Terms and Conditions – General Sales and Servicing
MATSUURA MACHINERY LTD
Gee Road, Whitwick Business Park, Coalville, Leicestershire, LE67 4NH.
Company number 2592156.
GENERAL SALES AND SERVICING TERMS AND CONDITIONS (MARCH 2017)
1. APPLICATION
These Conditions shall apply to all quotations, offers, orders and contracts for the supply of
goods and services by Matsuura, except where they comprise the sale and purchase of, or hire of, a
machining centre or other machine, in which case the then current Matsuura Machine Sales Terms
and Conditions or, if a hire, the Matsuura Machine Hire Terms and Conditions, shall apply instead,
available on request.
In these terms and conditions, and any contract which incorporates them, the following words have
the following meanings: Additional Charge: Any price, charge, or other amount (excluding VAT) which
is or becomes payable under this Contract, which is not a Base Charge, including any amount
expressly stated to be an Additional Charge or to be additionally chargeable stated in these
Conditions or any other Contract Terms. Base Charges: The prices, charges and other amounts
(excluding VAT) payable for the Deliverables as stated in the Contract Terms. Charges: The
Base Charges and any Additional Charges. Conditions: These General Sales and Servicing Terms and
Conditions. Contract: The contract which incorporates these Conditions. Contract Terms: All written
documents forming part of the Contract as detailed in Condition
3. Customer, you or your: The person who has entered into the Contract with us as specified
in the Contract Terms. Customer Premises: Your premises specified in the Contract Terms where
any Deliverables are to be supplied or performed, including any specified site or Delivery
destination. Deliver and Delivery: Carriage of the Goods to the Customer Premises and unloading
at the Customer Premises, or making the Goods available for collection. Deliverables: All
equipment, goods, services, works, software and materials to be sold or supplied or actually sold
or supplied by us under the Contract, as specified in the Contract Terms, including goods and
software supplied as part of any Services. Goods: The goods forming part of the Deliverables.
Installation: Installing any Goods in a Machine, or in the case of Machine movements, moving the
Machine to its final site, connecting services, commissioning and testing that the Machine is in
operating order. Matsuura, we, us and our: Matsuura Machinery Ltd. Machine: Each CNC machining
centre or other machine equipment for or in respect of which any Deliverables are being
supplied, whether produced by us or a third party or in which any Deliverables are
Installed. Normal Working Hours: 8:45 am to 17:00 p.m. Monday to Friday (excluding public
holidays in the United Kingdom). Payments: all amounts payable by you under the Contract,
including the Charges, and any value added tax thereon. Services: Any services forming part of the
Deliverables, including any Delivery and Installation services, maintenance and repair services,
machine movement services, software development and training services. Software: Any software
applications, firmware and other computer code to be supplied or actually supplied as part of
the Deliverables, including CNC programs and G-code. Warranty: The warranties in Condition 11 and
any other applicable warranty, term or condition relating to the description, quality, standard or
condition of the Deliverables. Warranty Period: The period for the Warranty set out in Condition
11.3 or as otherwise specified in the other Contract Terms.
3. CREATION OF CONTRACT AND CONTRACT TERMS
3.1 Quotations etc.: Any quotation from us is not a legally binding offer, unless we state
otherwise in the quotation. If we give a legally binding offer, or acceptance, to you, it is for
the supply of the Deliverables on the Contract Terms. We shall be entitled to withdraw our offers
at any time before they are accepted by you. If you submit any order or acceptance to us, then
this shall be your legally binding offer and agreement to purchase the Deliverables on the
Contract Terms. 3.2 Contract Terms: The Contract Terms shall comprise the following, and each item
listed shall take precedence over those listed after it in the event of conflict: (a) these
Conditions; (b) any written contract produced by us, and signed by you and us, or otherwise
accepted by you, which formed the Contract, and any documents referred to in it; (c) any
quotation or offer issued by us, which led to the Contract, and any documents referred to in it;
(d) any acceptance or counter-offer of ours which led to the Contract, and any document referred to
in it; (e) the contents of any order or acceptance you submit to an offer of ours, which created
the Contract; and (f) the contents of any order or offer you submit, which we accept to create
the Contract, but excluding any terms incorporated by you by reference into such order or offer.
All standard terms and conditions of purchase proffered by the Customer are hereby excluded.
4. SALE AND SUPPLY
We agree to sell, supply and deliver to you and you agree to purchase, take delivery of and pay for
the Deliverables specified in the Contract Terms. With respect to any Services our obligation is to
use reasonable endeavours to provide those Services.
5. CHARGES
5.1 Obligation to Pay: You agree to pay the Charges, together with any VAT, in accordance with the
terms of the Contract. Unless otherwise stated, the Charges exclude Delivery, and Installation,
and import and export taxes, for which we may make an Additional Charge. 5.2 Unfixed Charges:
Any statement by us, including in the Contract Terms, of the amount of any Charge for any services
or other labour, is an estimate only, unless it is expressly stated to be fixed. If the Charge for
any Deliverables, or the amount of any other Charge, is not fixed, or is not stated at all, then
the Charge shall be a reasonable charge specified by us, which may at our option be calculated in
whole or in part on a time and materials basis. 5.3 Time and materials: Where any Charges are
calculated on a time and materials basis: (a) you shall pay for all services and labour provided at
our most recent standard labour rates; (b) you shall pay for all tooling, materials and other goods
supplied at our most recent list price, or if none is applicable, at cost plus our
standard mark-up; (c) you shall pay for our travel, accommodation and subsistence costs at
our most recent standard rates; and (d) we may recharge all other costs and expenses properly
incurred, such as carrier, crane hire and sub-contractor costs, at cost plus our standard
mark-up. 5.4 VAT: All Charges are exclusive of value added tax and any other applicable sales taxes, which shall
be payable in addition at the same time as the associated Charges.
6. PAYMENT TERMS
6.1 Application: Except to the extent alternative payment terms are stated in the Contract Terms,
the following terms shall apply. Invoicing: We may invoice for the Base Charges, when or at any
time after the Contract is entered into. We may, at our option, invoice for Additional Charges in
advance, or when the right to make an Additional Charge has arisen, or when any Deliverables or
other goods, work, services, cost or expense covered by the Additional Charge have been commenced,
supplied, performed or incurred. 6.2 Payment of invoices: You shall pay our invoices
immediately on receipt, unless otherwise agreed in the other Contract Terms. If the other
Contract Terms state that any Payment is due or payable at any particular time or on any particular
event (such as Delivery), then that Payment shall be paid no later than that particular time or
event. If any invoice or Payment is linked to any event or condition, and such event or
condition does not occur or is delayed due to any cause other than our breach of the Contract,
then we may invoice and you shall make such Payment on the date such event or condition would
reasonably be expected to have occurred but for such cause. 6.3 Currency, Method and Set-Off: All
Payments shall be made in pounds sterling, by BACS bank transfer to such account as we may
specify, in full without set-off, deduction, counter-claim, or withholding. 6.4 Interest: We may
charge daily interest on overdue Payments running from the due date until the date of Payment
(before as well as after judgement) at the rate of 2% per calendar month.
6.5 Suspension and Termination: We may suspend the Contract if any Payments become overdue (until
they are paid), and we may terminate the Contract if any overdue Payments are not paid by you
within 14 days of notice from us.
7. TIMESCALES
7.1 Our performance: We will use reasonable endeavours to perform the Contract and supply
the Deliverables in accordance with any dates or times stated in the Contract Terms or otherwise
within a reasonable time. All stated dates and times are estimates only and time for our
performance is not of the essence. We shall not be in breach of the Contract for any
non-performance or delay in performance unless and until you have given to us notice on or after
any applicable date or time for performance has passed and we have failed to perform within a
further 28 days following receipt of such notice. 7.2
Scheduling: At our request, you must co-operate with us to schedule all activities comprised in the
supply of the Deliverables, and agree with us a reasonable plan for this, including your
responsibilities, and where you and we cannot agree then we shall be entitled to specify the plan
based on our standard practices. You shall not unreasonably withhold or delay agreement to any
dates that we propose for performance of the Contract. You acknowledge that we book carriers,
cranes, staff and sub- contractors based on these dates, and if you re-arrange any agreed
dates, you shall pay an Additional Charge for any additional or wasted costs and expenses we may
suffer or incur as a result of such re-arrangement. Unless otherwise agreed, we are only obliged to
carry out any Services during our Normal Working Hours.
8. ASSISTANCE AND HINDRANCES
8.1 Your responsibility to assist us: You agree to co-operate with us and to provide any
labour, facilities, access to premises, assistance and information requested by us to
perform the Contract, or to provide any remedy for breach of Warranty. In particular, you
must: (a) permit us to conduct one or more surveys and risk assessments of all Customer
Premises before providing the Deliverables; (b) provide anything specified in the Contract Terms;
(c) procure that there are staff available at the Customer Premises to receive any Goods and
Services, assist our representatives, and otherwise facilitate the provision of the Services
and performance of the Contract; (d) provide sufficient, free and safe access to the Customer
Premises and sites for the Machines, including any special arrangements for access over any other
land leading to the Customer Premises; (e) provide reasonable facilities at the Customer Premises,
including any facilities we request; (f) prepare the Customer Premises, in accordance with our
requirements specified to you at any time, including any preparation work for the site for each
Machine which we may specify; (g) create and maintain suitable foundations for the Machine,
including in accordance with the Machine specifications and any other requirements we may
specify; and (8) provide and operate all electricity, water, air and other services required for
the Machines, including all cabling and pipes for such services up to the place where any Machines
are to be sited, and the isolator switches and other points of connection of the services to the
Machines. 8.2 Failure to assist us, and hindrances: If you do not provide or maintain anything
required above, or the Customer Premises and/or site for any Machine do not meet our
requirements under the Contract, or we find that any additional work, labour or equipment may be
required by us to provide the Deliverables as a result of the state or condition of the Customer
Premises and/or site for any Machine, or any unforeseen (at the date of Contract) difficulties or
hindrances arise, then: (a) we shall not be liable for any consequences of this; (b) we shall be
entitled to a reasonable extension of time for performance of this Contract; and (c) you shall
pay an Additional Charge for any resulting additional or wasted work, labour, equipment, cost
and expense we suffer or incur, including the cost of returning any Goods to our depot and
attempting further Delivery, and including all additional and wasted costs of carriers,
cranes, staff, sub-contractors and other arrangements made or which need to be made to
perform the Contract.
9. DELIVERY
9.1 Delivery: Unless otherwise stated, we will Deliver the Goods to the Customer Premises. If you
are to collect the Goods, then you must collect them within 5 days of when we inform you that
they are ready. If we are Delivering any Goods, you must notify us of non-receipt within 5 days of
receiving notice from us that the Goods have been despatched, or you shall be considered to have
received them. 9.2 Risk: All Goods shall be at your risk from Delivery. 9.3 Inspection: You must
inspect the Goods immediately following Delivery and we shall not be liable for any non-conformity,
damage, defects, shortages or losses in respect of the Goods discoverable on reasonable visual
inspection unless you notify us of the same within 2 days after the day of Delivery. 9.4
Installation: Where provided for in the other Contract Terms, we will carry out Installation of
the Goods in any machining equipment for which they are purchased. In the case of spindles, these
must only be unpacked and installed by our engineer, and so you must allow us to do this. You shall
pay an Additional Charge for Installation, unless a Charge for the same has been agreed in the
other Contract Terms. 9.5 Packaging: All packaging must be returned if we request, and in any
other case you are responsible for its disposal. 9.6 Delivery Note: You must sign any note
requested by us to acknowledge receipt or performance of any Deliverables. 9.7 Acceptance and Rejection:
Without prejudice to your rights under Condition 11, your right to reject any Deliverables will cease and you shall be
deemed to have accepted any Deliverables 2 weeks after the date they were Delivered or otherwise provided.
10. TITLE
10.1 Retention of Title: Title to the Goods shall pass to you when you have paid in full in
cleared funds all Base Charges and associated VAT payable by you under the Contract, and until that
time title (including legal and beneficial ownership) is retained by us, and we may repossess the
Goods at any time. 10.2 Action for price: In any event, we shall at all times be entitled to bring
an action for the price (including VAT) of the Goods. 10.3 Replaced Goods: Where any Goods or
parts thereof are replaced by us, we may retain the replaced Goods or parts thereof and you shall
procure that title to the replaced Goods or parts shall pass to us.
11. WARRANTY TERMS
11.1 Spindles: Where we supply any spindles, then if any separate warranty terms are specified by
us in relation to them in the Contract Terms, then such separate warranty terms shall apply and
Condition 11.2 below shall not apply. 11.2 Warranty: We warrant that, at Delivery, the Goods and
Software will: (a) correspond to their description as set out in the Contract Terms and the
specifications provided by us; and (b) be of satisfactory quality as defined in sections 14(2) to
(2C) of the Sale of Goods Act 1979, in the case of Goods sold to you, and Sections 4(2), (2A)
and (3) of the Supply of Goods and Services Act
1982 for Goods otherwise supplied to you. We warrant that all Services will be provided with
reasonable skill and care. 11.3 Warranty Periods: Unless otherwise stated in the other Contract Terms, the Warranty Periods are as
follows: The Warranty Period for any Services is 3 months from the date of completion of the
Services. The Warranty Period for any Goods or Software is 3 months from the date of
Delivery of those Goods or that Software. We shall cease to have any liability whatsoever for
with respect to the Deliverables after the end of the applicable Warranty Period. We shall not be
liable for any claim under a Warranty which is notified after the end of the applicable Warranty
Period. For the avoidance of doubt, if we provide any rectification, repair or replacement under
Warranty, such work and any item supplied as part of such work, is only warranted for the
remainder of the original Warranty Period. 11.4 Reporting: You must report any Warranty claim by
both email and a telephone call to us, otherwise you will not be considered to have notified the
Warranty claim to us. If you install the Goods, you must, as a pre-condition of any Warranty
claim, provide an independent expert's report that on the balance of probabilities the cause of
the failure claimed to be a breach of Warranty is not due to another factor, such as a problem
with another part of the Machine, or negligent installation by you. 11.5 Remedy: If we breach
any Warranty you shall give us a reasonable opportunity to provide one of the following remedies,
before exercising any other rights or remedies under this Contract or at law: (a) rectification
of the reason for the breach of Warranty; (b) replacement of the affected Deliverables; or (c) a
refund of all or part of the Charges with respect to the affected Deliverables proportionate to the
effect of the breach of Warranty on their value. We may decide which remedy to provide, and may
switch to another remedy if we are not able to provide the remedy we previously chose. We shall
not have any liability for the breach of Warranty if we are able to provide at least one of the
remedies above within a reasonable time. You must allow us to inspect any Deliverables. If we
provide a refund (in whole or part) then you shall procure that title to all Goods covered by the
refund shall pass back to us, and you shall return the Goods to us on demand. 11.6 Exclusion of
Implied Terms: All warranties, terms or conditions implied by statute, common law, custom or
otherwise as to the condition or quality of the Deliverables, or fitness for purpose of the
Deliverables, or correspondence of the Deliverables with any sample or description, are hereby
excluded, except for any terms implied by law concerning title to the Goods. 11.7 Exceptions: We
shall not be liable under any Warranty for any matter, circumstance, malfunction, fault or damage:
(a) resulting from or constituting normal deterioration or wear and tear; (b) resulting from
failure by you to operate, maintain or care for any Goods in accordance with the Contract
and any instructions or manuals provided; (c) arising when you could have taken reasonable steps
to prevent further damage; or (d) arising from any cause external to the Goods. We shall have no
obligation to replace any consumables, including oil, grease and filters, when they have been
consumed.
12. INTELLECTUAL PROPERTY AND LICENCES
12.1 Ownership: All copyrights, design rights, patents, trade-marks and other intellectual
property rights in or to any Deliverables shall be and shall remain our sole and absolute property
and that of any third party that owns such rights, and no express or implied licences are given in
relation to the same except as stated below. 12.2 Software Licence: Software is supplied on any
licence terms referred to in the Contract Terms or which are supplied with the Software. In
addition, the following licence terms apply: (a) the Software is licensed on a non-exclusive basis;
(b) the Software may only be used for Machines supplied by us; (c) where the Software is designed
to form part of a Machine, then such Software may only be used within and as part of that Machine;
(d) where any Software consists of G-code or other code to machine specific items which a user
would expect to write and edit, then we grant you a licence to use and edit such Software; and (e)
where any Software is supplied for installation on a separate computer then you may install such
Software on a single PC.
13. EXCLUSION AND LIMITATION OF LIABILITY
13.1 Liability Excluded and Limited: The following terms and conditions set out limitations and
exclusions of: (a) our liability to you under or for breach of the Contract (including any
Warranty); (b) our liability to you for or in respect of tort, negligence, or breach of statutory
duty, connected with this Contract ; (c) liability to you imposed by statute connected with this
Contract; (d) any strict liability to you connected with this Contract; (e) any liability to you
for misrepresentation (other than fraudulent misrepresentation) connected with this Contract; and
(f) any other liability we may have to you whatsoever connected with this Contract. References to:
"connected with this Contract" means under, for breach of, connected with, or arising out of or in
the course of performance of the Contract, or arising out of, connected with, or applicable in
relation to the Deliverables. References in the Contract Terms to our liability to you are to any
and all such liability as is stated in this Condition 17.1. References in the Contract Terms to a
"cause of action" means any cause of action, omission, event, incident or circumstance which
comprises or gives rise to any liability of us to you. 13.1. 13.2 Liability Not Limited: We do
not limit or exclude our liability to you: (a) for death or personal injury caused by our
negligence; (b) for fraud or fraudulent misrepresentation; or (c) to refund you any Payments in the
event of our breach of any terms implied by law concerning title to the Goods. Subject to
Conditions 9.6 and 11, we do not limit or exclude our liability to you to refund all or any part of
any Payments made (including by way of restitution) due to total failure of consideration or a
diminution in value with respect to any Deliverables.. 13.3 Excluded Types of Loss: Except for the liability referred to in Condition 13.2, we shall have no
liability to you for any of the following, including where direct or foreseeable (each of which
heads of loss is separate and severable): (a) loss of revenue, bargain, profit, anticipated
savings, contract, business, expectation, use, production, or goodwill; (b) any costs, expenses,
liabilities, or commitments suffered, incurred or entered into in reliance on the Contract; (c) any
costs of purchasing or hiring substitutes or replacements for the Deliverables; (d) any costs of
outsourcing the machining of any castings, parts or other items; (e) any wasted or additional
costs, expenses or time (including wasted management time); (f) any liability of the Customer
to any third party; (g) ex gratia payments; (h) fines and penalties; and (i) loss or damage to any
castings, parts or other items howsoever caused. Except for the liability referred to in Condition
13.2, we shall have no liability to you for any special, indirect or consequential losses. 13.4
Property Loss and Damage: Except for the liability referred to in Condition
13.2, our liability to you for the cost of repairing or replacing, or the diminution in value of,
any tangible property (other than any Machine or other Goods) stolen, lost, damaged or
destroyed, shall be limited to £1,000,000 per calendar year in aggregate for all causes of
action occurring in that calendar year. 13.5 Damage to Machine or Goods: Except for the liability
referred to in Condition 13.2, our liability for the cost of repairing or replacing, or the
diminution in value of, any Machine or Goods, stolen, lost, damaged or destroyed shall be limited
to the amount which is the lesser of (a) the cost of repair, (b) the cost of replacement, (c) the
diminution in value, (d) the Charges (if any), and (e) the then current market value, of the
affected Machine or Goods. You shall indemnify us against any liability we have to a third party
for any loss, damage or theft of any Machine or Goods. 13.6 General Limitation: This Condition
13.6 shall not apply to any liability which is covered by Condition
13.2. Any liability which is validly and effectively limited or excluded by any other Contract Term
shall not count towards the limits in this Condition 13.6. Any liability which is the subject of a
separate limit in Condition 13.4 or 13.5 shall not also be covered by the limits in this
Condition 13.6 unless such separate limit is not enforceable. Our total liability to you is
limited to 20% of the total Base Charges in each of the following cases (so that each case shall be
construed as a separate and severable limit): (a) for all causes of action in aggregate; (b) for all causes of action which are
based on at least one common fact or finding of fact, in aggregate; and (c) for each individual
cause of action. In any event, our total liability to you is limited to £10,000 in each of the
following cases (so that each case shall be construed as a separate and severable limit): (a) for
all causes of action in aggregate; (b) for all causes of action which are based on at least one
common fact or finding of fact; and (c) for each individual cause of action.13.7 Application of
caps: Each stated exclusion and limit on our liability to you shall be separate and severable, and
shall be applied independently of, and in parallel with, each other exclusion or limit, so that if
any exclusion or limit shall exclude or limit any liability to a greater extent than another, it
shall take precedence. Any stated limit on liability shall be £1,000, if this would be higher than
the amount calculated above. The figures for limits on our liability to you stated above are
stated as at the version month of these Conditions, and for a particular Contract, they shall be
the above figures increased by the percentage change in the retail prices index (all items)
published by the United Kingdom government (or its nearest equivalent if it ceases to
apply) between the index published for the version month of these Conditions, and the index
published for the month immediately prior to the month in which the Contract was made.
14. FORCE MAJEURE
We shall not be liable to you for non-performance or late performance of the Contract
due to any matter beyond our reasonable control, including (without limitation) war, threat
of war, terrorism, riot, civil commotion, public demonstration, blockade, or sabotage, the act
or direction of any government, government authority or legislature, industrial action (including
our own employees), lightning, fire, explosion, storm, flood, earthquake, accumulation of snow or
ice, or drought, shortages (including of fuel, utilities, and raw materials), vandalism, theft and
other criminal action, interruption or failure of utilities, or anything similar affecting our
carriers, sub-contractors or suppliers.
15. GENERAL
15.1 Entire Agreement: These Conditions and the other Contract Terms constitute the entire
agreement between you and us. 15.2 Confidentiality: The parties shall keep confidential all
information of the other supplied in connection with the Contract, unless such information is
or becomes lawfully in the public domain. 15.3 Assignment: You must not assign or transfer the
Contract without our prior written consent, which will not be unreasonably withheld. 15.4
Sub-Contracting: We may sub-contract our obligations under the Contract. The Contract shall not
confer any benefit on or be enforceable by any third party. 15.5 Invalid Terms: Each Contract Term
is separate and severable, and if any term is held to be void or invalid by any court, it shall be
severed, and the remaining terms shall continue in full force. 15.6 References: The words
"include" and "including" are deemed to be followed by the words "without limitation". A reference
to any legislation shall include any amendments to or replacements for the same. 15.7 Law and
Jurisdiction: The Contract shall be governed by the laws of England and Wales and the parties
submit to the exclusive jurisdiction of the courts of England and Wales.
