Terms and Conditions - Purchasing

 

MATSUURA MACHINERY LTD

Gee Road, Whitwick Business Park, Coalville, Leicestershire, LE67 4NH. Company number 2592156.

TERMS AND CONDITIONS OF PURCHASE (AUGUST 2020)

 

1. APPLICATION

1.1 The Order constitutes an offer by the Buyer to purchase the Goods. These Conditions shall apply to the Contract to the exclusion of any other terms and conditions on which any quotation has been given to the Buyer or subject to which the Order is accepted or purported to be accepted by the Seller. No variation to the Order attached to these Conditions shall be binding unless agreed in writing by an authorised representative of the Buyer.

2. DEFINITIONS

2.1 In these terms and conditions, and any contract which incorporates them, the following words have the following meanings:

Buyer: including we, us and our; Matsuura Machinery Ltd

Conditions: the terms and conditions of purchase set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Buyer and the Seller

Contract the contract for the purchase of the Goods or Services

Deliverables: All equipment, goods, services, works, software and materials to be supplied or actually supplied by the Seller under the Contract, as specified in the Contract Terms, including goods and software supplied as part of any Services.

Delivery address: the address stated on the Order

Goods: the goods (including any instalment of the goods or any part of them) described in the Order

Installation: Installing, commissioning and testing of any Goods at the Buyer’s or any third party company’s site.

Normal Working Hours: 8:45 am to 17:00 p.m. Monday to Friday (excluding public holidays in the United Kingdom).

Order: the Buyers purchase order to which these Conditions are annexed

Price: the price of the Goods

Seller: including you and your; the person so described in the Order

Specification: includes any plans, drawings, data, processes, safety regulations or other information relating to the Goods or Services

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.

Warranty: The warranties in Condition 9 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 9.5 or as otherwise specified in the other Contract Terms.

Writing: includes email, telex, cable, facsimile transmission and comparable means of communication

2.2 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time

2.3 The headings in these Conditions are for convenience only and shall not affect the interpretation

3. SALE AND SUPPLY

3.1 We agree to purchase take delivery of and pay for the Deliverables specified in the Order and you agree to sell, supply and deliver to us the Deliverables specified in the Order. With respect to any Services your obligation is to use reasonable endeavours to provide those Services.

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) our purchase Order; (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) these Conditions; (d) any quotation or offer issued by you, which led to the Contract, and any documents referred to in it; but excluding any terms incorporated by you by reference into such order or offer. All standard terms and conditions of sale proffered by the Supplier within a quotation, catalogue, price list, order acknowledgement or any other documentation are hereby excluded.

4. PRICE OF THE GOODS OR SERVICES

4.1 The Price of the Goods shall be as stated in the Order and, unless otherwise so stated, shall be:-

- exclusive of any applicable value added tax (which shall be payable by the Buyer subject to receipt of a VAT invoice); and

- inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the Delivery Address and any duties, imposts or levies other than value added tax

4.2 No increase in the Price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without prior consent of the Buyer in Writing

4.3 The Buyer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller, whether or not shown on it’s own terms and conditions of sale

5. TIMESCALES

5.1 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.

5.2 Seller will use best endeavours to perform the Contract and supply the Deliverables in accordance with any dates or times stated in the Contract. Time for your performance is of the essence.

6. DELIVERY

6.1 The goods shall be delivered to the delivery address on the date or within the period stated in the Order, in either case during the Buyer’s usual business hours

6.2 The Buyer shall be entitled to reject any Goods delivered which are not in accordance with the Contract, and shall not be deemed to have accepted any Goods until the Buyer has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the goods has become apparent

6.3 If the Goods are not delivered on the due date then, without prejudice to any other remedy, the Buyer shall be entitled to cancel the order without liability 14 days after the due date

6.4 Installation: Where provided for in the Order, you will carry out Installation of the Goods in any site or machining equipment for which they are purchased. Buyer shall not pay an Additional Charge for Installation unless a Charge for the same has been agreed in the Order.

7. TERMS OF PAYMENT

7.1 The Seller shall be entitled to invoice the Buyer on or at any time after delivery of the Goods and each invoice shall quote the number of the Order

7.2 Unless otherwise as agreed between the Buyer and the Seller, the Buyer shall pay the Price of the Goods within 45 days after the end of the month of receipt by the Buyer of a proper invoice or, if later, after acceptance of the Goods in question by the Buyer

7.3 The Buyer reserves the right to hold back payment without detrimental effect on other deliveries if the goods are found to be faulty.

8. TITLE & RISK

8.1 Title shall pass to the Buyer, free and clear of encumbrances, upon Delivery.

8.2 Risk in loss or damage to the Goods shall pass to the Buyer upon Delivery.

9. WARRANTIES AND LIABILITIES

9.1 The Seller warrants the Buyer that the Goods will:-

- be of satisfactory quality (within the meaning of the Sale and Supply of Goods Act 1994 as amended) and fit for any purpose held out by the Seller or made known to the Seller in Writing at the time the Order is placed;

- be free from defects in design, material and workmanship

- correspond with any relevant Specification or sample; and

- comply with all statutory requirements and regulations relating to the sale of the Goods

9.2 Without prejudice to any other remedy, if any Goods or Services are not supplied or performed in accordance with the Contract, then the Buyer shall be entitled to:-

- require the Seller to repair the Goods or to supply replacement Goods in accordance with the Contract or to reperform the Services within 7 days; or

- at the Buyers sole option, and whether or not the Buyer has previously required the Seller to repair the Goods or to supply any replacement Goods, to treat the Contract as discharged by the Sellers breach and require the repayment of any part of the Price which has been paid

9.3 The Seller shall indemnify the Buyer in full against all liabilities, loss, damages, costs and expenses (including legal expenses) awarded against or paid by the Buyer as a result of or in connection with a breach of these Conditions.

9.4 The Seller warrants the Buyer that the Services will be provided with reasonable skill and care.

9.5 Warranty Periods: Unless otherwise stated in the other Contract Terms, the Warranty Periods are as follows: The Warranty Period for any Services is 12 months from the date of completion of the Services. The Warranty Period for any Goods or Software is 24 months from the date of Delivery of those Goods or that Software. For the avoidance of doubt, if you 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.

9.6 Seller represents and warrants that: (i) the Good/Services and its parts will not infringe, violate, or misappropriate any copyrights, patents, trademarks, design rights or registrations, trade secrets, confidential information or other intellectual property rights (collectively “IP Rights”); and (ii) at the Delivery Date, there are no claims being asserted and no actions pending or threatened against Seller that the Goods/Services or its parts allegedly infringe, violate or misappropriate IP Rights. Seller will promptly notify Buyer of such claims or actions.

10. INDEMNIFICATION

10.1 Supplier covenants and agrees to indemnify, protect, hold harmless and defend Buyer, its officers, directors, employees, agents from any and every liability, claim of liability, allegation, judgment, cost, expense, reasonable attorney’s fees, cause of action, loss, or damage whatsoever, including, without limitation, death or injury to any person or damage to any property, resulting from or arising from Suppliers performance under this Order, howsoever arising, including, without limitation, by reason of negligence, breach of warranty, defect in design, material, workmanship or Service, or strict liability, unless caused by the sole negligence of the Indemnified Person. In the event Buyer should bring an action for enforcement of this indemnification provision, Supplier agrees that Buyer shall be entitled to be awarded its reasonable fees and costs if Buyer prevails in such proceeding.

11. TERMINATION

11.1 The Buyer shall be entitled to cancel the Order in respect of all or part only of the Goods and Services by giving written notice to the Seller at any time prior to delivery or performance. Supplier shall be paid an amount, to be mutually agreed upon, which shall be adequate to cover the reasonable cost of Supplier's actual performance of Services under this Order to the effective date of termination, plus a reasonable profit thereon provided that no amount shall be paid to Supplier for any anticipatory profits related to Services not yet performed. If by reason of force majeure or of any labour dispute the timely completion of the Contract or the delivery of the goods is in the opinion of the Buyer rendered impractical then the Buyer shall be at liberty.

12. INSURANCE REQUIREMENTS

12.1 Seller will maintain and cause its subcontractors to maintain at their expense sufficient and customary insurance coverage with generally acceptable underwriters. Such insurance will include Interested Party clauses in connection with Seller’s performance under this contract.

13. FORCE MAJEURE

13.1 Seller shall not be liable to Buyer for non-performance or late performance of the Contract due to any matter beyond its 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 (excluding your own employees), lightning, fire, explosion, storm, flood, earthquake, accumulation of snow or ice, or drought, interruption or failure of utilities, or anything similar affecting your carriers, sub-contractors or suppliers. If the delay or non-performance continues for more than 1 month, then Buyer may terminate the Contract, in which case Seller will repay any advance payments received from Buyer, but Buyer must still pay for Deliverables actually received.

14. GENERAL

14.1 The Order is personal to the Seller and the Seller shall not assign or transfer or purport to assign or transfer to any other person any of it’s rights or sub-contract any of its obligations under the Contract unless otherwise agreed between the Buyer and the Seller

14.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice

14.3 No waiver by the Buyer of any breach of the Contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision

14.4 The Supplier undertakes that its directors, employees, agents, representatives, contractors or sub-contractors, or any other person acting on its behalf will not engage in any activity, practice or conduct which would constitute an offence under any Ethical Legislation.

14.5 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby

14.6 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.

14.7 Seller will not use Buyer’s, its parent’s, its affiliates’ or its subsidiaries’ corporate names or trademarks without Buyer’s written permission.

14.8 the Contract shall be governed by the laws of England and the Seller agree to submit to the non-exclusive jurisdiction of the English Courts.

Telephone: 01530 511 400

Head Office: Matsuura Machinery Ltd. Gee Road, Whitwick Business Park, Coalville, Leicestershire, LE67 4NH England. Company No: 02592156


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