Customer Terms & Conditions
For all UK customers
Interpretation.
1. Definitions
“Company” means Axyz Automation (UK) Limited (Company Number 3263276) whose registered office is at Telford 54 Business Park, Nedge Hill, Telford, Shropshire, TF3 3AL
“Conditions” means these terms and conditions set out in clause 1 to clause 15 (inclusive).
“Contract” means the contract between the Company and the Customer for the sale and purchase of the Goods in accordance with the Purchase Contract Quotation, the Schedules and these Conditions.
“Customer” means the person, firm or company to whom this purchase contract is addressed.
“Delivery Date” means the date specified for delivery in the Purchase Contract Quotation.
“Delivery Location” means the address for delivery of the Goods, as set out in the Contract Details.
“Deposit” has the meaning given to it in clause 2.4 .
“Force Majeure Event” events, circumstances or causes beyond a party’s reasonable control.
“Goods” means the goods (or any part of them), as set out in the Purchase Contract Quotation.
“Intellectual Property Rights” means all patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, 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.
“Manufacturer Warranty” has the meaning given to it in clause 8.4.
“Normal Business Hours” means 9.00 am to 5.00 pm local UK time, each Business Day.
“Order” means the Customer’s order for the Goods, as set out in the Purchase Contract Quotation.
“Price” the price for the Goods, as set out in the Purchase Contract Quotation.
“Specification” the specification for the Goods, including any related plans and drawings that are agreed by the Customer and the Company as set out in the Purchase Contract Quotation.
“VAT” means value added tax or any equivalent tax chargeable in the UK or elsewhere.
“Warranty Period” means the warranty period specified in the Purchase Contract Quotation.
1.2. Interpretation
1.2.1. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
1.2.2. Any phrase introduced by the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3. A reference to writing or written includes emails but not fax.
2. Basis of contract
2.1. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete, accurate and detailed in the Purchase Contract Quotation.
2.3. The Order shall only be deemed to be accepted when the Company issues a Deposit Invoice and/or a written Customer acceptance of the Order, at which point the Contract shall come into existence.
2.4. The amount stated on the Deposit Invoice (Deposit) shall be a payment on account of the Price. The Deposit is non-refundable.
2.5. An accepted Order may only be cancelled or varied with the Company’s consent in writing. The giving of such consent shall not in any way prejudice the Company’s right to recover from the Customer full compensation for any loss or expense arising from such cancellation or variation.
2.6. A quotation for the Goods given by the Company shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3. Goods
3.1. Any samples, drawings, descriptive matter or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues, brochures or on its website are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
3.2. To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer 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 costs (calculated on a full indemnity basis) 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. This clause 3.2 shall survive termination of the Contract.
3.3. The Company reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4. Price and deposit
4.1. The Price for the Goods shall be the price specified in the Purchase Contract Quotation and is to be paid in the same currency as shown in the Purchase Contract Quotation.
4.2. The Price includes delivery within mainland UK, Northern Ireland and the Irish Republic only.
4.3. The Price excludes:
4.3.1. the costs of packaging, insurance and transport of the Goods outside of the UK and the Irish Republic, which shall be invoiced to the Customer in addition to the Price; and
4.3.2. amounts in respect of VAT, which the Customer shall additionally be liable to pay to the Company at the prevailing rate (if applicable), subject to the receipt of a valid VAT invoice.
4.4. The Company may invoice the Customer for the price of Goods plus VAT at the prevailing rate (if applicable) on or at any time after the Company has informed the Customer it is ready and willing to deliver the Goods. The Company shall ensure that the invoice includes the date of the Order, the invoice number, the Customer’s order number, the Company’s VAT registration number, and any supporting documentation that the Customer may reasonably require.
4.5. The Customer shall pay invoices in full in cleared funds immediately on or before the due date for payment as stated on the invoice. Payment shall be made to the bank account nominated in writing by the Company.
4.6. If the Customer fails to make any payment due to the Company under the Contract by the due date for payment, then, without limiting the Company’s remedies under clause 13:
4.6.1. the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
4.6.2. the Company may suspend delivery of the Goods (and all further deliveries of any goods) until payment has been made in full.
4.7. All amounts due under this agreement from the Customer to the Company 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). The Company may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by the Company to the Customer.
4.8. The Customer shall, on the date of this agreement, pay the Deposit to the Company. The Company shall apply the Deposit against the Price (or shall be entitled to apply the Deposit against any other amount due) . If the Customer cancels the Order, the Company shall be entitled to retain the Deposit
5. Delivery and installation
5.1. Prior to and during delivery, the Customer shall at all times comply with AXYZ pre-installation instructions.
5.2. The Company shall use reasonable endeavours to deliver the Goods to the Delivery Location on the relevant Delivery Date.
5.3. Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
5.4. Delivery Dates are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of any Goods that is caused by:
5.4.1. a Force Majeure Event; or
5.4.2. the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions or reasonable requests of the Company that are relevant to the supply of the Goods.
5.5. The Company will make reasonable efforts to meet agreed-upon shipping dates indicated in the Purchase Contract Quotation; however, such dates are approximate only (and time shall not be of the essence). Failure to meet the agreed-upon shipping date will not entitle Customer to cancel this Order or to damages of any kind. Changes in the shipping date by Customer may, at Company’s discretion, result in an increase in the purchase price. The Company shall have no liability for any failure to deliver Goods to the extent that such failure is caused by:
5.5.1. a Force Majeure Event; or
5.5.2. the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods;
5.5.3. the Customer’s failure to pay the Price on the due date for payment.
5.6. If five (5) Business Days after the day on which the Company attempted to make delivery of Goods the Customer has not taken delivery of those Goods, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods, or charge the Customer for any shortfall below the price of the Goods.
5.7. Where the Company agreed to install the Goods, the Customer shall provide all necessary facilities at its expense including all necessary labour, storage, access to the installation site, proper foundations for the equipment, adequate crane or lifting equipment and suitable protection for the Goods. The Customer shall procure that a duly authorised representative of the Customer shall be present at the installation of the Goods. Acceptance by such representative of installation shall constitute conclusive evidence that the Customer has examined the Goods and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection). If required by the Company, the Customer’s duly authorised representative shall sign a receipt confirming such acceptance.
6. Title and risk
6.1. Risk in Goods shall pass to the Customer on completion of unloading the Goods at the Delivery Location.
6.2. Title to Goods shall only pass to the Customer once the Company receives payment in full (in cash or cleared funds) for them.
6.3. Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
6.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.4. notify the Company immediately if it becomes subject to any of the events listed in clause 13.1.2 to 13.1.4 (inclusive); and
6.3.5 give the Company such information as the Company may reasonably require from time to time relating to:
(a) the Goods; and
(b) the ongoing financial position of the Customer.
6.4. The Company may recover Goods in which title has not passed to the Customer. The Customer irrevocably licenses the Company, its officers, employees and agents, to enter any premises of the Customer (including with vehicles), in order to satisfy itself that the Customer is complying with the obligations in clause 6.3, and to recover any Goods in which property has not passed to the Customer.
6.5. The Company may at any time after delivery elect to transfer title in the Goods to the Customer, in which case the Customer shall immediately pay the Price to the Seller.
6.6. The Customer shall ensure that the Goods are used only for the purposes for which it is designed and operated in a proper manner by trained competent staff in accordance with any operating instructions and in accordance with all applicable legal requirements.
7. Warranties.
7.1. The Company warrants that, for the duration of the Warranty Period, the Goods shall be covered by the Company’s warranty, as set out in Schedule 1.
7.2. Subject to clause 7.3, if:
7.2.1 the Customer gives notice in writing to the Company during the warranty period, within 5 Business Days of discovery that some or all of the Goods do not comply with the warranties set out in Schedule 1;
7.2.2. the Company is given a reasonable opportunity of examining such Goods; and
7.2.3. the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Customer’s cost,
the Company shall, at its option, repair or replace any Goods that are found to be defective, or refund the price of such defective Goods in full.
7.3. The Company shall not be liable for Goods’ failure to comply with the warranties set out in Schedule 1 if:
7.3.1. the Customer makes any further use of such Goods after giving notice of defects in accordance with clause 7.2
7.3.2. the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
7.3.3. the defect arises as a result of the Company following any drawing, design or Specification supplied by the Customer;
7.3.4. the Customer alters or repairs such Goods without the written consent of the Company;
7.3.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
7.3.6. the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.4. The Company’s only liability to the Customer if the Goods fail to comply with the warranties set out in Schedule 1 is as set out in this clause 7.
7.5. 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.
7.6. The terms of the Contract shall apply to any repaired or replacement Goods supplied by the Company.
8. Manufacturer’s warranties
8.1. To the extent that the benefit of any warranties made by the manufacturer (Manufacturer Warranties) of the Goods to the Company can be assigned to the Customer, the Company shall, if requested by the Customer and at the cost of the Customer, assign them to the Customer.
8.2. Until such assignment, the Company will co-operate with the Customer in any reasonable arrangements to provide the Customer with the benefit of the Manufacturer Warranties or like conditions including enforcement at the cost of and for the benefit of the Customer.
9. Training and support
9.1. Where applicable, the Company shall provide training (which may be remote) at a time mutually convenient to the Customer and the Company, in accordance with the Purchase Contract Quotation.
9.2. During the warranty period, the Company will provide the Customer with its standard customer support services during Normal Business Hours in accordance with the Company’s Support Services Policy in effect at the time the Goods are ordered. The Company may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Company’s then current rates.
10. Responsibility for Compliance with Safe Use Requirements The Company may provide to the Customer, and may update from time to time, requirements, specifications and recommendations relating to the safe installation, configuration, use and maintenance of certain Goods (collectively, “Safe Use Requirements”). Except to the extent Safe Use Requirements services are performed by the Company as part of the services being provided pursuant to the Purchase Contract Quotation, the Customer shall at all times comply with the Safe Use Requirements. Should the Customer have any questions about any Safe Use Requirements, the Customer shall promptly direct them to the Company.
11. Limitation of Liability
11.1. Nothing in this Contract shall limit or exclude the Company’s liability for:
11.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
11.1.2. fraud or fraudulent misrepresentation;
11.1.3. breach of the terms implied by section 13 of the Sale of Goods Act 1979;
11.1.4. defective products under the Consumer Protection Act 1987; or
11.1.5. any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
11.2. Subject to clause 11.1:
11.2.1. the Company shall not be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
11.2.2. the Company’s total liability to the Customer for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall not exceed the total sums paid and/or payable by the Customer for Goods under the Contract.
12. Assignment.
The Contract is not assignable by the Customer without the written consent of the Company and is between the Company and the Customer as principal but the Company may without consent (but without reducing its obligations under the contract) assign or sub-contract all or any of its rights and obligations hereunder.
13. Termination.
13.1. Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Customer if:
13.1.1. the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing to do so;
13.1.2. the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
13.1.3. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
13.1.4. the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
13.2. Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Customer and the Company if the Customer becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.4, or the Company reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
13.3. Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
13.4. On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt.
13.5. Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
13.6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
14. Force majeure
The Company shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed.
15. General.
15.1. Notice.
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 the notice.
15.2. Entire agreement.
15.2.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.2.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
15.3. Variation.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.4. Waiver.
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.5. Severance.
If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable in whole or in part, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
15.6. Third party rights.
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
15.7. Governing law.
The contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the laws of England and Wales.
15.8. Jurisdiction
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 the Contract or its subject matter or formation.
16. Documentation/Patents.
16.1. All copyright and documentation, including but not limited to catalogs, manuals and all engineering data (design information, wiring diagrams, shop drawings etc.), used in the performance of this Contract or provided to the Customer will remain the Company’s property, and may not be duplicated or reproduced or made available to third parties without the Company’s prior written consent.
16.2. The Customer acknowledges that all Intellectual Property Rights used or subsisting in the Goods are and shall remain the sole property of the Company or (as the case may be) third party rights owner. The Customer shall not at any time make any unauthorised use of the Intellectual Property Rights in and relating to the Goods, nor authorise or permit any of its agents or contractors or any other person to do so.
16.3. The sale of the Goods does not grant to the Customer any right or license of any kind under any patent owned or controlled by the Company or under which the Company is licensed, but the foregoing will not limit in any way the right of the Customer to use and sell the Goods. In the event a machine is resold, some software licenses may be subject to transfer fees payable to the Company.
16.4. Nothing contained in these conditions shall be construed as an assignment of any Intellectual Property Rights.
16.5. If the Company manufactures the Goods, or applies any process to it, in accordance with a specification submitted or prepared by the Customer or any other information provided by the Customer, the Customer shall indemnify and keep indemnified the Company against all losses, damages, costs, claims, demands, liabilities and expenses (including consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) awarded against or incurred by the Company in connection with, or paid or agreed to be paid by the Company in settlement of, any claim for infringement of any third party Intellectual Property Rights which results from the Company’s use of the Customer’s specification or such other information. The indemnity shall apply whether or not the Customer has been negligent or at fault and does not limit any further compensation rights of the Company.
Schedule 1 – Warranty
1. The Company warrants that the Goods will conform, in all material respects, with the specifications set out in the Company’s then-current standard documentation or proposal and will be free from material defects for the duration of the Warranty Period. The Company does not warrant uninterrupted or error-free operation of the Goods.
2. As the Customer’s sole and exclusive remedy and the Company’s sole and exclusive liability for breach of warranty, the Company will at its sole option and expense (except for travel expenses for technical visits to Customer’s premises, which, if required, are payable by the Company), either repair or replace the defective Goods.
3. Any parts replaced by the Company or returned to the Company for replacement become the property of the Company and the replacement part becomes the property of the Customer. The replacement part may not be new but will be in good working order and functionally equivalent to the part replaced. Repaired or replacement parts are warranted by the Company for the remainder of the Warranty Period.
4. The Company’s warranty covers non-wear parts only, and does not apply to consumables (such as (without limitation) cutters, collets, filters, sensors, lights, fuses, etc.) nor to any components, party’s or equipment provided by other manufacturers (which are covered by the respective manufacturers’ warranty).
5. There is no warranty on used equipment which is sold as seen.
6. The Company may charge (and the Customer shall pay) for returned parts or service requests relating to defects that are not covered by the warranty. Repairs, modification, disassembly, or re-work to the Goods without the Company’s written consent, or any substitution of the Company’s parts or use of parts that are nor manufactured by the Company or specifically approved by the Company, will void this warranty.
For Rest of the World (Except UK)
TERMS AND CONDITIONS OF SALE
For purposes of these terms and conditions of sale (“Terms”), “Seller” means the AXYZ International Inc. or entity named on the face of the attached proposal, quotation or invoice (the “Order Document”), and “Buyer” means the customer indicated on the Order Document. The Order Document along with these Terms (collectively, this “Agreement”) constitutes Seller’s offer to sell the goods identified in the Order Document (the “Goods”) in accordance with these Terms.
1.Conditional Acceptance. All purchase orders received by Seller are subject to acceptance or rejection by Seller. Seller will not be liable to Buyer unless Seller accepts such purchase order in writing, and such acceptance will be conditional upon Buyer’s acceptance of this Agreement. Acceptance by Buyer of this Agreement (orally or in writing), Buyer’s acceptance of the Goods, or Buyer’s acceptance of the Order Document, will evidence Buyer’s agreement to be bound by these Terms, notwithstanding the terms set forth in Buyer’s purchase order or any other document. BUYER UNDERSTANDS AND AGREES THAT THIS AGREEMENT WILL SUPERSEDE AND EXCLUDE, IN THEIR ENTIRETY, ANY TERMS CONTAINED ON BUYER’S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER.
2. Prices and Payment Terms. Buyer agrees to pay to Seller the purchase price set out in the Order Document. Payment is due as indicated in the Order Document. All prices are quoted in the currency indicated on the Order Document, and exclude all applicable sales, excise, value added and similar taxes, and all customs, duties, freight, handling and insurance charges (where applicable). Buyer acknowledges and agrees to be responsible to pay, or reimburse Seller for, all such taxes and charges.
3. Irrevocability. Buyer agrees that its obligation to purchase the Goods is unconditional and irrevocable. Buyer’s cancellation or refusal to accept the Goods will be subject to such cancellation charges as Seller determines are appropriate.
4. Delivery. Seller makes reasonable efforts to meet agreed-upon shipping dates indicated in the Order Document; however, such dates are approximate and are based in part on Seller’s receipt of the down payment and all necessary information from Buyer. Failure to meet the agreed-upon shipping date will not entitle Buyer to cancel this Agreement or to damages of any kind. Changes in the shipping date by Buyer may, at Seller’s discretion, result in an increase in the purchase price. Unless otherwise indicated in the Order Document, shipping terms are EX-Works.
5. Buyer’s Responsibility for Compliance with Safe Use Requirements and OSHA Requirements. Seller may provide to Buyer, and may update from time to time, requirements, specifications and recommendations relating to the safe installation, configuration, use and maintenance of certain Goods (collectively, “Safe Use Requirements”). Except to the extent installation and start-up services performed by Seller involve implementation of Safe Use Requirements, Buyer shall be fully responsible for reviewing, implementing and remaining at all times in compliance with Safe Use Requirements. Should Buyer have any questions about any Safe Use Requirements, Buyer shall promptly direct them to Seller, and Seller shall promptly provide a response. In the event that Seller indicates on the Order Document that particular Goods meet applicable occupational health and safety requirements (“OSHA Requirements”), such representation applies only to the Goods as delivered by Seller and only insofar as the Goods are used by Buyer as authorized by Seller, on a standalone basis, separate and apart from other equipment, materials and processes; and except for such limited representation, Buyer shall be fully responsible for reviewing, implementing and remaining at all times in compliance with OSHA Requirements.
6. Installation and Start-Up Services. To the extent indicated in the Order Document, Seller will provide installation and start-up services for Buyer. Buyer is responsible for performing its obligations indicated in the Order Document, including ensuring that the site where the Goods will be located meets specifications required by the Goods (such specifications to be provided by Seller). If the site does not meet Seller’s specifications, then Seller can refuse to install the Goods until the site is ready, and Buyer may be responsible for extra charges for another installation visit. Seller will comply with Buyer’s safety and security policies while on-site, provided such policies are made available to Seller in advance. Buyer must provide clear, safe and unfettered access to the site and the Goods. In the event there is a question of safe working conditions, Seller has the right to suspend all services to be provided for Buyer until Seller is satisfied the issue has been resolved. Buyer will not require releases or waivers from Seller’s personnel.
7. Limited Warranty; DISCLAIMER. The Goods are covered by Seller’s limited warranty attached as Schedule A to this Agreement, subject to the disclaimers and conditions set forth therein. Any description of the Goods in an invoice or purchase order or other Order Document is for the sole purpose of identifying the Goods, and does not constitute a warranty that the Goods will conform to that description. SELLER DISCLAIMS ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Documentation/Patents. All documentation, including but not limited to catalogs, manuals and all engineering data (design information, wiring diagrams, shop drawings etc.), used in the performance of this Agreement or provided to Buyer will remain Seller’s property, and may not be duplicated or reproduced or made available to third parties without Seller’s prior written consent. The sale of the Goods does not grant to Buyer any right or license of any kind under any patent owned or controlled by Seller or under which Seller is licensed, but the foregoing will not limit in any way the right of Buyer to use and sell the Goods. In the event a machine is resold, some software licenses may be subject to transfer fees payable to the Seller.
9. LIMITATIONS OF LIABILITY. SELLER’S AGGREGATE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT, OR RELATING IN ANY WAY TO THE GOODS AND RELATED SERVICES, INCLUDING LIQUIDATED DAMAGES OR CLAIMS FOR INDEMNITY, WILL NOT EXCEED THE PURCHASE PRICE INDICATED ON THE ORDER DOCUMENT. SELLER WILL NOT BE LIABLE TO BUYER OR TO ANY OTHER PERSON FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST REVENUE OR PROFITS, LOSS OF USE OR DOWNTIME. SELLER WILL HAVE NO LIABILITY FOR DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THE FOLLOWING, AND, BY ACCEPTANCE OF THE GOODS, BUYER HEREBY RELEASES SELLER FROM ALL SUCH DAMAGES: (I) BUYER (OR ANY OTHER PARTY ON BEHALF OF BUYER OTHER THAN SELLER) INSTALLING, CONFIGURING, USING OR MAINTAINING ANY GOODS IN VIOLATION OF ANY SAFE USE REQUIREMENTS OR OSHA REQUIREMENTS; (II) ANY OTHER ACTS OR OMISSIONS OF BUYER OR ANY OTHER PARTY ON BEHALF OF BUYER (OTHER THAN SELLER) INSTALLING, CONFIGURING, USING OR MAINTAINING ANY GOODS; AND (III) ANY TECHNICAL OR OTHER SUPPORT PROVIDED BY SELLER, SUCH AS ASSISTANCE WITH “HOW TO” QUESTIONS AND QUESTIONS REGARDING INSALLATION AND SET-UP OF GOODS, WHICH SUPPORT IS PROVIDED WITHOUT WARRANTIES OF ANY KIND. THE ABOVE LIMITATIONS AND EXCLUSIONS WILL APPLY TO THE FULLEST EXTENT OF THE LAW, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
10. Indemnity. Buyer will hold harmless, indemnify and defend Seller from and against any losses, liabilities, claims, suits, proceedings, damages, costs and expenses caused by or arising out of the installation, configuration, use or maintenance of the Goods (excluding acts and omissions of Seller), including, without limitation, those caused by or arising out of Buyer’s failure to follow the instructions, warnings or recommendations furnished by Seller or the manufacturer (including Safe Use Requirements), any changes to the Goods not authorized by Seller or the manufacturer, or Buyer’s failure to comply with all laws and regulations applicable to the Goods.
11. Termination for Default. In addition to any other remedy or right available to a party under this Agreement or at law or in equity, each party will have the right to terminate this Agreement immediately on written notice to the other party (i) if the other party is in default of any of its obligations hereunder and does not cure such default within 30 days after written notice of such breach has been given to the other party, or (ii) in the event of any proceeding by or against the other party in bankruptcy or insolvency, any appointment of a receiver or trustee or any assignment for the benefit of creditors.
12. Late Payment. Overdue payments will accrue interest at the rate of 1.5% per month (18% per annum) or the maximum amount permitted by applicable law, whichever is lower. If full payment is not received by the applicable due date, Buyer agrees to reimburse Seller for the reasonable costs of collection, including legal fees and expenses. Buyer acknowledges that Seller may refuse to deliver the Goods to Buyer until overdue amounts are paid in full.
13. Notices. All notices under this Order must be in writing and will be deemed given (i) on the date of delivery if personally delivered, (ii) if sent by overnight courier, one business day after delivery to the subject overnight courier, or (iii) five business days after mailing if mailed by first-class mail, postage prepaid, to the parties at their addresses on the Order Document, or such other address designated from time to time in writing by such party to the other party.
14. Assignment/Subcontracting. Buyer may not assign this Agreement without the written consent of Seller. Seller will have the right to assign this Agreement. Seller may engage or make use of its affiliates and other third-party subcontractors; provided that Seller will remain responsible for compliance by such persons with this Agreement.
15. Governing Law. If Buyer’s address on the Order Document is in the United States, this Agreement will be governed by the laws of the State of New York, and the courts of New York County, New York will have exclusive jurisdiction in the event of any dispute arising out of this Agreement. If Buyer’s address on the Order Document is not in the United States, this Agreement will be governed by the laws of the Province of Ontario, and the courts of the Province of Ontario will have exclusive jurisdiction in the event of any dispute arising out of this Agreement. The UN Convention on the International Sale of Goods is excluded from this Agreement. Each party express waives all rights to a jury trial in connection with any dispute arising out of or relating to this Agreement. The prevailing party in any dispute arising out or related to this Agreement will be entitled to be reimbursed for all incurred legal costs and expenses.
16. Force Majeure. Neither party is liable for delays or failures in performance (other than payment obligations) under this Agreement due to a cause beyond its reasonable control.
17. Independent Contractor. Seller and Buyer are independent contractors and nothing contained in this Agreement is intended nor will it be construed as creating a fiduciary relationship, partnership, joint venture or agency relationship between Seller and Buyer.
18. Entire Agreement; Amendment; Waiver; Survival. This Agreement constitutes the entire agreement between the parties, and supersedes any prior or differing promises, representations, warranties, statements or terms. This Agreement may be amended only in writing signed by both parties. Any failure to enforce any provision of this Agreement is not a waiver of that provision or of either party’s right to later enforce each and every provision. Sections 2, 3, 9, 10, 12, 13, 15, 17 and 18 will continue in full force and effect after expiration or termination of this Agreement.
19. Language. The parties have expressly required that this Agreement and all related documents be drafted in English. Les parties confirment qu’elles ont exigé que ce contrat et tous documents s’y rattachant soient rédigés en anglais.
SCHEDULE A
EQUIPMENT WARRANTY
Seller warrants that the Goods will conform, in all material respects, with the specifications set out in the Seller’s then-current standard documentation or proposal, and will be free from defects in material and workmanship for a period of 12 months (unless otherwise specified on the agreed upon order document) from the date of delivery. Seller does not warrant uninterrupted or error-free operation of the Goods.
As Buyer’s sole and exclusive remedy, and Seller’s sole and exclusive liability, for breach of Seller’s warranty, Seller will, at its sole option and expense (except for travel expenses for technical visits to Buyer’s premises, which, if required, are payable by Buyer), either repair or replace the defective Goods. Any parts replaced by Seller or returned to Seller for replacement become the property of Seller, and the replacement part becomes Buyer property. The replacement part may not be new, but will be in good working order and functionally equivalent to the part replaced. Repaired or replacement parts are warrantied by Seller for the remainder of the original warranty period.
Seller’s warranty covers non-wear parts only, and does not apply to consumables (lights, filters, fuses, etc.) nor to any components, parts or equipment provided by other manufacturers (which are covered by the respective manufacturers’ warranty). There is no warranty on used equipment. Seller’s warranty does not cover, and it has no obligation under this warranty with respect to, defects, failures, damages, deficiencies or errors which are due to (i) normal wear and tear, or if the Goods have been operated contrary to Seller’s instructions or stated limits of rated and normal usage, (ii) compliance by Seller with any drawing, design or specification supplied by Buyer, (iii) misapplication, modification, disassembly, abuse, misuse, unauthorized repair, neglect, accident, improper maintenance, or abnormal conditions of climate, dirt or corrosive matter, (iv) installation, configuration, use or maintenance of the goods in violation of any Safe Use Requirements, (v) travel or travel expenses or (vi) any product for which Seller is not responsible (including any third party product provided with, or installed on, the Goods).
Seller’s warranty obligations are conditional upon Buyer: (w) giving Seller prompt notice after discovery of any warranty breach; (x) providing Seller with reasonable opportunity to inspect the Goods and with safe access to Buyer’s site; (y) allowing Seller to install mandatory engineering changes, if any; and (z) maintaining and operating the Goods in accordance with Seller’s instructions, including but not limited to all Safe Use Requirements, or stated limits of rated and normal usage.
Seller will charge Buyer for returned parts or service requests relating to defects that are not covered by the warranty. Repairs, modification, disassembly, or re-work to the Goods without Seller’s written consent, or any substitution of Seller parts or use of parts that are not manufactured by Seller or specifically approved by Seller, will void this warranty. Buyer will return any defective parts for warranty during the warranty period at the Buyer’s expense.
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