Terms and Conditions of Business

Terms and Conditions of Business
Terms and Conditions of Business
1
Definitions
In these Terms and Conditions certain phrases shall be understood
to have the following meanings:
"the Seller" means Mitutoyo (UK) Limited
"Goods" means any product, Software* and/or technology which
is to be sold (or licensed out) by the Seller.
"the Buyer" means any person, company or organisation which
buys or has agreed to buy Goods from the Seller.
"Contract" means the written agreement between the Buyer and
the Seller specifying the offer under which the Buyer agrees to buy
and the Seller agrees to sell Goods.
*Software is supplied on the basis of an End-User Licence
Agreement (EULA) where title does not pass and use is
non-transferable. In relation to all other conditions herein Software
is treated the same as purchased/sold "Goods".
2
Acceptance of order
2.1 These Terms and Conditions shall form part of every
Contract of sale of Goods entered into by the Seller and no
alteration shall be effective unless in writing, signed by
an authorised officer of the Seller and referring to these
Terms and Conditions.
2.2 The placing of an order by the Buyer, whether or not based
upon a quotation, shall not be binding on the Seller, unless
accepted by the Seller in writing.
2.3 No representations or undertakings made or given on the
Seller’s behalf prior to Contract shall be binding on the
Seller, unless incorporated expressly in writing into the
Contract.
2.4 Goods ordered by the Buyer which are out of stock will be
placed on back-order unless the Buyer shall specify Ex-stock
or Cancel the order.
2.5 The Seller shall have no obligation to accept the return of
Goods which shall be surplus to the Buyer’s requirements
or ordered in error. Any decision by the Seller to accept the
return of Goods for credit shall not affect the Buyer’s
obligation to pay the price thereof on the due date for
payment and such credit shall not exceed 90% of the price
of the Goods and shall be conditional upon the Goods and
packaging before returned without any damage or marking
within 30 days of the Seller’s invoice.
2.6 If the Buyer shall require any change in the terms, conditions
or arrangements for the performance of the Contract the
Buyer shall inform the Seller promptly and shall not
implement any change without the Seller’s written consent.
3
Specification
3.1 All specification, drawings and data contained in the Seller’s
catalogues or otherwise supplied by the Seller are
approximate only, unless otherwise stated in writing.
3.2 The Seller reserves the right without prior notice to effect
modifications and design changes and to discontinue
manufacture of any Goods as part of a continuous
programme of product development.
4
Selection/Representation
4.1 The Buyer shall be responsible for determining whether the
Goods ordered are suitable and sufficient for the intended
purpose.
4.2 The Seller shall have no liability for the failure of the Goods
to perform in accordance with specification when such
failure shall be caused by their operation in environmental
conditions that shall be unsuitable, unless the Buyer shall
have stated in its order that such environmental conditions
would apply and the Seller shall have accepted such
stipulation in writing.
4.3 The Seller shall offer support to representing buyer
Distributors in ensuring correct product specifications are
furnished to satisfy End-user invitations to tender for the
supply of Goods within its scope. However, the seller is not
obliged to support a buyer Distributor if it shall fail to
professionally present the Seller’s Goods, in all essential
features, particularly against an alternative offer and
thus give cause to place a business opportunity at risk. In
such circumstances the Seller reserves the right to facilitate
direct End-user supply.
5
Prices
5.1 Prices quoted by the Seller are based upon its prices ruling
at the date of quotation and the Seller reserves the right
to adjust its prices at the time of acceptance of order
to reflect any increase in the cost of supplying the Goods or
the publication of a new price list occurring after
quotation.
5.2 Unless otherwise stated in writing, prices quoted by the
Seller are exclusive of the cost of packaging and delivery and
VAT.
5.3 The minimum order value (excluding packaging, delivery
and VAT), shall be £75.00 nett.
5.4 The Buyer shall not be entitled to make any deduction from
the price by way of set-off or counterclaim.
6
Payment
6.1 In the absence of agreed credit terms, payment shall be
made in full in advance of delivery.
6.2 The Seller’s credit terms are payment by the end of month
following the month of invoice (tax point date).
6.3 Payment made by means of a cheque, bill or documentary
credit shall be deemed to be effected when honoured and
all costs of discounting and encashing shall be borne by the
Buyer.
6.4 Time for payment shall be of the essence of the Contract.
6.5 In the event of delay in payment the Seller shall be entitled
to charge interest at 4% per annum above Midland Bank
plc base rate, without prejudice to the Seller’s other rights.
6.6 During any such period of default and at any time when the
Seller shall have reasonable grounds for doubting that
any payment due from the Buyer will be made on the
agreed date, the Seller shall be entitled to suspend work
and withhold deliveries, without prejudice to its right to
payment for Goods delivered and work done and expenses
incurred in connection with undelivered Goods which shall
become immediately due and payable.
6.7 If such default or other circumstances shall continue for
a period of 14 days, the Seller shall be entitled to terminate
the Contract by written notice to the Buyer, without
prejudice to the Seller’s other rights.
6.8 The granting by the Seller to the Buyer of time or other
indulgence shall not prejudice or constitute a waiver of the
Seller’s rights under subclauses 6.6 and 6.7.
6.9 The Seller shall have a general lien over any Goods of the
Buyer in the Seller’s possession for all money due to it from
the Buyer. If any lien is not satisfied within 14 days of such
money becoming due, the Seller may sell the Goods as
agent for the Buyer and apply the proceeds, after deducting
the expenses of sale, towards the monies due and the
balance (if any) shall be paid to the Buyer.
7
Delivery Times
7.1 The time for delivery shall be calculated from the date of
acceptance of order by the Seller or from the date of its
receipt of all information required to fulfil the order, if
later.
7.2 The time for delivery shall not be of the essence of the
Contract.
7.3 The Seller shall be entitled to make partial deliveries and this
condition shall apply to each delivery.
7.4 The Seller shall endeavour to meet the Buyer’s delivery
requirements but shall not be liable for any loss or damage
caused by delay in delivery and the Buyer shall not be
entitled to cancel the Contract because of such delay.
8
Delivery
8.1 Unless otherwise agreed, delivery shall be effected at the
premises of the Buyer or other place specified in the
Contract for delivery and the method of carriage and choice
of carrier shall be determined by the Seller.
8.2 The minimum carriage-paid order value (excluding VAT)
shall be £150 nett for delivery in the UK mainland and £375
nett for delivery in the Republic of Ireland.
8.3 The Buyer shall be responsible for paying the Seller’s
carriage charges unless the Buyer shall make its own
arrangements with the agreement of the Seller prior to the
8.4
8.5
Seller arranging carriage. If the Goods shall be collected
by the Buyer or by a carrier pursuant to arrangements made
by the Buyer, delivery shall be deemed to take place on
collection.
Upon the Seller notifying the Buyer that the Goods are ready
for delivery, the Buyer shall agree to accept delivery. The
Buyer shall be responsible for ensuring good access to the
delivery site and providing such cranage and other assistance
for unloading as may be specified in the Contract. If the
Buyer should fail to give proper delivery instructions or to
accept delivery when tendered or to provide such access or
assistance, it shall be liable for all additional costs incurred
by the Seller.
If delivery should be delayed at the request of the Buyer the
Seller may place the Goods in store at the Buyer’s risk and
the Buyer shall pay such storage cost and other costs
incurred by the Seller as a result of such delay.
9
Installation
9.1 If the Seller shall undertake the installation of the Goods,
the Buyer shall be responsible for ensuring that all necessary
power, plant and labour and other facilities specified by the
Seller shall be available when required and that the Seller
shall be able to undertake such work, without interruption,
during normal business hours.
9.2 Upon completion of the installation the Seller shall test the
Goods. The Buyer shall be given the opportunity to attend
such tests, but such test shall not be delayed in the event of
the Buyer failing to attend.
9.3 The installation of the Goods shall be deemed to be
satisfactory unless the Buyer shall give notice of any fault
within 3 days of the testing of the Goods.
9.4 The provisions of subclauses 7.4 and 12.2 shall apply
mutatis mutandis in respect of delays or defects in
installation.
9.5 The Seller shall have no liability for redecoration or repair
arising from the siting or installation of the Goods.
10Title and Risk
10.1 Title to the Goods shall remain in the Seller until payment in
full is made by the Buyer.
10.2 The provisions of subclause 10.1 shall not prevent the Buyer
from fixing the Goods to any other product or selling the
Goods in the normal course of business but in the event of
sale to the extent of the Buyer’s indebtedness to the Seller in
respect of the Goods, the Buyer shall hold the proceeds of
sale or the right to receive the same on trust for the Seller
and shall, at the Seller’s request, either (i) place the proceeds
of sale in a separate account of the Buyer in such a way as to
be identifiable as in the beneficial ownership of the Seller, or
(ii) assign the right to receive the proceeds of sale to the
Seller.
10.3 If the Buyer shall default in payment for any Goods and at
any time when the Seller shall have reasonable grounds for
doubting that payment for the Goods will be made on due
date, the Seller, without prejudice to its other rights, may
enter any land or premises where the Goods may be, to
detach them if fixed and to recover possession of them.
10.4 The risk in the Goods shall pass to the Buyer on delivery or
placing in store in accordance with subclause 8.5
11Damage in Transit
11.1 The Seller shall have no liability in respect of Goods lost or
damaged in transit unless the Buyer or its agent notes
such loss or damage on the delivery receipt and gives notice
thereof in writing to the Seller and the carrier within 7 days
of delivery or such shorter period as may be required
by the carrier’s conditions of carriage or, in the case of the
whole consignment failing to arrive, gives notice thereof in
writing to the Seller within 7 days of receipt of the Seller’s
invoice or despatch note or the estimated date of delivery, if
later.
11.2 The Seller’s liability in respect of Goods lost or damaged in
transit shall be limited to repairing or replacing such
Goods.
Mitutoyo (UK) Ltd. West Point Business Park, Joule Road, Andover, Hampshire, SP10 3UX. Registered in England & Wales No. 1439214.
Terms and Conditions of Business (cont.)
12Warranty
12.1 Subject to Clause 3, the Seller warrants that the Goods will
comply with specification and will be of merchantable
quality but not that they shall be fit for any particular
purpose.
12.2 The Seller will repair or replace any Goods which under
proper use prove to be defective within the period of 12
months from the date of delivery due to faulty materials or
bad workmanship or, subject to Clause 3, the Seller’s failure
to supply Goods of the specification or quality ordered,
provided as follows: (i) that in the case of defects which
would have been apparent on reasonable inspection on
delivery, the Buyer shall notify the Seller of the defect in
writing within 7 days of the date of delivery; (ii) that in
the case of any other defect, the Buyer shall notify the Seller
of the defect in writing within 10 days of the date when the
defect became apparent and, in any event, within 12
months from the date of delivery; (iii) that the Buyer and
any user of the Goods shall have complied with the
instructions of the Seller or manufacturer of the Goods as
to the maintenance and operation; (iv) that the Buyer shall
give to or procure for the Seller the opportunity to inspect
and test the Goods and, if requested, shall return the Goods
to the Seller, carriage paid, such carriage charges to be
refunded by the Seller if the defect shall constitute a valid
claim under this Clause.
12.3 Subject to any statutory provision to the contrary, the liability
of the Seller under this Clause shall be in lieu of and to the
exclusion of any other condition, warranty, or other term,
whether express or implied by law, as to the quality of the
Goods or their fitness for any particular purpose or otherwise
and, subject as aforesaid, the Seller shall have no liability,
whether arising in Contract, tort or otherwise, in respect of
any defect in the Goods or any injury, damage or loss
resulting from such defect.
13Indemnity
Subject to any statutory provision to the contrary, the Seller shall
have no liability for any loss or damage suffered by any third party
caused directly or indirectly by the Goods, whether as the result of
their operation or use or otherwise and whether as the result of
any defect therein or otherwise and the Buyer shall indemnify the
Seller from any claim arising from any such loss or damage.
14Force Majeure
The Seller shall not be liable for any loss or damage sustained by
the Buyer by reason of any act of God, war, riot, fire, strike,
lock-out, governmental control or regulation, abnormal weather
conditions, accident, breakdown or any other circumstances
beyond the Seller’s control and in such event, insofar as the
Contract shall not have been performed, the Seller may either
terminate the Contract and return any advance payment received
or delay delivery for such period as may be necessary.
15Confidentiality
15.1 All drawings and other documents supplied by one party
to the other shall remain the copyright and property of
the party supplying the same and may not be copied or
reproduced without its consent and such documents shall be
returned in the event of the Contract not being made or
completed.
15.2 Any trade secret or confidential information supplied by
either party to the other shall be kept confidential and shall
not be disclosed to any third party without the consent of
the party supplying the same.
16Infringement
16.1 The Buyer shall notify the Seller immediately of any
circumstances coming to its attention which may be likely
to give rise to any claim that the Goods infringe the rights
of any third party and shall permit the Seller to conduct any
action or negotiations in respect thereof in the name of the
Buyer but at the Seller’s expense.
16.2 In the event of any such claim being successful, the Seller
shall indemnify the Buyer against any liability it may sustain
to such third party, but shall have no other liability to the
Buyer in respect thereof.
17Notices
Any notice to be given by either party to the other shall be
properly given if sent by email, fax or post to the party to be
served at its head office or last known address and shall be
deemed to have been served, in the case of postal delivery, when
in the normal course of post it would have been delivered.
18Export/Import/Movement Control/Goods and Technologies
Export: the Buyer shall inform the Seller of any Goods to be
purchased, or licensed, or technical information sought, that is
intended for export as the Terms and Conditions herein are
primarily for the UK home market. It is the responsibility of the
Buyer to declare to the Seller the intended final destination, the
end-user and nature of use of all such Goods. The Seller shall then
offer advice on its Goods known to be subject to export controls.
The Buyer is ultimately responsible for ensuring that all such
exports comply fully with the UK Export Control Act 2002 (and
subsequent amendments) as administered by the UK Department
of Business, Enterprise and Regulatory Reform (BERR) and related
EU legislation. The Seller will not entertain the service or support
of any Goods that have been exported without due evidence of
export control compliance. The Seller will report to the appropriate
authorities any known or suspected violation of export control
requirements that may come to its attention. Movement Control: the Seller has certain Goods that are classed
as "dual" purpose i.e. may be used for civil or military application.
The Buyer shall purchase the Goods on the understanding that
they are equipped with a "movement sensor" that will disable
operation should excessive vibration or movement be detected.
Resetting of the sensor may be undertaken, at no charge to the
Buyer, subject to the Seller being afforded advanced notice of the
intended move or event that may trip the sensor. In the event of
the Goods relocation, the Buyer must ensure the destination and
use shall not contravene applicable export controls.
Goods and Technologies: technology is defined in terms of
"information relating to controlled Goods or Software" and may
be transferred by various means such as drawings, emails,
manuals and instructions etc. Such transfer of technology is also
subject to export control where it is required for the development,
production or use of listed Goods or Software. Technical
assistance for repair, training or consultancy is not deemed as
technology transfer but relating documentation and "relevant
use" of the technologies may be subject to licensing. The
Buyer should therefore make the Seller aware of any intended
or consequential overseas transfer of technology in relation to
the Seller’s provision of Goods and technologies. The Buyer shall
be bound by the assurance (as per Clause 19) given to the Seller
as an integral part of these Terms and Conditions of business. This
shall cover all of the Seller’s Goods and technologies, their
permitted use and the strict adherence to export controls. The
Seller may seek additional assurances from the Buyer as the Seller
deems necessary. Import: the majority of the Seller’s Goods do not require an
export licence from the country of manufacture or an import
licence into the UK however, where such Goods do require
licensing, supply will be conditional on the Buyer’s ability to fulfil
the criterion used by the Seller, and the appropriate authorities, to
determine the ability to meet the licence conditions. This may
include the completion of detailed information relative to the
status of the Buyer, the end-user, destination of use and application
of the Goods.
The Buyer shall be bound by the assurance (as per Clause 19)
and where certain Goods do require a specific Export Licence
from the country of manufacture, the Buyer may also need to
furnish to the Seller an individual "Letter of Assurance" and "End
user" undertaking in order to satisfy licence application
requirements. Furthermore, any Buyer supplying Goods directly or
indirectly to the UK Defence Industry or to any body where use is
connected with a military application will need to satisfy
the Seller’s additional security control assessment procedures
as demanded by the Export/Import Control Authorities. This shall
include evidence detailing the status of the Buyer’s customer,
related supply approvals and details, in so far as confidentiality
will permit, of the products or services to which they are
contracted to supply. Disclosure of insufficient information to
satisfy the requirements of the licensing authorities will result in
the export licence application being declined. The Seller is unable
to accept any liability in the event of this decision.
19Assurance
The Buyer, in entering into a business transaction with the Seller
does so on the Terms and Conditions herein including this
assurance that as a Company, person or organisation, responsibility
shall be accepted for ensuring strict adherence to the Seller’s
Export/Import control compliance procedures and the UK Export
Control Act 2002 (and subsequent amendments) as well as those of
the European Union (EU). The Buyer will actively support all measures
to combat terrorism and promote global peace and harmony. The
Buyer will not use or deliver, directly or indirectly, any Goods,
Software and/or technology ("Goods") acquired from the Seller
and/or any of its affiliated or subsidiary Companies to any
customer and/or to any party that are, to the best of the Buyer’s
knowledge, involved or engaged in development, production,
utilisation, application, enhancement, or distribution of nuclear,
chemical or biological weapons, and/or transportation for such
weapons of mass destruction. Furthermore, the Buyer commits
to observing the independent embargo measures for combating
international terrorism so as to ensure that it shall not deliver,
directly or indirectly, the Goods to any party or any body listed
by the U.S "Denied Persons List", U.S "Entity List" and EU "List of
terrorists". The Buyer acknowledges that prohibitions and
restrictions concerning the combating of terrorism have to
be observed and followed. The Buyer, as a Company, person or
organisation, shall be required to immediately inform the
responsible authorities of any knowledge acquired concerning
transactions involving the Goods with Companies or individuals
mentioned in the above respective lists. The Buyer recognises
that supply of certain Goods will be subject to the completion
and verification of "end-user" and "end-use" particulars, as will
be sought by the Seller. The Buyer accepts that facts to be
provided must be to the satisfaction and acceptance of the
Seller and the Ministry of Economy, Trade and Industry, Japan
(Export Control Authority). Following installation of the Goods, the
Buyer shall notify the Seller of any subsequent change of the
Goods location or transfer of ownership. In accordance
with Article 21 of the European Community Dual-use items and
Technology Regulation 1334/2000, the Buyer is fully responsible
for seeking authorisation from the UK Department of Business
Innovation & Skills, Export Control Organisation, in the event
of the need for inter-community transfer or export from the
community of the Goods. The Buyer must notify the Seller of any
such requirements and the Seller will provide advice and relocation
assistance (including the resetting of any applied movement
sensor) when evidence of the appropriate authorisation has been
attained.
20Law
The Contract shall be governed by English law and the English
courts shall have jurisdiction to determine any dispute between
the parties in relation thereto.
Mitutoyo (UK) Ltd. West Point Business Park, Joule Road, Andover, Hampshire, SP10 3UX. Registered in England & Wales No. 1439214.
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