Terms and Conditions – Machine Sales
MATSUURA MACHINERY LTD
Gee Road, Whitwick Business Park, Coalville, Leicestershire, LE67 4NH.
Company number 2592156.
MACHINE SALES TERMS AND CONDITIONS (MARCH 2017)
1. APPLICATION
These Conditions shall apply to all quotations, offers, orders and contracts for the sale of
machines and associated goods, services, software and works by Matsuura.
2. DEFINITIONS
In these Machine Sales Terms and Conditions, and any contract which incorporates these Machine
Sales Terms and Conditions, 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 in these Conditions or any other Contract Terms. Ancillary Goods: All
tooling, equipment and other goods (not being a Machine) separately listed as part of the
Deliverables, and any Software not bespoke to the Customer. Base Charges: the prices, charges and
other amounts (excluding VAT) payable for the Deliverables as stated in the Contract Terms.
Call-Off Payment: any amount specified in the Contract Terms to be paid by you on account for
future goods, services, works, software and materials to be ordered by you. Charges: the Base
Charges and any Additional Charges. Conditions: these Machine Sales 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 below. Customer, you or your: the person who has
entered into the Contract with us as specified in the Contract Terms. Customer Premises: the
premises of the Customer specified in the Contract Terms, where any Deliverables are to be supplied
or performed, including any specified site or Delivery destination. Deliver and Delivery: the
carriage of the Goods to the Customer Premises, and unloading at the Customer Premises, but not
including Installation. Deliverables: all equipment, goods, services, works, software and materials
to be supplied, or actually supplied, by us under the Contract as specified in the Contract
Terms. Goods: the Machines and Ancillary Goods specified in the Contract Terms. Install and
Installation: Moving any Machine and Ancillary Goods to their final position at the Customer
Premises, drilling of foundation holes, connecting electrical, water and other service cabling and
pipes, installation and commissioning of the Machine, and testing that the Machine is in operating
order using our standard tests or any tests stated in the Contract Terms. Matsuura, we, us and our:
Matsuura Machinery Ltd of Gee Road, Whitwick Business Park, Coalville, Leicestershire, LE67
4NH, registered in England and Wales with company number 2592156. Machine: each machining
centre or other machine specified in the Deliverables, whether produced by us or a third party,
including CNC machining centres. 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, Call-Off Payments, and any value added tax thereon. Services:
any services or works forming part of the Deliverables, including Delivery, Installation, software
development, turnkey, 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. Uptime Guarantee: any separate guarantee given by us relating to the uptime
of any Machine, set out in a separate written document signed by both you and us. Warranty: each
warranty in Condition 13, and any other applicable warranty, term or condition relating to the description, quality,
standard or condition of the Deliverables, other than any Uptime Guarantee. Warranty Period: the
period for each Warranty set out in Condition 13.3, or as otherwise set out in the other Contract
Terms if different. Written Materials: any manuals and other documentation, for the Goods and/or
Software, that Matsuura may author, create, produce or supply as part of the Deliverables or in
connection with the Contract.
3. CREATION OF CONTRACT AND CONTRACT TERMS
3.1 Quotations, Orders and Order Acknowledgments: Any quotation from us is not a legally binding
offer, unless we state otherwise in the quotation. If you wish to proceed with a quotation, we
will normally produce a form of contract which each party must sign to create the contract,
which we usually refer to as an order acknowledgement. Our order acknowledgement or other form
of contract may be different to our quotation, and may reflect any changes since any 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, and our offers can only be accepted by you giving to us an unconditional
acceptance of them. 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: (a) these Conditions; (b) any written
document (including our order acknowledgment document) 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 Uptime Guarantee; (d) any quotation or offer issued by us, which led to the Contract, and
any documents referred to in it; (e) any acceptance or counter-offer of ours, against any order or
offer you may submit, which led to the Contract, and any document referred to in it; (f)
the contents of any unconditional order or acceptance you submit to an offer of ours, which created
the Contract; and (g) 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. Each
document listed above shall take precedence over those listed after it in the event of conflict.
All standard terms and conditions of purchase proffered by the Customer are hereby excluded. 3.3
Multiple Machines: If the Contract covers more than one Machine, then there shall be deemed to be a
separate Contract for each such Machine together with its associated Ancillary Goods, Services,
Software and Uptime Guarantee.
4. SALE AND PURCHASE
For each concluded Contract, 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 Payment Obligation: You agree to pay our Charges, and any Call-Off Payments, together with any
VAT, in accordance with the Contract Terms. 5.2 Financing: If you are obtaining any financing for
any Charges under this Contract from a third party, then you shall be and remain obliged to pay all
Charges and other Payments, but any unconditional payment we may receive from such third party on
account of any Charges and other Payments shall discharge that obligation to that extent. 5.3
Unspecified and Estimated 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. 5.4
Time and Materials Calculation: 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. 5.5 VAT: All Charges and any Call-Off
Payments are exclusive of value added tax and any other applicable sales taxes, which shall be
payable in addition at the prevailing rate from time to time, at the same time as the associated
Charges or Call-Off Payments are payable.
6. PAYMENT TERMS
6.1 Application: Except to the extent alternative payment terms are stated in the Contract Terms,
the following terms shall apply. 6.2 Invoicing: We may invoice for the Base Charges, and all
Call-Off Payments, before, 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. 6.3
Payment: 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.
6.4 Currency: All Payments shall be made in pounds sterling. 6.5 Method: All Payments shall be made
by BACS bank transfer to such account as we may specify. 6.6 No Set-Off: All Payments shall be made
in full without set- off, deduction, counter-claim, or withholding. 6.7 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. 6.8 Non-Payment: If you fail to
make any Payment on the due date then, until Payment is made, we may suspend the Contract and any
further supply of any Deliverables.
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 90 days following receipt of such notice. 7.2 Scheduling Of Work: 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 a statement of the tasks of both parties, with dates for performance of
those tasks, and you
must observe that schedule. If we and you cannot agree the schedule, then we shall be entitled to
specify the schedule based on our standard practices. Unless otherwise agreed, we are only obliged
to carry out the Contract and any Services during Normal Working Hours. 7.3 Specific Dates: When we
are ready to Deliver the Goods, carry out Installation and/or provide any other Deliverables at any
Customer Premises, then unless a specific date has otherwise been agreed, we will contact you to
agree the specific dates on which this is to take place, but in the absence of agreement we may
determine these dates. You acknowledge that we will be booking carriers, cranes, staff and
sub-contractors based on these dates. If you wish to re-arrange any date you must give us at
least 5 days prior notice, any such re-arrangement shall be subject to our agreement, and
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. 7.4 Deferral: If you defer Delivery, Installation
or provision of any Deliverables, whether with our agreement or not, then unless otherwise agreed
by us, the invoice or payment dates for any Payments which are linked to the same shall be such
dates as they would reasonably have been had such deferral not occurred, and you shall pay as an
Additional Charge all storage costs and other reasonable costs and expenses which we may suffer or
incur as a result of such deferral, including with respect to any Machines or Ancillary Goods, and
including storage with carriers or at port.
8. SITE SURVEYS, ASSISTANCE AND HINDRANCES
8.1 Site Survey and Requirements: We shall be entitled to conduct one or more surveys and risk
assessments of all Customer Premises before providing the Deliverables, and to specify to you the
requirements for preparing the sites at the Customer Premises for the Machines, which you must
comply with. We may make an Additional Charge for any additional work required on our part which
the survey identifies. 8.2 Your obligation to assist: 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)
provide anything specified in the Contract Terms; (b) 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; (c) 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, and
obtaining any consents, permissions and approvals needed to access the Customer Premises and
provide the Deliverables; (d) provide reasonable facilities at the Customer Premises, including
any facilities we request; (e) 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; (f) create and maintain suitable foundations for the Machine, including in accordance
with the Machine specifications and any other requirements we may specify; and (g) 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. 8.3 Failure to
assist us, and hindrances: For the avoidance of doubt, you must comply with the above in good
time, and in advance of anything we are to do which is dependent on your having so complied. 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
the 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 for performance of the Contract.
9. DELIVERY, INSTALLATION AND ACCEPTANCE
9.1 Delivery: We will Deliver the Machine and other Goods to the Customer Premises. 9.2 Passing of
Risk: All Goods shall be at your risk from Delivery. 9.3 Inspection: You must inspect the
Goods immediately following Delivery (or completion of Installation, if we are Installing)
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 (or completion of Installation, if we are Installing). The
provisions in Condition 13 shall apply to any claims in respect of any actual or alleged
non-conformity, damage, defects, shortages or losses. 9.4 Installation: Where provided for in the
other Contract Terms, we will carry out Installation of the Goods, which will include a visual
inspection of the Goods with you, and the carrying out of our standard tests or any tests agreed
with you under the Contract Terms. In the case of spindles, these must only be unpacked and
installed by our engineer, and so you must allow us to do this. If the Goods are shown to be in
working order and pass such test, you shall sign-off a document required by us to confirm that
Installation took place, the results of any inspections and tests, and whether any Machine
is producing parts to your reasonable satisfaction. If Installation fails for any reason, you
shall give us a reasonable opportunity to rectify the problem, and repeat Installation. You shall
not unreasonably refuse to confirm completion of Installation and acceptance of the Deliverables.
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 to us if we request, and
in any other case you are responsible for its disposal. 9.6 Delivery Note: You must sign any
Delivery or other note provided to acknowledge receipt of the Goods and performance of any
Services. 9.7 Acceptance and Rejection: Without prejudice to your rights under Condition 13
or under any Uptime Guarantee, and without prejudice to any earlier acceptance of the Goods,
your right to reject any Goods will cease and you shall be deemed to have accepted the Goods 3
months after the date of Delivery. If Installation is not successful but you start using the Goods,
then you will be deemed to have accepted the Goods and your right to reject will cease at that
point. You shall cease to have any right to terminate this Contract when your right of rejection of
the Machine has ceased above. 9.8 Training: We will provide all training specified in the Contract
Terms within a reasonable time following Delivery and Installation. Unless otherwise agreed, any
training will be provided at our premises. We will provide any further training you may require for
an Additional Charge. 9.9 Manuals: We will provide with any Machines all applicable user operating
and maintenance manuals.
10. CALL-OFF PAYMENT AND FUTURE SUPPLIES
10.1 Spend Period: Where you make a Call-Off Payment, this shall operate as a payment on account
which you may use to order further tooling or other goods from us for up to 1 year from the
Delivery of the Machine to you. If you do not order tooling or other goods to the value of your
Call-Off Payment within that period, you shall forfeit any remaining balance of the Call-Off
Payment. 10.2 No Refund: You may not ask for the Call-Off Payment to be refunded, but without
prejudice to our liability for breach of the Contract. 10.3 Future Supplies: Each future order
from you or contract with us for further tooling or other goods or services shall form a
separate contract between you and us for the sale and purchase of the tooling or other goods and
service, and shall, unless we apply any other terms, incorporate the current version of our
General Sales and Servicing Terms and Conditions at the date of your order, available on request.
11. CARE FOR MACHINES
You must (and this shall be a condition of any Warranty or Uptime Guarantee): (a) provide a
suitable environment for all Machines in accordance with our reasonable recommendations; (b)
operate all Machines in accordance with any applicable instruction manuals; (c) carry out all
activities which a user of the Machines is required to carry out, including inspection,
cleaning, oiling, adjustment and other maintenance activities (paying particular attention to
the correct grade of lubricant and lubrication intervals) as detailed in the manuals and
manufacturer instructions or otherwise specified by us; (d) maintain written dated records of
user maintenance and provide copies of these to us on request; (e) report to us promptly any
visible or apparent deterioration in the performance or condition of any Machine, including
collisions, and whether or not such collisions result in visible damage; and (f) not permit the
Machine or ancillary devices to be repaired, modified or interfered with by anyone other than us
except for routine maintenance carried out by a user as stipulated in the manufacturer’s handbook.
12. TITLE
12.1 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. Until title has
passed you shall be entitled to operate the Goods in your business and you shall keep the Goods in
your sole possession. 12.2 Action for price: Even though title has not passed we shall be entitled
to maintain an action for the price (including VAT) of the Goods under Section 49(1) of the Sale of
Goods Act 1979. 12.3 Return of the Goods: Your right to possession of any Goods in which we retain
title shall end if any Charge or associated VAT under the Contract becomes overdue or upon the
occurrence of any of the insolvency events in Condition 14.3, and in that case we shall have the
right to enter any premises where the Goods are located for the purposes of repossessing them. 12.4
Replaced Goods: Where any Goods or part 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.
13. WARRANTY TERMS
13.1 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 13.2
below shall not apply. 13.2 Warranty: We warrant that, at Delivery, the Goods and Software will (a) correspond to
the description 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 for 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, except that production and performance figures for Machines
are not guaranteed and are estimates only. We warrant that all Services will be provided with
reasonable skill and care. 13.3 Warranty Periods: Unless otherwise stated in the other Contract
Terms, the Warranty Periods are as follows: For all new Machines and their Ancillary Goods, other
than spindles, the Warranty Period is 1 year from Delivery of the Machine. For used and refurbished
Machines and their Ancillary Goods, the Warranty Period is 3 months from Delivery of the Machine.
For Services, the Warranty Period shall be 3 months from completion of those Services. For
spindles and any other Deliverables, the Warranty Period shall be 3 months from their Delivery.
If any Goods, or any parts thereof, are replaced or repaired under a Warranty, such
replacement or repair work, and anything supplied as part of such work, will be covered by the
same Warranty, but for no longer than the original Warranty Period, which Warranty Period will be
extended (with respect to any matter the subject of a claim under the Warranty) by the time taken
from the point at which the claim under the Warranty was notified to us, to the point at which the
replacement or repair under the Warranty was completed for that claim. All Warranties shall
cease to apply and we shall cease to have any liability whatsoever with respect to the
Deliverables or for any loss, damage or liability caused by the Deliverables after the end of the
applicable Warranty Period. 13.4 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. 13.5 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. 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. 13.6 Time Limits for Claims: We shall not
be liable for any claim under a Warranty which is: (a) notified to us later than 30 days after you
become or ought reasonably to have become aware of the circumstances giving rise to a claim under
the Warranty; and (b) in any event is notified to us later than 30 days after the end of the
applicable Warranty Period. 13.7 Claims Handling: You must give reasonable details of any claim
and allow us a reasonable opportunity to inspect any Deliverables. Where we are to carry out any
remedial work in relation to any Deliverables, we will normally send one representative, and you
will be expected to provide any other staff and facilities reasonably required to assist our
representative to carry out the remedial work. To remedy any breach of Warranty we shall be
entitled to take any Goods away. 13.8 Invalid Claims: Whilst any claim is being assessed and/or
disputed we may elect to remedy the alleged breach of Warranty, and we may make an Additional
Charge for any inspections, work, costs and expenses incurred by us in respect of any claimed
breach of Warranty which is invalid. 13.9 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. 13.10 Uptime Guarantee: If we give any Uptime Guarantee then
your sole rights and remedies and our sole liability under or for breach of that Uptime Guarantee
shall be as stated in that Uptime Guarantee, and any extension to a Warranty Period provided for in
that Uptime Guarantee, shall be an extension to the original Warranty Period for the applicable
Goods, but shall not be an extension of the Warranty Period for any spindle or an extension of the
period of the Uptime Guarantee itself. 13.11 Exceptions: We shall not be liable under any
Warranty or Uptime Guarantee 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; (d) arising from any cause external to any Machine or other Goods
(including interruption to any electricity or other services); or (e) where you do not contract
with us to carry out servicing of the Goods offered by us, and it would not have arisen had you
so contracted and had we provided such servicing. We shall be entitled to make an Additional
Charge for investigating, repairing or rectifying any such matter, circumstance, malfunction,
fault or damage. We shall have no obligation to replace any consumables, (including oil, grease and
filters) when they have been consumed.
14. TERMINATION
14.1 Non-Payment: We may terminate the Contract if any Payments become overdue and are not paid
by you within 14 days of notice from us. 14.2 Breach: Subject to the other terms of this Contract,
a party may terminate the Contract if the other is in material breach of the Contract and such
breach is not remedied within 30 days of notice of the breach. 14.3 Insolvency: Subject to the
other terms of this Contract, a party may terminate the Contract if: (a) the other becomes
insolvent or bankrupt, (b) the other has a receiver, administrative receiver or administrator
appointed in respect of the whole or any part of its undertaking or assets, (c) the other has any
order made or resolution passed for its winding-up or liquidation, (d) the other makes any
compromise or arrangement with its creditors, (e) any distress or execution occurs in relation to
the other's assets, or (f) the other suffers any analogous event to those in (a) to (e) in any part
of the world.
15. INTELLECTUAL PROPERTY AND LICENCES
15.1 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. 15.2
Software Licence: Where we supply any Software as part of the Deliverables then this will be
supplied on any licence terms referred to in the Contract Terms or which are supplied in
any documents accompanying the Software or which must be accepted as part of the installation of
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 programs to control a Machine
(including G-code or any other code for specific operations) 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 for use
in any Machine supplied by us; and (e) where any Software is supplied for installation on a
separate computer to remotely operate and monitor a Machine supplied by us, then you may install
such Software on a single PC and keep a back-up, and use such Software only for the purpose of
controlling a Machine. 15.3 Written Materials Licence: In relation to any Written Materials
provided by Matsuura, the Customer is granted a non-exclusive licence to use and reproduce such
Written Materials for the sole purposes of operating and maintaining any Machines supplied by us.
16. MACHINE PURCHASES
Where we are purchasing a used CNC machine from you under the Contract (whether or not a
Matsuura machine), or taking such machine in part-exchange for any Machine or Machines to be sold
under the Contract, then title to those machines (and any equipment forming part of them) shall
pass to us on the earlier of collection of that machine by us or payment by us for that machine, or
Delivery of any Machine for which it is being taken in part-exchange, and risk shall pass on
collection by us.
17. EXCLUSION AND LIMITATION OF LIABILITY
17.1 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 or Uptime Guarantee); (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. 17.2 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 9.7 and 13, 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 diminution in value with respect to any Deliverables. 17.3
Excluded Types of Loss: Except for the liability referred to in the Condition 17.2, 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 the
Condition 17.2, we shall have no liability to you for any special, indirect or consequential
losses. 17.4 Property Loss and Damage: Except for the liability referred to in the Condition
17.2, 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. 17.5 Damage to Goods: Except for the liability referred to
in the Condition 17.2, our liability for the cost of repairing or replacing, or the diminution
in value of, any Machine or other 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 for the Goods, and(e) the then current market value, of the
affected Machine or other Goods. You shall indemnify us against any liability we have to a third
party for any loss, damage or theft of any Machine or other Goods. 17.6 General Limitation:
This Condition 17.6 shall not apply to any liability which is covered by Condition 17.2. Any
liability which is validly and effectively limited or excluded by any other Contract Term shall not
count towards the limits in this Condition 17.6. Any liability which is the subject of a separate
limit in Condition 17.4 or 17.5, shall not be covered by the limits in this Condition 17.6,
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 £100,000
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. 17.7
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.
18. 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 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 of a similar nature affecting
our carriers, sub-contractors or suppliers. If the delay or non-performance continues for more than
3 months, then we or you may terminate the Contract, in which case we will repay any advance
payments received from you, but you must still pay for Deliverables actually received.
19. GENERAL
19.1 Entire agreement: The Contract Terms constitute the entire agreement between you and us.
We each agree that we have not relied on any statement or representation of the other in entering
into the Contract, but without excluding any liability for fraudulent misrepresentation. 19.2
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. 19.3 Assignment: You must not assign or transfer the Contract without our prior written
consent, which will not be unreasonably withheld. 19.4 Sub-Contracting: We may sub-contract our
obligations under the Contract. 19.5 Third Parties: The Contract shall not confer any benefit on
any third party or be enforceable by any third party. 19.6 Invalid Terms: Each of the terms of the
Contract is separate and severable. If any term is held to be void or invalid by any court, it
shall be severed from the Contract, and the remaining terms of the Contract shall continue in
full force and effect. 19.7 Notices: Notices given under the Contract shall be in writing and
be sent by hand, pre-paid first class post, fax or e-mail. Notices shall be sent to the postal or
e-mail address, or fax number of a party set out in the Contract Terms, or any alternative notified
under this Condition. A notice shall be deemed to be received: if delivered by hand, at the time of
delivery; if sent by first class post, on the second day from the day of posting; if sent by
fax, on completion of uninterrupted transmission; and if sent by email, on receipt at the mail
server of the intended recipient. 19.8 Interpretation: A reference to a person includes a
reference to an individual, partnership, LLP, company, government body, or any other entity having
separate legal personality; a reference to the singular shall include the plural and vice versa; a
reference to any gender shall include every gender; the words "include" and "including" are
deemed to be followed by the words "without limitation"; and a reference to a representative
includes any officer or employee, or any sub-contractor, and any representative of a
sub-contractor; a reference to any legislation shall include any amendments to or replacements for
the same. 19.9 Law: 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.
