More than 100 years committed to technical progress has made us the leading manufacturer in the fields of variable AC drives, servo drives, control technology and robotics.
General Terms and Conditions
General Terms and Conditions of Delivery and Payment
The Buyer's attention is in particular drawn to the provisions of condition 12.4.
1. INTERPRETATION
1.1 In these conditions, the following definitions apply:
Acknowledgement of Order: the Company’s order confirmation or acknowledgement to the Buyer that their Purchase Order has been received and confirmed in line with the Quotation.
Buyer: the person, firm or company who purchases the Goods from the Company.
Company: YASKAWA UK Limited (Reg. No. 1475387) whose registered address is 170 Edmund St., Birmingham, B3 2HB.
Component Parts: any products of the Company specified to be parts in the Quotation and/or Acknowledgement of Order.
Contract: any contract incorporating these terms and conditions between the Company and the Buyer for the sale and purchase of the Goods and/or Services.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
Deliverables: all documents including drafts products and materials developed, produced or manufactured by the Company or its agents, subcontractors, consultants and employees in relation to the Services in any form, including data, service manuals, certificates, Component Parts lists, reports and Specifications (including drafts).
Delivery: means delivery of Goods to the first carrier in accordance with condition 4.1 or as otherwise specified in the Acknowledgement of Order.
Delivery Date: the date for Delivery of the Goods and/or Services as specified in the Acknowledgement of Order.
Delivery Point: means the named destination as specified in the Acknowledgement of Order.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
EU Law: the law of the European Union or any member state of the European Union.
Force Majeure Event: has the meaning set out in condition 15.
Goods: any goods to be provided by the Company to the Buyer under the Contract (including Robotics and any Component Parts or parts of them) as further set out in the Acknowledgement of Order.
Incoterms 2020: the ninth edition of the International Commercial Terms as published by the International Chamber of Commerce on 1st January 2020.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of, and rights to claim priority from, such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Purchase Order: an order for Goods and/or Services placed with the Company by the Buyer by way of a Purchase Order form or as otherwise set out in the Buyer’s written acceptance of the Company’s Quotation.
Quotation: a quotation and/or a proposal issued by the Company in relation to the Goods, Services and prices requested by the Buyer.
Regulation: Regulation (EU) Nr. 833/2014 and any updates, extensions or amendments of it, that may be enacted in the European Union, from time to time.
Restricted Goods: any of the Goods that fall within Annexes XI, XX, XXXV and/or XL of the Regulation.
Russia Restrictions: any of the restrictions set out in the Regulation that are applicable to the Restricted Goods.
Robotics: any products of the Company specified to be robotics in the Quotation and/or Acknowledgement of Order.
Services: the services, including Deliverables, supplied by the Company to the Buyer under the Contract as set out in the Acknowledgement or Order together with any other services which the Company provides, or agrees in writing to provide, to the Buyer.
Specification: the description or specification for the Goods and/or Services, as set out in a Quotation and/or Purchase Order and/or Acknowledgement of Order and/or any related plans and drawings that are agreed in writing by the Buyer and the Company.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
1.2 In these conditions, the following rules apply:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its successors and permitted assigns.
1.2.3 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.2.4 Words in the singular include the plural and in the plural include the singular.
1.2.5 A reference to one gender includes a reference to the other gender.
1.2.6 Condition headings do not affect the interpretation of these conditions.
1.2.7 A reference to writing or written includes email.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3, the Contract shall be on these terms and conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any Purchase Order, confirmation of order, Specification or other document) or which are implied by law, trade custom, practice or course of dealing.
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer's Purchase Order, confirmation of order, Specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 Any variation to these terms and conditions and any representations about the Goods and/or Services shall have no effect unless expressly agreed in writing and signed by a director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company's liability for fraudulent misrepresentation.
2.4 Each Purchase Order or acceptance of a Quotation for Goods and/or Services by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods and/or Services subject to these terms and conditions.
2.5 No Purchase Order placed by the Buyer shall be deemed to be accepted by the Company until a written Acknowledgement of Order is issued by the Company or (if earlier) the Company delivers the Goods or provides the Services to the Buyer at which point the Contract will come into existence and will be subject to these terms and conditions.
2.6 The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these terms and conditions.
2.7 The Buyer shall ensure that the terms of its Purchase Order and any applicable Specification submitted by the Buyer are complete and accurate.
2.8 A Quotation is given on the basis that no Contract shall come into existence until the Company despatches an Acknowledgement of Order to the Buyer. A Quotation is only valid for a period of 30 days from its date of issue. A Quotation may be subject to change by the Company and the Company reserves the rights to withdraw a Quotation during this period.
3. DESCRIPTION
3.1 The quantity and description of the Goods and/or Services shall be as set out in the Company's Quotation and/or Acknowledgement of Order.
3.2 All samples, drawings, descriptive matter, and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
3.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3.4 The Company reserves the right (but does not assume the obligation) to make any changes in the Specification of the Goods which are required to conform with any applicable legislation or, where the Goods are to be supplied to the Buyer's Specification, which do not materially affect their quality or performance.
3.5 Any advice or recommendation given by the Company or its employees, contractors or agents to the Buyer or its employees, contractors or agents about the storage, application or use of the Goods which is not confirmed in writing by an authorised officer of the Company is followed or acted on entirely at the Buyer's own risk.
4. DELIVERY OF GOODS
4.1 Unless otherwise agreed in writing by the Company, Delivery of the Goods shall take place as follows:
(a) Robotics on either a Free Carrier (FCA) or Ex Works (EXW) basis, as such term is defined by Incoterms 2020 as specified and to such place as specified, in the Acknowledgement of Order.
(b) Component Parts from either Idstein, Germany, Torsas, Sweden or Cumbernauld, Scotland on a Carriage Paid To (CPT) basis, as such term is defined by Incoterms 2020.
4.2 Any dates or lead times specified by the Company in the Quotation and/or Acknowledgement of Order for Delivery of the Goods are intended to be approximate and time of Delivery is not of the essence.
4.3 The Company shall ensure that each Delivery of the Goods is accompanied by a delivery note that shows the date of the Purchase Order, the Company Quotation and/or Acknowledgement of Order reference number, the type and quantity of the Goods (including the code number of the Goods, where applicable) and, if the Goods are in the form of Component Parts and are being delivered by instalments, the outstanding balance of Component Parts remaining to be delivered.
4.4 Subject to the other provisions of these terms and conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the Delivery of the Goods, nor shall any delay entitle the Buyer to terminate or rescind the Contract, unless such delay exceeds 30 days.
4.5 In the event that the Company is to deliver or arrange for the installation of the Goods then the Buyer shall be responsible (at the Buyer's cost) for preparing the Delivery Point for the Delivery of the Goods and for the provision of all necessary access and facilities reasonably required to deliver and/or install the Goods. If the Company is prevented from carrying out Delivery or installation on the Delivery Date because no such preparation has been carried out, the Buyer may be liable for additional charges incurred in this regard.
4.6 If for any reason the Buyer fails to accept Delivery of any of the Goods when they are ready for Delivery, or the Company is unable to deliver the Goods by the Delivery Date because the Buyer has not provided appropriate instructions, documents, licences or authorisations then:
(a) the risk in the Goods shall pass to the Buyer;
(b) the Goods shall be deemed to have been delivered; and
(c) the Company may store the Goods until Delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.7 In the event that the Company is to deliver the Goods in accordance with 4.5, the Buyer shall provide at the Delivery Point and at its own expense adequate and appropriate equipment and manual labour for unloading the Goods including but not limited to unloading the equipment from the Delivery vehicle and transporting it to its work area, providing all heavy lifting equipment, ensuring safe operation of the equipment and correct implementation of working practices in line with the Health and Safety and Manual Handling Regulations.
4.8 If the Company delivers to the Buyer a quantity of Goods of up to 10% more or less than the quantity accepted by the Company, the Buyer shall not be entitled to object to or reject the Goods by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.9 The Company may deliver the Goods by separate instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in Delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
4.10 The Buyer shall be responsible for obtaining any import licences or permits necessary for the entry of the Goods into the Buyer’s territory or the territory where the Goods are to be delivered or any territory through which the Goods are to be transported or the territory which is the final destination of the Goods, and the Buyer shall be responsible for any and all customs and excise duties, clearance charges, taxes, brokers' fees and other amounts payable in connection with the importation and Delivery of the Goods and accordingly the Buyer warrants to the Company that it has informed the Company of all laws and regulations affecting the importation, use, installation, sale, packaging and labelling of Goods which are in force within the Buyer’s territory or any territory through which the Goods are to be transported or the territory where the Goods are to be delivered or the territory which is the final destination of the Goods or any part of it at the date of the Contract. The Buyer shall on request provide the Company with all information (and shall co-operate with the Company at all times) in relation to such licences, permits and duties.
4.11 The Company and the Buyer shall be responsible for their respective compliance with any applicable laws, statutory provisions, writs, rules, regulations and any regulatory actions and policies or industry codes, which may apply from time to time, including but not limited to the Modern Slavery Act 2015 and the Regulation.
4.12 The Buyer shall procure any permissions, licences and authorisations that are necessary to conduct its business in compliance with the applicable law, including, without limitation, all of the applicable laws mentioned in condition 4.11 above. The Buyer shall on request provide the Company with all information (and shall co-operate with the Company at all times) in relation to such compliance.
4.13 The Company hereby reserves the right to rescind the Contract and to charge to the Buyer any costs incurred by the Company in relation to the Contract if the Company's performance of its obligations under the Contract is prevented or is restricted due to:
(a) any applicable laws, writs, rules, regulations and any regulatory actions and policies; or
(b) any statutory provisions or trade regulations or trade sanctions which may be applicable to the Goods or to any of the Company’s production sites; or
(c) any statutory provisions or trade regulations or trade sanctions which may be applicable to the Buyer or to any third party appointed by the Buyer in relation to the Contract;
(d) any sanctions, regulations or restrictions imposed by the United Nations security council, any government or any other administrative body having jurisdiction over the activities of the Company, the Buyer or any third party appointed by the Buyer in relation to the Contract or in respect of any territory from or to where the Goods are to be delivered (including any territory through which the Goods are to be transported and the final destination of the Goods).
and the Company’s right of rescission under this condition shall apply whether such sanctions, regulations or restrictions are in force at the date of the Contract or come into force during the performance of the Contract. The Buyer shall on request provide the Company with all information (and shall co-operate with the Company at all times) in relation to such compliance sanctions, regulations or restrictions.
5. NON-DELIVERY
5.1 The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event.
5.2 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Buyer on completion of Delivery.
6.2 Title of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until title of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company's bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods held by the Buyer or any third party in such a way that they remain readily identifiable as the Company's property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company;
(e) make no alterations to the Goods or incorporate the Goods into any other product without the Company’s express written permission.;
(f) be entitled to resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Buyer resells the Goods before that time, it does so as principal and not as the Company’s agent and title to the Goods shall pass from the Company to the Buyer immediately before the time at which resale by the Buyer occurs;
(g) not dispose of the Goods in any way that interferes with or otherwise endangers the Company’s rights in the Goods, including, but not limited to, pledge or transfer the Goods as security.
(h) notify the Company immediately if it becomes subject to any of the events listed in condition 14.2(d) to 14.2(m);
(i) give the Company such information relating to the Goods as the Company may require from time to time;
(j) if and to the extent that the reservation of title in this condition 6 is not effective in the jurisdiction in which the Goods are located, at its own cost assign to the Company such goods or receivables of an equivalent value to the Goods to be held by the Company as security for payment of all sums due pursuant to condition 6.2.
(k) immediately inform the Company in the event of any third party action against the Goods or against any goods or receivables assigned to the Company as security and to provide the Company with all documentation necessary to initiate third-party counterclaim proceedings. The costs of any such third-party counter-claim proceedings or any action required to otherwise redress such third-party action and to replace the Goods shall be borne by the Buyer, to the extent not reimbursed by a third party.
6.4 The Buyer's right to possession of the Goods shall terminate immediately if:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(c) if the Buyer fails to make any payment to the Company on the date stated in any invoice; or
(d) the Buyer encumbers or in any way charges any of the Goods.
6.5 The Company shall be entitled to recover payment for the Goods notwithstanding that title of any of the Goods has not passed from the Company.
6.6 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
6.7 On termination of the Contract, howsoever caused, the Company's rights contained in this condition 6 shall remain in effect.
7. PROVISION OF SERVICES
7.1 The Company warrants to the Buyer that the Services will be provided using reasonable care and skill.
7.2 The Company shall use its reasonable endeavours to provide the Services and to deliver the Deliverables
to the Buyer in accordance in all material respects with the Acknowledgement of Order.
7.3 The Company shall use reasonable endeavours to meet any Delivery Dates specified in the Acknowledgement of Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
7.4 The Buyer shall:
(a) co-operate with the Company in all matters relating to the Services;
(b) provide the Company, its employees, agents, consultants and subcontractors, with access to the Buyer’s premises and other facilities as reasonably required by the Company;
(c) provide the Company, in a timely manner, such information, data or other input material as the Company may require for the performance of the Services and ensure that it is complete and accurate in all material respects;
(d) be responsible, at its own expense, for preparing and maintaining the relevant premises for the supply of the Services to include without limitation the completion of any structural work required in order for the Services to be provided;
(e) inform the Company of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Buyer's premises;
(f) ensure that all Buyer's equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and that it conforms to all relevant standards or requirements in the jurisdiction in which the Services are to be provided;
(g) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services before the Delivery Date on which the Services are to start;
(h) procure at its own cost sufficiently skilled staff and the delivery of any devices and materials required in order for the Services to be provided;
(i) provide the Company within 2 weeks of completion of the Services with written notice of the Buyer’s satisfaction with the Services (or otherwise) failing which, the Services shall be deemed to have been accepted by the Buyer to its satisfaction.
7.5 If the Company's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Buyer, its agents, subcontractors, consultants or employees, the Company shall not be liable for any costs, charges or losses sustained, whether directly or indirectly incurred by the Buyer arising from such prevention or delay and the Buyer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Buyer’s default.
7.6 The Buyer shall not, without the prior written consent of the Company, at any time from the date of the Contract to the expiry of 24 months after the last date of supply of the Services, solicit or entice away from the Company or employ (or attempt to employ) any person who is, or has been, engaged as an employee of the Company in the provision of the Services.
7.7 Any consent given by the Company in accordance with condition 7.6 shall be subject to the Buyer paying to the Company a sum equivalent to 50% of the then current annual remuneration of the Company's employee, consultant or subcontractor or, if higher, 50% of the annual remuneration to be paid by the Buyer to that employee, consultant or subcontractor.
8. PRICE
8.1 Unless otherwise agreed by the Company in writing, the price for the Goods and/or Services shall be the price set out in the Company's Quotation and/or Acknowledgement of Order.
8.2 Where Services are provided on a time and materials basis:
(a) the charges payable for the Services shall be calculated in accordance with the Company's standard daily fee rates, as set out in the Quotation and/or Acknowledgement of Order and as amended from time to time in accordance with condition 8.3;
(b) the Company's standard daily fee rates for each individual service engineer are calculated on the basis of an eight-hour day, worked between 8.00 am and 5.00 pm on weekdays (excluding public holidays);
(c) the Company shall be entitled to charge an overtime rate of 50% of the standard daily fee rate on a pro-rata basis for each part day or for any time worked by individual service engineers whom it engages on the Services outside the hours referred to in condition 8.2(b);
8.3 The Company reserves the right, by giving notice to the Buyer at any time before Delivery, to increase the price of such of the Goods as has not been delivered to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (including, but not limited to, any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in Delivery Dates, quantities or Specifications for the Goods which are requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instructions.
8.4 In relation to Services, the parties agree that the Company may review and increase its standard daily fee rates, provided that such charges cannot be increased more than once in any 12 month period. If such increase is not acceptable to the Buyer, it may, within 30 days of such increase terminate the Contract, without limiting its other rights or remedies by giving 2 months written notice to the Company.
8.5 The price for the Goods and/or Services shall be exclusive of any value added tax (VAT) which the Buyer shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice and shall be exclusive of all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which shall be payable by the Buyer. The Company shall invoice the Buyer on or at any time following receipt of the Purchase Order.
9. PAYMENT
9.1 Subject to condition 9.4, payment of the price for the Goods and/or Services will be payable in GBP (Pounds Sterling) in accordance with terms as stated in the Quotation, whether or not Delivery has taken place or title in the Goods has passed to the Buyer.
9.2 Time for payment shall be of the essence.
9.3 No payment shall be deemed to have been received until the Company has received in full and in cleared funds to a bank account nominated in writing by the Company.
9.4 All payments payable to the Company under the Contract shall become due immediately on its termination notwithstanding any other provision of the Contract.
9.5 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, but at 4% a year for any period when that base rate is below 0%, whether before or after any judgment.
9.7 The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
10. QUALITY
10.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
10.2 The Company warrants to the Buyer that the Goods are free from defects of workmanship and materials. The Company undertakes, subject to the remainder of this condition 10 at its option, to repair or replace Goods (excluding consumable items) which is found to be defective as a result of faulty materials or workmanship within 12 months of Delivery or such other period as shall be set out in writing in the Quotation and/or Acknowledgement of Order.
10.3 The Company shall not be liable for a breach of any of the warranties in condition 10.2 unless:
(a) the Buyer gives written notice of the defect to the Company during the warranty period within 30 days of the time when the Buyer discovers or ought to have discovered that some or all of the Goods do not comply with the warranty; and
(b) the Company is given a reasonable opportunity after receiving the notice referred to in 10.3(a) of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company's cost for the examination to take place there.
10.4 The Company shall not be liable for a breach of any of the warranties referred to in condition 10.2 if:
(a) the Buyer makes any further use of such Goods after giving such notice as specified in 10.3(a); or
(b) the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods (including without limitation any instructions from the Company relating to product safety) or (if there are none) good trade practice; or
(c) the defect arises as a result of the Company following any drawing, design or Specification supplied by the Buyer; or
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal storage or working conditions; or
(e) the Buyer alters or repairs such Goods without the written consent of the Company; or
(f) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
10.5 Subject to condition 10.2 and condition 10.4, if any of the Goods do not conform with any of the warranties referred to in condition 10.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate.
10.6 If the Company complies with condition 10.5 it shall have no further liability to the Buyer for a breach of any of the warranties in condition 10.2 in respect of such Goods.
10.7 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 12 month period (or such other warranty period as shall be set out in the Quotation).
10.8 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
10.9 The EU has recently enacted the Regulation, which is applicable to companies based in all EU member states, and accordingly:
(a) the Company is subject to the Russia Restrictions and under an obligation to apply the Russia Restrictions to its customers;
(b) the Buyer shall not:
i. cause the Company to contravene the Regulation in any way;
ii. cause the Company to be in breach of the Russia Restrictions;
iii. cause the Company to contravene any legislation that is enacted by the United Kingdom at any time, that is in any way similar to the Regulation, and/or introduces into the law of the United Kingdom, any restrictions that are in any way similar to the Russia Restrictions; or
iv. export any of the Restricted Goods to a Russian company or entity, or a company or entity that is based in Russia (Russian Entity), or for onward sale to such a Russian Entity.
11. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
11.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Company.
11.2 Subject to condition 11.3, the Company licenses all such rights to the Buyer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Buyer to make reasonable use of the Deliverables and the Services pursuant to the Contract. If the Contract terminates, this licence shall automatically terminate.
11.3 The Buyer acknowledges that, where the Company does not own any pre-existing materials, the Buyer's use of rights in pre-existing materials is conditional on the Company obtaining a written licence (or sub-licence) from the relevant licensor(s)on such terms as will entitle the Company to license such rights to the Buyer.
11.4 The Buyer shall keep in strict confidence all confidential or proprietary information (however recorded or preserved) that is disclosed or made available (in any form or by any method), including technical or commercial know-how, Specifications, inventions, processes or initiatives, all trade and business secrets and any other information which is of a confidential nature concerning the Company's business or its products (Confidential Information) that is disclosed to the Buyer by the Company, or its officers, employees, agents, professional advisers, consultants or subcontractors (Representatives) and shall not disclose such Confidential Information to third parties. This duty of confidentiality shall remain in force for a period of five years after the expiry of the Contract.
11.5 The Buyer may disclose Confidential Information only:
(a) to its Representatives who need to know such information for the purposes of carrying out the Buyer's obligations under the Contract; and
(b) as may be required by law, court order or any governmental or regulatory authority.
11.6 The Buyer shall ensure that its Representatives to whom it discloses such information comply with this Clause 11.
11.7 The Buyer shall not use any such information for any purpose other than to perform its obligations under the Contract.
11.8 All materials, equipment and tools, drawings, Specifications and data supplied by the Company to the Buyer (including pre-existing materials and the Company's equipment) shall, at all times, be and remain the exclusive property of the Company and shall be held by the Buyer in safe custody at its own risk and maintained and kept in good condition by the Buyer until returned to the Company, and shall not be disposed of or used other than in accordance with the Company's written instructions or authorisation.
11.9 To the extent that Goods supplied under the Contract are to be manufactured in accordance with a Specification supplied by the Buyer, the Buyer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the Specification.
11.10 This condition 11 shall survive termination of the Contract.
12. LIMITATION OF LIABILITY
12.1 As far as the Company is aware, and to the best of its knowledge, the manufacturer of the Goods has obtained appropriate product liability insurance.
12.2 Subject to conditions 4, 5 and 10, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of the Contract;
(b) any use made by the Buyer of the Goods or the Services, the Deliverables or any part of them; and
(c) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(d) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
12.3 Subject to condition 12.4 below, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.4 Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company's negligence or the negligence of its employees, agents or subcontractors (as applicable); or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(e) for fraud or fraudulent misrepresentation.
12.5 Subject to condition 12.2 and condition 12.3:
(a) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total price paid by the Buyer for Goods and/or Services under the Contract; and
(b) the Company shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
13. ASSIGNMENT
13.1 The Company may assign the Contract or any part of it to any person, firm or company.
13.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
14. SUSPENSION AND TERMINATION
14.1 If the Buyer becomes subject to any of the events listed in condition 6.4, or the Company reasonably believes that the Buyer is about to become subject to any of them and notifies the Buyer accordingly, then, without limiting any other right or remedy available to the Company, the Company may cancel or suspend all further deliveries of Goods or the provision of Services under the Contract or under any other contract between the Company and the Buyer without incurring any liability to the Buyer, and all outstanding sums in respect of Goods and/or Services delivered to the Buyer shall become immediately due and payable by the Buyer.
14.2 Without prejudice to any other rights or remedies which the Company may have, the Company may terminate the Contract without liability to the Buyer immediately on giving notice to the other if:
(a) the Buyer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b) the Buyer commits an irremediable breach of any of the terms of the Contract, and for the avoidance of doubt, a breach of any of the provisions set out in condition 10.9 above will, without limitation, be considered to be an irremediable breach of the Contract; or
(c) the Buyer commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified in writing of the breach; or
(d) the Buyer repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
(e) the Buyer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
(f) the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(g) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Buyer other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
(h) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Buyer; or
(i) a floating charge holder over the assets of the Buyer has become entitled to appoint or has appointed an administrative receiver; or
(j) a person becomes entitled to appoint a receiver over the assets of the Buyer or a receiver is appointed over the assets of the Buyer; or
(k) a creditor or encumbrancer of the Buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(l) any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 14.2(d) to condition 14.2(j) (inclusive); or
(m) the Buyer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(n) there is a change of control of the Buyer (as defined in section 574 of the Capital Allowances Act 2001).
14.3 On termination of the Contract for any reason:
(a) the Buyer shall immediately pay to the Company all of the Buyer's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;
(b) the Buyer shall, within a reasonable time, return all of the Company's equipment, pre-existing materials and Deliverables. If the Buyer fails to do so, then the Company may enter the Buyer's premises and take possession of them. Until they have been returned or repossessed, the Buyer shall be solely responsible for their safe keeping; and
(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
14.4 On termination of the Contract howsoever arising, the following conditions shall survive and continue in full force and effect:
(a) condition 6 (Title and Risk) ;
(b) condition 9 (Payment);
(c) condition 11 (Intellectual Property and Confidentiality);
(d) condition 12 (Limitation of Liability);
(e) condition 16 (Data Protection); and
(f) condition 17 (General).
15. FORCE MAJEURE
The Company reserves the right to defer the Delivery Date or provision of the Services or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, pandemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
16. DATA PROTECTION
16.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This condition 16.1 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
16.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Buyer is the Controller and the Company is the Processor.
16.3 Without prejudice to the generality of condition 16.1, the Buyer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Company and/or lawful collection of the Personal Data by the Company on behalf of the Buyer for the duration and purposes of the Contract.
16.4 Without prejudice to the generality of condition 16.1, the Company shall, in relation to any Personal Data processed in connection with the performance by the Company of its obligations under the Contract:
(a) process that Personal Data only on the documented written instructions of the Buyer as provided to the Company from time to time, unless the Company is required by Domestic Law to otherwise process that Personal Data. Where the Company is relying on Domestic Law as the basis for processing Personal Data, the Company shall promptly notify the Buyer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Company from so notifying the Buyer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Buyer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the UK unless the prior written consent of the Buyer has been obtained and the following conditions are fulfilled:
i. the Buyer or the Company has provided appropriate safeguards in relation to the transfer;
ii. the Data Subject has enforceable rights and effective legal remedies;
iii. the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
iv. the Company complies with reasonable instructions notified to it in advance by the Buyer with respect to the processing of the Personal Data;
(e) assist the Buyer, at the Buyer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Buyer without undue delay on becoming aware of a Personal Data Breach;
(g) at the written direction of the Buyer, delete or return Personal Data and copies thereof to the Buyer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this condition 16.
16.5 The Buyer consents to the Company appointing third-party processors (as the Company may see fit) of Personal Data under the Contract. The Buyer confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party's standard terms of business and in either case which the Company undertakes reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Buyer and the Company, the Company shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this condition 16.5.
16.6 The Company may, at any time on not less than 30 days' notice, revise this condition 16 by replacing it with any applicable controller to processor standard clauses or similar terms adopted by the Information Commissioner or forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
17. GENERAL
17.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
17.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
17.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
17.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
17.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
18. COMMUNICATIONS
18.1 All communications between the parties about the Contract shall be in writing and delivered by email, hand or sent by pre-paid first class post:
(a) (in case of communications to the Company) by email to YUK-Administration@yaskawa.eu.com and either by hand or post to its registered office or such changed address as shall be notified to the Buyer by the Company; or
(b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
18.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) If sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this condition 18.2(c) business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
18.3 Communications addressed to the Company shall be marked for the attention of the company director.
18.4 This condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
19. GOVERNING LAW AND JURISDICTION
19.1 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
19.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non- contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
March 2024