurai or set out in the Contract are target dates only. Time for delivery or performance shall not be made of the essence by notice or otherwise. If no dates are specified, delivery will be within a reasonable time.
7.2 Without prejudice to the other provisions of these Conditions, Samurai will not be liable for direct loss of profit, production, opportunity, goodwill, costs, damages, charges or expenses, and any indirect or consequential losses, caused directly or indirectly by any delay in the delivery of the Goods, nor will any delay entitle the Customer to terminate or rescind the Contract.
8 Payment
8.1 Unless otherwise specified by Samurai in the Sales Order Confirmation and subject to clause 8.6 below:
8.1.1 Payment in respect of Services shall be made within 30 days after performance of each of the Services and notified to the Customer by Samurai as having been completed.
8.1.2 Except for spare parts or consumables which are ordered or supplied as part of the Goods, payment in respect of spare parts or consumables shall be made within 30 days after delivery thereof.
8.1.3 Payment in respect of Goods (including consumables and spare parts ordered or supplied at the same time as the Goods) shall be made as follows:
8.1.3.1 A non-returnable deposit of 30% of the Price for the Goods (together with VAT thereon) shall be paid by the Customer immediately upon receipt of the Sales Order Confirmation (unless otherwise stated in the Sales Order Confirmation).
8.1.3.2 Upon the Customer being notified in writing of the Goods being available for delivery, the Customer shall pay 70% of the Price (together with VAT thereon) before the Goods are despatched by Samurai to the Customer, save where the purchase of the goods is to be financed through a third party company.
8.1.3.3 Where the purchase of the Goods is to be financed through a third party finance company, which third party finance company shall be approved by Samurai such approval shall not be unreasonably withheld or delayed, the full balance of the Price (together with VAT thereon) shall be paid prior to delivery.
8.1.3.4 Where the payment is made by the Customer, it is the Customer's responsibility to ensure their funds come from legal business activities and are in no way involved in fraudulent transactions or money laundering activities. Samurai accepts no liability if monies transferred into Samurai’s bank account are from illegitimate sources.
8.1.3.4.1 If it is later discovered that monies deposited into Samurai’s bank account are from illegitimate or fraudulent sources, Samurai will not be required to fulfil delivery of the Goods or Services, and this contract may be terminated.
8.1.3.4.2 Samurai reserves the right to repossess any of the Goods in respect of which payment is reversed, illegitimate, illegal, or fraudulent and thereafter to re-sell the same, and for this purpose the Customer hereby grants to Samurai, its agents and employees, an irrevocable licence to enter upon the Customer’s premises.
8.2 If the Customer fails to pay any amount when it is due or if the Customer has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or being a body corporate convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer or the Customer shall
cease to trade, or if the Customer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between Samurai and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer encumbers or in any way charges any of the Goods then the purchase price of all services and all goods invoiced delivered or tendered for delivery by Samurai shall become forthwith due and payable by the Customer and Samurai shall further be entitled without liability and without prejudice to its other rights to treat as cancelled this Contract and/or any other contract made between Samurai and the Customer and/or suspend the delivery of all goods or provision of all services (including the provision of remedial maintenance or warranty services under any such contract).
8.3 Time for payment shall be of the essence.
8.4 Samurai reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
8.5 All amounts due to Samurai shall be paid in full without deduction or set off unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Samurai to the Customer. All amounts payable to Samurai under the Contract shall become due immediately on its termination.
8.6 Any extension of time allowed to the Customer to pay the Price may be varied or withdrawn by Samurai at any time.
9 Title and Risk
9.1 Title to the Goods supplied by Samurai shall remain vested in Samurai until the Price and all other monies owing by the Customer to Samurai in relation to the Goods or otherwise are paid in full either in cash or in cleared funds. Until such payment, the Customer shall have possession of the Goods on a fiduciary basis as Samurai’s bailee and shall store the Goods in such a way as to enable them to be identified as the property of Samurai. Samurai reserves the right to repossess any of the Goods in respect of which payment is overdue and thereafter to re-sell the same, and for this purpose the Customer hereby grants to Samurai, its agents and employees, an irrevocable licence to enter upon the Customer’s premises.
9.2 Samurai shall be entitled to recover payment for the Goods notwithstanding that legal or beneficial ownership of the Goods has not been passed to the Customer.
9.3 The risk in the Goods shall pass to the Customer upon delivery of the Goods or upon the Goods being tendered for delivery in accordance with clause 6.3 at the Delivery Address. Until payment is made, the Customer shall keep the Goods insured against all risks for their full replacement value.
10 Tests and Installation Acceptance Certificate
10.1 The Goods will be deemed to have passed the geometric standards and tolerances described in the associated documentation delivered with the Goods, prior to delivery. If the Customer requires any additional tests to be carried out, full details must accompany the Order. If Samurai agrees to carry out such tests, Samurai shall be entitled to make an additional charge in respect of the costs incurred. Where tests are to be carried out prior to delivery the Customer shall ensure that all necessary components or materials required in connection with such tests are made available by such date as Samurai may require. Components or materials supplied by the Customer to enable the tests to be carried out must be in a condition suited to the requirements of the tests concerned.
10.2 Following delivery of the Goods and satisfactory completion of any tests referred to in clause 10.1, Samurai shall deliver to the Customer the Installation Acceptance Certificate.
10.3 In the event of any Good’s failure to comply with the Specification, the Customer shall complete the non-conformity section of the Installation Acceptance Certificate. No entry shall be made in the non-conformity section and no such written report shall be made to Samurai in relation to non-conformities which are not related to the Specification detailed in the Sales Order Confirmation. If any such matter should be inserted in any such Installation Acceptance Certificate it shall be disregarded. The Customer shall sign such certificate and return it to Samurai within 20 Business Days. Samurai shall carry out necessary remedial action in respect of matters stated and properly included in the non-conformity section of the Installation Acceptance Certificate. On completion of such remedial action the foregoing provisions of this clause shall apply again as they did on delivery. Subject to items reported within the time limited by this clause 10.3, the Goods shall be deemed free from defects and in all respects in accordance with the Specification and other requirements of the Contract except only to such extent (if any) as could not reasonably be discovered on such testing.
10.4 Without prejudice to the terms of clause 10.3 in relation to remedial action, the Goods will be deemed to have been accepted upon the earlier of:
10.4.1 the date on which the Installation Acceptance Certificate is required under clause 10.3 to be signed and returned irrespective of whether this has been done: and
10.4.2 the date on which the Customer commences to make use of the Goods without Samurai’s prior written agreement.
11 Confidential Information
11.1 All technical data, drawings, reports, documents and information whatsoever which Samurai submits to the Customer in connection with the Contract are confidential and such information and the copyright therein shall remain Samurai’s property, and must neither be copied nor shown to any third party without Samurai’s prior written consent.
11.2 Such information shall not be provided to a third party unless that third party is bound by a confidentiality obligation in similar terms.
12 Intellectual Property
12.1 Samurai warrants that so far as it is aware the Goods manufactured by third parties and supplied by Samurai do not infringe any Intellectual Property Rights, but subject thereto no warranty is given by Samurai that the Goods manufactured by third parties do not infringe any such rights. In the event of any claim being made or action being brought against the Customer in respect of any infringement or alleged infringement of such rights by the use or sale of such goods, the Customer shall notify Samurai immediately. Thereupon Samurai shall, so far as it is able, seek to extend to the Customer the benefit of any indemnity given by the manufacturer of the Goods in respect of such claims. Where such indemnity is provided, Samurai and its appointed representatives shall be entitled to conduct all negotiations relating to the claim or any litigation that may arise therefrom including the conclusion of a settlement thereof.
12.2 Insofar as any Intellectual Property Rights in respect of the Goods supplied by Samurai and in any materials embodying any such rights vest automatically by operation of law in the Customer, the Customer holds legal title in such rights and inventions on trust for Samurai. The Customer agrees to assign on demand to Samurai all such existing and future Intellectual Property Rights in respect of the Goods and in any materials embodying such rights. Where the Customer has signed a Sales Order Confirmation the Customer’s signature shall constitute an assignment of all such existing and future Intellectual Property Rights in the Goods and in any materials embodying such rights to Samurai.
12.3 The Customer undertakes and agrees to indemnify Samurai and to hold it harmless on demand against any costs, claim, damage, action or proceedings suffered by Samurai as a result of any actual or alleged infringement of any Intellectual Property Rights of the manufacturer of the Goods or any third party where such infringement occurs by reason of:
12.3.1 any feature or design incorporated at the Customer's request in any Goods purchased by the Customer, or;
12.3.2 any addition, alteration or adaptation made to the Goods by the Customer (without the prior written authorisation of Samurai) after delivery of the Goods.
12.4 For the avoidance of doubt, clause 12.2 applies only to Intellectual Property Rights in the Goods as supplied by Samurai. All Intellectual Property Rights in workpieces, components, drawings, CAD/CAM data and programs created by or for the Customer remain the exclusive property of the Customer.
13 Force Majeure
13.1 If Samurai is prevented, hindered or delayed from making delivery of the Goods or from performing the Services by reason of any delay caused by Force Majeure or circumstance of whatever nature beyond Samurai’s reasonable control, Samurai shall not be regarded as being in breach of the Contract and shall not be liable to the Customer for any loss or damage suffered by the Customer.
13.2 In the event of delay caused by Force Majeure for a continuous period of longer than 90 days Samurai may terminate the Contract without fault and Samurai shall reimburse the part payment of the Price less than the ascertainable costs incurred by Samurai in having part performed the Contract.
14 Customer’s Delay - Cancellation
14.1 Without prejudice to clause 6.3, if Samurai or the third party courier is prevented, hindered or delayed from making delivery of the Goods or performing the Services by reason of delay or default on the part of the Customer or if the Customer refuses to take delivery of the Goods or to permit performance of the Services or cancels, determines, or rescinds the Contract or purports so to do then Samurai shall not be liable for any loss or damage whatsoever arising out of any such circumstances and (without prejudice to any other right or remedy of Samurai) Samurai may, on giving notice to the Customer, regard the Contract as completed in its then partial state of completion, in which case Samurai will be entitled to:
14.1.1 stop all work as soon as reasonably practicable;
14.1.2 retain any deposit paid by the Customer to Samurai or set the same off against sums due to Samurai;
14.1.3 store the Goods for 14 days and at the end of such period sell such Goods in mitigation of Samuria’s losses;
14.1.4 invoice the Customer for the Goods in an amount equal to the full cost of all finished and unfinished Goods and unperformed services and committed non-refundable costs paid by Samurai; and
14.1.5 save in cases of cancellation, determination or rescission by the Customer, whether actual or purported, offer to reinstate the Contract at the earliest practicable date, subject to the Customer and Samurai agreeing prices and terms.
15 Defects
15.1 The Customer must give written notice of any defect in the Goods to Samurai within 5 Business Days of the time when the Customer discovers or ought to have discovered any apparent damage, shortage, breakage or visual defect as a result of damage in transit defect;
15.2 Samurai shall not be liable for any defects:
15.2.1 within 6 months of delivery in the case of a computer programme or programming manual;
15.2.2 within 30 days of practical completion in the case of Services provided by Samurai;
15.2.3 within 6 months of the date of fitting by Samurai, in the case of spare parts fitted by Samurai; and
15.2.4 in the case of all other defects connected with a Machine, within 12 months or (if earlier) 4,000 operating hours from delivery, unless an extended warranty period is specified in the Sales Order Confirmation, in which case the longer warranty period prevails.
15.3 All warranties, conditions and other terms implied by statue or common law (save for the conditions implied by section 120 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
15.4 Samurai gives no guarantee and shall not be liable for any defect in the Goods where any defect arises by reason of:
15.4.1 any failure of the Customer to install, operate or maintain the Goods in a proper and workmanlike manner for the purpose and not beyond the capacity indicated, and that routine maintenance and standard operating procedures as recommended by Samurai have been strictly adhered to;
15.4.2 the programming, operation and maintenance of the Goods having been undertaken by operatives any one of whom has not completed successfully Samurai’s training course;
15.4.3 the Customer altering or repairing the Goods without the written consent of Samurai;
15.4.4 any information and details contained in Samurai’s advertising, sales and technical literature being relied upon. All information and details contained in Samurai’s advertising sales and technical literature is provided for guidance only and its accuracy is not guaranteed. No such data or information will form part of the Contract and Samurai will not in any event be liable for any inaccuracies or omissions.
15.4.5 reliance by the Customer upon any advice of Samurai relating to the use of the Goods. At all times it is for the Customer to satisfy itself of the suitability of the Goods for its own particular purpose. Unless expressly agreed by Samurai in writing, Samurai does not warrant that the Goods are suitable for any particular purpose whether or not such purpose has been notified to Samurai and any implied warranty or condition (statutory or otherwise) to that effect is excluded;
15.4.6 Samurai not having been provided with a reasonable opportunity for examination after receiving a notice of defect in accordance with clause 15.1, and the Customer (if reasonably requested by Samurai) returning such Goods to Samurai’s place of business at the Customer’s cost, for the examination to take place there;
15.4.7 the Customer using the Goods after it becomes aware of a defect or after circumstances arising which should reasonably have indicated to the Customer the existence of a defect.
15.5 If the Goods or Services are defective and the Customer has complied with clause 15, Samurai’s liability shall be limited to one of the following options, which option shall be at Samurai’s sole discretion as follows:
15.5.1 re-execute and such Services; or
15.5.2 repair or replace the Goods (or the defective part); or
15.5.3 refund the price of such Goods at the relevant market value but in any event no greater than the Price.
15.6 If Samurai complies with clause 15.4 it shall have no further liability for a breach of any of the warranties in clause 15.1 in respect of such Goods and Services.
16 Limitation of Liability
16.1 The Customer acknowledges that Samurai’s limitations of liability set out in these Conditions are commercially reasonable. The Customer’s attention is drawn to the benefits of obtaining insurance cover for any claims for which Samurai is (pursuant to these Conditions or otherwise) not liable.
16.2 Subject to clauses 2.3, 6.4, 7.2 and 14, the following provisions set out the entire financial liability of Samurai (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
16.2.1 any breach of these Conditions;
16.2.2 any use made or resale by the Customer of any of the Goods or any product incorporating any of the Goods; and
16.2.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
16.3 Subject to clause 16.4:
16.3.1 Samurai’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the extent of insurance cover purchased by Samurai from time to time which cover shall be supplied on request to the Customer, (after such cover has been applied in meeting any such liability as is mentioned in clause 16.4).
Provided that where Samurai’s liability is not covered by the insurance referred to in clause 16.1, Samurai’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Price of the Goods or Services which are the subject of the Contract concerned; and
16.3.2 Samurai shall not be liable to the Customer in respect of any claim under the Contract or otherwise for:
16.3.2.1 loss of profits; or
16.3.2.2 loss of business; or
16.3.2.3 depletion of goodwill and/or similar losses; or
16.3.2.4 loss of anticipated savings; or
16.3.2.5 loss of goods; or
16.3.2.6 loss of contract; or
16.3.2.7 loss of use; or
16.3.2.8 loss or corruption of data or information; or
16.3.2.9 any special, indirect, consequential loss, costs, damages, charges or expenses
16.4 Nothing in these Conditions excludes or limits the liability of Samurai for death or personal injury caused by Samurai’s negligence or fraudulent misrepresentation.
17 General
17.1 Any provision of these Conditions held by a court to be invalid shall be severable.
17.2 These Conditions shall remain in full force and effect notwithstanding that obligations under the Contract may have been performed or discharged.
17.3 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any terms of the Contract
17.4 The Customer shall not be entitled to assign all or any part of the Contract without the prior written consent of Samurai.
17.5 The waiver of any breach of any of these Conditions or the non enforcement or delay in enforcement of any of these Conditions shall not prevent the subsequent enforcement
of that Condition or the exercise of any right arising from that breach and shall not be deemed a waiver of any continuing or subsequent breach.
17.6 Notices shall be deemed to have been duly given if sent by pre paid first class post to [address], facsimile transmission (fax number: [ ]) (confirmed by pre paid first class post)
or personal delivery. Notices given by post shall be deemed to have been given 2 Business Days after despatch and notices given by facsimile transmission or personal delivery
on the date of transmission or delivery.
17.7 Samurai reserves the right to terminate this agreement shall we suspect any fraudulent or suspicious activity of the Customer regarding payments or otherwise.
17.8 These Conditions and the Contract shall be governed by and construed in all respects in accordance with English law and the Customer hereby submits to the exclusive jurisdiction of the courts of England and Wales.
17.9 At any time and for any reason Samurai will be allowed to terminate this and any relating contracts. Upon doing so the full order payment must be returned to the Customer.
18 Anti-bribery
18.1 The Customer shall not itself or through any intermediary and none of its officers, employees, agents, representatives, contractors, or other persons acting with the authority of the Customer will take any action, directly or indirectly, that would constitute an offence under or breach of:
18.1.1 the Bribery Act 2010 as amended from time to time;
18.1.2 any other applicable anti-bribery laws or regulations anywhere in the world, or
18.1.3 Samurai’s Code of Ethics and Policies;
18.1.4 and any breach of this clause shall be a material breach which is incapable of remedy thereby entitling Samurai to terminate this agreement forthwith.
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Terms and Conditions
TERMS AND CONDITIONS OF SALE (GLOBAL) SAMURAI MACHINE TOOLS LTD
Your attention is drawn in particular to the provisions of Conditions 15
1 Interpretation
1.1 In these Conditions:
“Business Days” means a day (other than a Saturday or Sunday) when banks are open for business in London;
“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 Samurai and the customer;
“Contract” means the contract for the sale and supply of the Goods and/or Services;
“Customer” means the purchaser;
“Delivery address” means the address stated in the Sales Order Confirmation;
“Descriptions” means samples submitted, indications of performance and descriptions, specifications, illustrations, forecasts or other information whether in trade literature, brochures or otherwise;
“Force Majeure” means limitation, strikes, labour disputes, lock outs, accidents, fires, delays in manufacture, transportation or carriage or delivery of goods and materials, floods, severe weather conditions, embargoes, governmental actions;
“Goods” means goods supplied by Samurai and purchased by the Customer;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in design, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;
“Machine” is a good comprised within the Goods and is a new machine unused in production.
“Samurai” means Samurai Machine Tools LTD;
“Order” means the Customer’s purchase order;
“Price” means the price of the Goods and/or the charge for the Services;
“Quotation” means the invitation to treat delivered to the Customer in response to an enquiry;
“Sales Order Confirmation” means a written acknowledgement of the Order issued by Samurai;
“Services” means the services (if any) described in the Order;
“Specification” includes any plans, drawings, data or other information relating to the Goods or Services which is specified in the Sales Order
1.2 Any reference in these Conditions to a statute or a provision of statute will be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
2 Application, Quotation and Acceptance
2.1 These Conditions and the Sales Order Confirmation apply to any contract between Samurai and the Customer for the sale or supply of Goods and/or Services. In the event of any conflict between the Sales Order Confirmation and these Conditions, the Sales Order Confirmation shall prevail. No terms or conditions endorsed upon, delivered with or contained in the specification or other document created by the Customer will form part of the Contract. These Conditions apply to all sales by Samurai and any variation to them and any representation shall have no effect unless expressly agreed in writing by Samurai.
2.2 Each Order by the Customer shall be deemed to be an offer by the Customer to purchase the Goods and/or Services subject to these Conditions. No Order placed by the Customer shall be deemed to be accepted by Samurai until a Sales Order Confirmation is issued by Samurai. The Contract shall be deemed to have been made in England and to have been made upon Samurai sending the Sales Order Confirmation to the Customer.
2.3 The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Samurai which is not set out in the Contract. Nothing in this clause shall exclude or limit Samurai’ liability for fraudulent misrepresentation.
3 Specifications and improvements
3.1 Descriptions are issued and published for the sole purpose of giving an approximate idea of the type, class and general character of Goods or Services only and not as importing terms or warranties as to substance, productivity performance, colour, quality, or dimension and they will not form part of the Contract. The Contract is not a sale by sample.
3.2 Samurai reserves the right to make specification changes necessary to conform to applicable health and safety and other statutory or regulatory requirements.
3.3 The Customer warrants that the terms of its Order are complete and accurate. Samurai accepts no responsibility for any errors, omissions or other defects (including without limitation breach of any third party’s Intellectual Property Rights) in any drawings, designs, or specifications prepared by or on behalf of the Customer and Samurai shall be indemnified by the Customer against any and all liabilities, costs and expenses incurred by Samurai arising therefrom.
3.4 Samurai reserves the right from time to time to review, modify or vary the technical specifications and designs of any goods, provided that the quality and finish of the Goods as delivered shall be at least equivalent in all material respects to that of the Goods described in the Contract.
4 Prices
4.1 A Quotation issued by Samurai does not create a Contract until Samurai sends a Sales Order Confirmation to the Customer. A Quotation is valid for 30 days from the date of issue, subject to prior withdrawal by Samurai.
4.2 Prices for Goods and Services in the Sales Order Confirmation are based on the costs to Samurai at the date of the Sales Order Confirmation (“the Price”). Samurai shall be entitled after the date of the Quotation or Sales Order Confirmation in the making, obtaining, handling or supplying of the Goods or Services or (with regard to imported goods) due to exchange rate fluctuations to vary the Price (save that where the price for any Goods or Services is stated in sterling, there shall be no adjustment for exchange rate fluctuations unless expressly provided for in the Quotation or Sales Order Confirmation).
4.3 Unless otherwise specified by Samurai the Price for the Goods is exclusive of delivery, carriage and insurance to the Delivery Address. Prices quoted for spare parts or consumables are ex works Leamington Spa. Packaging and delivery of spare parts or consumables to the Customer’s works will be charged separately to the Customer in addition to the Price.
4.4 VAT and other tax or duties payable by the Customer shall be added to the Price at the prevailing rate.
4.5 Import duties or taxes will be declared at customs and are payable by the Customer.
5 Instalments
5.1 Samurai may deliver by instalments.
5.2 Where delivery is made by instalments each instalment shall be treated as a separate contract and payment for each instalment shall accordingly be made by reference to the Price of the Goods comprised in such instalment.
5.3 Delay, default or non-delivery in respect of any instalment on the part of Samurai shall not entitle the Customer to cancel the remainder of the Contract.
5.4 Without prejudice to Samurai’ remedies in clause 5, failure by the Customer to pay for any instalment when payment is due shall entitle Samurai to withhold delivery of further instalments until receipt of payment.
6 Delivery
6.1 Delivery will be made by a third party to the Delivery Address and shall be deemed as having been delivered on the date of delivery or in accordance with clause 6.3.
6.2 The Customer must:
6.2.1 immediately notify Samurai in writing advising Samurai that delivery has not taken place if the Goods have not been received within 5 Business Days of the date of Samurai’ advice note or the despatch note of Samurai’s carrier advising the Customer of a date for delivery of the Goods;
6.2.2 if the Goods are not inspected on delivery, endorse the carrier’s waybill “Unexamined”, and notify Samurai and Samurai’s carrier within 2 Business Days of delivery of the Goods if there is any apparent damage, shortage or breakage.
6.3 If the Customer fails to accept delivery of any of the Goods or provision of any Services when tendered, or if delivery of the Goods or provision of the Services is delayed at the Customer's request:
6.3.1 the Goods will be deemed to have been delivered and the Services deemed to have been supplied; and
6.3.2 risk in the Goods will pass to the Customer (including for loss or damage caused by Samurai’s negligence); and
6.3.3 the Price of the Goods and/or the Services shall immediately be due and payable; and
6.3.4 Samurai may store the Goods, in which case the Customer will be liable for all related costs and expenses incurred by Samurai.
6.4 Samurai shall not be liable for any non-delivery of the Goods (even if caused by Samurai’s negligence) unless without prejudice to clause 6.3.2, written notice is given to Samurai advising Samurai that delivery has not taken place within 7 days of the date of Samurai’s advice note or the despatch note of Samurai’s carrier notifying the Customer of a date for delivery. Any liability of Samurai for non-delivery of the Goods shall be limited to one of the following options at the discretion of Samurai:
6.4.1 replacing such Goods within a reasonable time or;
6.4.2 issuing a credit note at the pro rata contract rate against any invoice raised for such Goods or
6.4.3 returning the deposit paid in accordance with clause 8.1
7 Time
7.1 Whilst Samurai will try to meet the Customer’s delivery requirements, delivery dates quoted by Samurai or set out in the Contract are target dates only. Time for delivery or performance shall not be made of the essence by notice or otherwise. If no dates are specified, delivery will be within a reasonable time.
7.2 Without prejudice to the other provisions of these Conditions, Samurai will not be liable for direct loss of profit, production, opportunity, goodwill, costs, damages, charges or expenses, and any indirect or consequential losses, caused directly or indirectly by any delay in the delivery of the Goods, nor will any delay entitle the Customer to terminate or rescind the Contract.
8 Payment
8.1 Unless otherwise specified by Samurai in the Sales Order Confirmation and subject to clause 8.6 below:
8.1.1 Payment in respect of Services shall be made within 30 days after performance of each of the Services and notified to the Customer by Samurai as having been completed.
8.1.2 Except for spare parts or consumables which are ordered or supplied as part of the Goods, payment in respect of spare parts or consumables shall be made within 30 days after delivery thereof.
8.1.3 Payment in respect of Goods (including consumables and spare parts ordered or supplied at the same time as the Goods) shall be made as follows:
8.1.3.1 A non-returnable deposit of 30% of the Price for the Goods (together with VAT thereon) shall be paid by the Customer immediately upon receipt of the Sales Order Confirmation (unless otherwise stated in the Sales Order Confirmation).
8.1.3.2 Upon the Customer being notified in writing of the Goods being available for delivery, the Customer shall pay 70% of the Price (together with VAT thereon) before the Goods are despatched by Samurai to the Customer, save where the purchase of the goods is to be financed through a third party company.
8.1.3.3 Where the purchase of the Goods is to be financed through a third party finance company, which third party finance company shall be approved by Samurai such approval shall not be unreasonably withheld or delayed, the full balance of the Price (together with VAT thereon) shall be paid prior to delivery.
8.1.3.4 Where the payment is made by the Customer, it is the Customer's responsibility to ensure their funds come from legal business activities and are in no way involved in fraudulent transactions or money laundering activities. Samurai accepts no liability if monies transferred into Samurai’s bank account are from illegitimate sources.
8.1.3.4.1 If it is later discovered that monies deposited into Samurai’s bank account are from illegitimate or fraudulent sources, Samurai will not be required to fulfil delivery of the Goods or Services, and this contract may be terminated.
8.1.3.4.2 Samurai reserves the right to repossess any of the Goods in respect of which payment is reversed, illegitimate, illegal, or fraudulent and thereafter to re-sell the same, and for this purpose the Customer hereby grants to Samurai, its agents and employees, an irrevocable licence to enter upon the Customer’s premises.
8.2 If the Customer fails to pay any amount when it is due or if the Customer has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or being a body corporate convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer or the Customer shall
cease to trade, or if the Customer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between Samurai and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer encumbers or in any way charges any of the Goods then the purchase price of all services and all goods invoiced delivered or tendered for delivery by Samurai shall become forthwith due and payable by the Customer and Samurai shall further be entitled without liability and without prejudice to its other rights to treat as cancelled this Contract and/or any other contract made between Samurai and the Customer and/or suspend the delivery of all goods or provision of all services (including the provision of remedial maintenance or warranty services under any such contract).
8.3 Time for payment shall be of the essence.
8.4 Samurai reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
8.5 All amounts due to Samurai shall be paid in full without deduction or set off unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Samurai to the Customer. All amounts payable to Samurai under the Contract shall become due immediately on its termination.
8.6 Any extension of time allowed to the Customer to pay the Price may be varied or withdrawn by Samurai at any time.
9 Title and Risk
9.1 Title to the Goods supplied by Samurai shall remain vested in Samurai until the Price and all other monies owing by the Customer to Samurai in relation to the Goods or otherwise are paid in full either in cash or in cleared funds. Until such payment, the Customer shall have possession of the Goods on a fiduciary basis as Samurai’s bailee and shall store the Goods in such a way as to enable them to be identified as the property of Samurai. Samurai reserves the right to repossess any of the Goods in respect of which payment is overdue and thereafter to re-sell the same, and for this purpose the Customer hereby grants to Samurai, its agents and employees, an irrevocable licence to enter upon the Customer’s premises.
9.2 Samurai shall be entitled to recover payment for the Goods notwithstanding that legal or beneficial ownership of the Goods has not been passed to the Customer.
9.3 The risk in the Goods shall pass to the Customer upon delivery of the Goods or upon the Goods being tendered for delivery in accordance with clause 6.3 at the Delivery Address. Until payment is made, the Customer shall keep the Goods insured against all risks for their full replacement value.
10 Tests and Installation Acceptance Certificate
10.1 The Goods will be deemed to have passed the geometric standards and tolerances described in the associated documentation delivered with the Goods, prior to delivery. If the Customer requires any additional tests to be carried out, full details must accompany the Order. If Samurai agrees to carry out such tests, Samurai shall be entitled to make an additional charge in respect of the costs incurred. Where tests are to be carried out prior to delivery the Customer shall ensure that all necessary components or materials required in connection with such tests are made available by such date as Samurai may require. Components or materials supplied by the Customer to enable the tests to be carried out must be in a condition suited to the requirements of the tests concerned.
10.2 Following delivery of the Goods and satisfactory completion of any tests referred to in clause 10.1, Samurai shall deliver to the Customer the Installation Acceptance Certificate.
10.3 In the event of any Good’s failure to comply with the Specification, the Customer shall complete the non-conformity section of the Installation Acceptance Certificate. No entry shall be made in the non-conformity section and no such written report shall be made to Samurai in relation to non-conformities which are not related to the Specification detailed in the Sales Order Confirmation. If any such matter should be inserted in any such Installation Acceptance Certificate it shall be disregarded. The Customer shall sign such certificate and return it to Samurai within 20 Business Days. Samurai shall carry out necessary remedial action in respect of matters stated and properly included in the non-conformity section of the Installation Acceptance Certificate. On completion of such remedial action the foregoing provisions of this clause shall apply again as they did on delivery. Subject to items reported within the time limited by this clause 10.3, the Goods shall be deemed free from defects and in all respects in accordance with the Specification and other requirements of the Contract except only to such extent (if any) as could not reasonably be discovered on such testing.
10.4 Without prejudice to the terms of clause 10.3 in relation to remedial action, the Goods will be deemed to have been accepted upon the earlier of:
10.4.1 the date on which the Installation Acceptance Certificate is required under clause 10.3 to be signed and returned irrespective of whether this has been done: and
10.4.2 the date on which the Customer commences to make use of the Goods without Samurai’s prior written agreement.
11 Confidential Information
