Hayachi Services Limited (‘Hayachi Services’)
General Terms of Business (‘Terms’)
June 2020 revision
- These Terms of Business:
- supersede any previous arrangements between the parties and constitute the entire understanding between them. No addition, amendment or modification of these Terms shall be effective unless in writing and signed by Hayachi Services
- shall apply to all orders (including telephone and email orders) placed with Hayachi Services by the Client. Acceptance by Hayachi Services of any order is conditional upon acceptance by the Client of these Terms of Business
- shall override all other inconsistent terms (whether express, implied or otherwise), including (but not limited to) any terms, conditions or stipulations contained in a purchase order or other writing or otherwise stipulated by the Client and which are at variance with or additional to these Terms of Business, unless such additional or varied terms are specifically accepted in writing and signed by Hayachi Services. In particular, it is agreed that any ‘Purchase Order’ or other such document from the Client is intended for the Client’s own administrative purposes only, and that notwithstanding its wording, neither such document nor its content will have any legal effect.
- Hayachi Services shall not be bound by the placing of an order unless and until the earliest of (i) Hayachi Services issuing its Order Confirmation, (ii) both parties signing and exchanging copies of a Letter of Engagement / Quotation, (iii) delivery of any hardware or software specified in an order, or (iv) commencement of performance of any services specified in a Letter of Engagement / Quotation.
- Hayachi Services and the Client mutually acknowledge that, in entering into any contract under these Terms, they do not do so on the basis of or relying on any representation, warranty or other provision except as expressly provided in these Terms or in any Order Confirmation or Letter of Engagement / Quotation, and accordingly all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law. Any liability or remedy for innocent or negligent misrepresentation is expressly excluded.
- The Client warrants that it is a bona fide business and that it enters any contract under these terms in such capacity. The Client is not a ‘consumer’ within the meaning of the Consumer Protection (Distance Selling) Regulations 2000.
- These Terms of Business:
- ‘Goods’ includes both hardware and (so far as the context permits) software, whether supplied by way of sale, hire, or on licence. This term applies to any Goods to be supplied by Hayachi Services.
- The price of Goods is based on the cost prevailing at the date of Hayachi Services’ Order Confirmation; Hayachi Services reserves the right to adjust the price by such amount as may be necessary to cover any increase affecting Hayachi Services after that date attributable to market conditions prevailing at the date of delivery to the Client. ‘Market conditions’ include (but are not limited to) any direct or indirect increase in any foreign exchange rates relating to the Goods or in the cost of labour, materials, handling, manufacture, supply or transport, or such costs as may be incurred by Hayachi Services in complying with obligations imposed by law.
- Where a price for more than one item of Goods is quoted, the price may be based on the quantity specified, and Hayachi Services reserves the right to adjust the price if orders are placed for a different quantity, or if the quantity actually delivered to the Client differs (for any reason) from that specified in any quotation.
- The price of the Goods is based on delivery to the address specified, and on any relevant specifications; it is subject to adjustment in the event of delivery to a different address. or in the event of any modification (either at the request or with the consent or knowledge of the Client).
- All drawings, weights, dimensions and the descriptions and illustrations contained in any sales literature and price lists are approximate only, and shall not form part of any contract under these Terms. Drawings or technical documents are for the use or information of the Client alone, and shall not be copied, reproduced or communicated to any third party without Hayachi Services’ prior written consent.
Delivery and Installation
- Delivery dates are estimates only, and unless Hayachi Services expressly agrees in writing to be bound by a delivery date as being of the essence of any contract under these Terms, it shall not be liable for direct, indirect or consequential loss arising from part, late or non‑delivery.
- Where Hayachi Services expressly agrees in writing to be bound by a delivery date, Hayachi Services’ liability (subject to any other of these Terms) in respect of any loss or damage suffered by the Client which is directly attributable to such part, late or non‑delivery shall be limited to the value of any Goods not delivered.
- Hayachi Services shall inform the Client when any part or all of the Goods is ready for delivery, and the Client shall inform Hayachi Services of the location for delivery if the same does not appear on or differs from the address stated in any Order Confirmation. If the Client fails to give to Hayachi Services instructions for delivery within twenty‑one (21) days of such notification by Hayachi Services, Hayachi Services may without further reference to the Client arrange for storage of the Goods. Charges for storage shall be paid by the Client and the Goods shall be subject to a lien for such storage charges. Hayachi Services may also invoice for the Goods, and payment shall be due as if delivery had been made.
- Delivery shall be made during normal working hours (excluding local and national holidays). If the Client requires delivery to be made outside such times, an additional charge shall be payable. Hayachi Services reserves the right to deliver in more than one delivery.
- Where necessary, the Client shall prepare the area of delivery and installation for the Goods and provide free access to the location and to any services or facilities that may be required to deliver and install the Goods. Where these have not been prepared or provided and as a result Hayachi Services is prevented from carrying out delivery or installation at the pre‑arranged day and time, Hayachi Services shall be entitled to charge.
Damage, Shortage or Loss in Transit
- The Client acknowledges that it is its responsibility to check all deliveries before signing for them, and that Hayachi Services is entitled to treat the Client’s signature for delivery of all Goods as conclusive proof that all such Goods as are signed for have in fact been delivered.
- Hayachi Services accepts responsibility for damage, shortage or loss in transit if:
- notified to Hayachi Services and the carrier (if not delivered by Hayachi Services) within three days of receipt or proposed date of receipt of the Goods by the Client; and (where applicable)
- the Goods have been handled by the Client in accordance with Hayachi Services’ or the carrier’s conditions of carriage or handling stipulations.
- Where Hayachi Services accepts responsibility under this Clause, it shall, at its sole option, replace or repair (as the case may be) any such Goods proved to Hayachi Services’ satisfaction to have been lost or damaged in transit.
Title to the Goods and the Passing of Risk
- Risk in Goods shall pass to the Client upon delivery by Hayachi Services or its carriers to the Client or his agent and Hayachi Services shall not be liable for any loss or damage to the Goods from the time that the Goods are so delivered.
- Notwithstanding delivery, installation, acceptance and passing of risk, title to any Goods to be sold to the Client shall not pass to the Client and shall be retained by Hayachi Services until full payment of all monies due on any account has been received by Hayachi Services from the Client.
- Until such time as title in Goods has passed to the Client:
- the Client shall, subject to Hayachi Services’ rights hereunder
- hold the Goods as Hayachi Services’ fiduciary agent and be entitled to use the same in the ordinary course of the Client’s business; but shall not sell or part with possession thereof;
- store the Goods separately from any goods belonging to the buyer or any third party, and keep the Goods clearly marked and identifiable as being the property of Hayachi Services;
- cause to be added to its audited accounts for each year a note that Goods supplied by Hayachi Services are subject to retention of title and shall be the property of Hayachi Services until full payment of has been made ; and
- insure such Goods to their replacement value naming Hayachi Services as the loss payee until all payments to Hayachi Services have been made; the Client shall forthwith upon request provide Hayachi Services with a certificate of such insurance.
- Hayachi Services:
- shall be entitled to enter the Client’s premises upon reasonable notice to verify the Client’s compliance with the preceding clause;
- shall be entitled to repossess at any time any Goods in which title remains vested in Hayachi Services and for this purpose at any time and without notice Hayachi Services may enter upon any premises in which the Goods or any part thereof are installed, stored or kept, or are reasonably believed so to be;
- shall be entitled to seek a court injunction or equivalent judicial order under the applicable law of this Agreement to prevent the Client from selling, transferring or otherwise disposing of the Goods.
- the Client shall, subject to Hayachi Services’ rights hereunder
- Hayachi Services warrants to the Client that the Goods sold by Hayachi Services are believed to be free from defects of workmanship and materials and Hayachi Services undertakes, subject to the following terms, to replace or, at its option, to repair any Goods purchased hereunder (other than rubber parts and/or printing heads and/or consumable items) found to be defective within 90 days (or such other period as may be specified) of the date of original delivery and installation, where such defects are a result of faulty materials or workmanship.
- Each claim of the Client under this warranty shall be sent in writing to Hayachi Services specifying the type of Goods and nature of the defect. Upon receipt of such written notice, Hayachi Services or its agent or representative shall have the option of testing or inspecting the Goods at their location or of having the Goods returned to Hayachi Services or such other address as may be notified to the Client, freight pre‑paid by the Client. Replacement parts, items or Goods shall be sent by Hayachi Services to the Client ordinary freight pre‑paid.
- In the event of any claim presented under warranty being found on investigation by Hayachi Services either to be outside the scope or duration of this warranty or the fault being unconfirmed, then the costs of such investigation and repair shall be borne by the Client.
- Hayachi Services shall not be liable at any time for damage or defects in the Goods or parts caused by improper use, abuse, mismanagement or by using the Goods outside any specifications detailed in the manuals and documentation relating to the Goods or outside the specific application of the Goods.
- EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, Hayachi Services MAKES NO OTHER REPRESENTATIONS OR WARRANTIES AND EXPRESSLY EXCLUDES THE SAME WHETHER IMPLIED, STATUTORY OR OTHERWISE, ESPECIALLY AS TO QUALITY OR FITNESS OF THE GOODS FOR ANY PARTICULAR PURPOSE.
- This warranty shall not be assigned without the prior written consent of Hayachi Services.
- Copyright, Patents, & Trade Marks in GoodsThe Client acknowledges that any and all of the trade marks, copyright, patents and other intellectual property rights used or subsisting in or in connection with the Goods including software, hardware and other parts thereof in which Hayachi Services or the respective manufacturer, developer or third party has an interest are and shall remain the sole property of Hayachi Services or such manufacturer, developer or third party. The Client shall not during or at any time after the completion, expiry or termination of this Agreement in any way question or dispute the ownership thereof.
This term applies to any third party software (that is, software not originating from Hayachi Services) to be supplied by Hayachi Services. Where any such software is to be supplied:
- Where the Client has been furnished with a developer’s software licence, the same must be signed and returned to Hayachi Services within 7 days or as otherwise specified in the said licence unless the said licence is a “shrink wrap” licence. If the Client fails so to sign and return the said licence, Hayachi Services reserves the right to withhold release of the Software; or, if the same has been delivered, to collect the Software from the Client.
- In absence of the developer’s software licence being furnished, the Client, on issue of Hayachi Services’ Order Confirmation or upon delivery of the Software, hereby accepts a non‑exclusive, non‑transferable licence to use the Software upon the following terms:
- the Client undertakes not to copy (other than for normal operation and except to the extent permitted by the applicable law), reproduce, translate, adapt, vary or modify the Software nor to communicate the same to any third party without Hayachi Services’ prior written consent;
- The Client undertakes to use the Software only on such equipment as may be specified and not to remove, add to, change or otherwise tamper with any copyright notice, legend or logo appearing in or on the Software or the medium upon which it resides;
- The licence hereby granted shall continue until or unless either party gives to the other party one month prior written notice of termination, before the expiry of which the Client undertakes to return or destroy the Software as Hayachi Services shall direct PROVIDED that Hayachi Services shall only exercise its right to terminate in the event that the continued use or possession of the Software by the Client infringes the developer’s or third party rights or where Hayachi Services is enforced so to do by law.
- Hayachi Services may terminate the Licence forthwith if the Client fails or has failed to comply with any of these Terms.
This term applies to any Goods that are to be hired to the Client:
- The Goods remain the property of Hayachi Services at all times. The Client will keep all such Goods clearly marked as the property of Hayachi Services, and will not allow any such notice to be removed or defaced.
- The Goods are at the risk of the Client; the Client shall keep the Goods continuously and comprehensively insured at their full replacement value against all risks, shall notify the insurer of the interest of Hayachi Services in the Goods, and shall provide that all monies receivable against any claims shall be payable to Hayachi Services. Loss or damage to the Goods shall not affect the continuance of the hiring, and the Client shall not be entitled to any rebate in respect of any period during which the Goods are not usable.
- The Client shall take proper care of the Goods and at all times maintain them in good working order, and shall be responsible for any loss or damage to the Goods howsoever caused. The Client will:
- operate and maintain the Goods according to any instructions given by the supplier or manufacturer and shall modify such operations and maintenance from time to time in accordance with the manufacturers or suppliers further instructions, and shall not allow any person, unless properly trained by and to a standard set from time to time by the manufacturer or his accredited agent, to operate the Goods
- other than for the purposes of repair, alteration, additions or other modifications, not allow the Goods to be removed from the location address
- from time to time, allow Hayachi Services or its appointed agent reasonable access to inspect and test the equipment, fix plates for recognition purposes and to conduct an inventory.
- The hiring will continue until the expiry of any Notice to Terminate given by either party to the other as stated in the Order Confirmation, or (if no period of notice is otherwise specified) on the expiration of one month’s notice; provided that Hayachi Services may forthwith terminate the hiring if the Client
- is more than 7 days in arrears with any payment due to Hayachi Services on any account, or
- is in breach of any other terms of the contract relating to the hiring, or
- shall cease to trade, or if any distress or execution is levied against the Client, or if the Client makes any composition or arrangement with its creditors, or if any preliminary step is taken by or in respect of the Client towards its liquidation winding up or administration.
- Termination, howsoever or whenever occasioned shall be subject to any rights and remedies either party may have under this Agreement or in Law.
- At the termination of the hiring:
- the Client shall return the Goods to Hayachi Services at the Client’s expense in good condition (fair wear and tear excepted)
- the Client will no longer be in possession of the equipment with Hayachi Services’ consent, and Hayachi Services shall be entitled to repossess the Goods, and for this purpose shall be entitled at any time and without notice to enter upon any premises in which the Goods or any part thereof are installed, stored or kept, or are reasonably believed so to be.
This term applies to any Services that are to be provided by Hayachi Services:
Services – Generally
- Hayachi Services will provide services as agreed in a Letter of Engagement / Quotation, so far as is reasonably practicable within any agreed timescale, and with all proper skill and care.
- As an independent professional, Hayachi Services will not require or be subject to supervision, direction or control as to its daily activities or the manner of performance thereof, and itself accepts the responsibility for the proper provision of Services.
- For the avoidance of doubt, the Client shall not (and does not have the right to) exercise supervision, direction or control as to the manner of performance of the Services.
- Hayachi Services is responsible for maintaining reasonable continuity in personnel providing Services on its behalf, but reserves the right in its sole discretion to make changes from time to time; no additional charge will be made for any handover period, and Hayachi Services remains responsible for Services performed by any individual on its behalf.
- Estimates are subject to change if based on incorrect information provided by the Client, or if any specified dependencies / facilities are not available on time, or if any equipment required to be provided by the Client fails to operate correctly (save where the engagement itself is for the repair thereof).
Copyright and Intellectual Property Rights arising in the course of Services
- ‘Deliverable’ means a work produced by Hayachi Services in the course of Services for delivery to the Client.
- Where pre-existing works are specified in a Letter of Engagement / Quotation as being incorporated in any Deliverable, the Client has non-exclusive irrevocable world-wide royalty free licence to use modify and distribute such pre-existing works, but only as part of the Deliverable; all other rights in the pre-existing works are reserved.
- Subject thereto, all rights in any Deliverable pass to the Client upon payment of all fees due to Hayachi Services which relate to that Deliverable, and Hayachi Services will execute a formal assignment thereof on request by the Client.
Termination of a contract for Services
- Save where otherwise specified in a Letter of Engagement / Quotation, either party may terminate any engagement by one month’s written notice to the other.
- If the parties have signed a separate agreement containing more specific provisions in relation to confidentiality, the provisions of such agreement will continue to apply in lieu of this section 6.
- Subject to section 6.1, Hayachi Services and the Client each recognise that information disclosed to the other in the course of the negotiation of and the performance of this Agreement will contain and incorporate confidential information in which the other has an interest. Each agrees with each other that they will maintain as confidential and will not use any part or the whole of such information directly or indirectly disclosed by the other (or information gained from such disclosure).
- This obligation does not apply to (i) information known to the receiver before disclosure by the other party, and free of any obligation of confidentiality, or (ii) information independently developed or acquired by the receiver, without reference or access to the discloser’s confidential information, and free of any obligation of confidentiality, or (iii) information which becomes public knowledge without fault on the part of the receiver, or (iv) disclosures made to the extent required by some applicable legal or regulatory requirement.
- Sums due for Services: shall be invoiced and paid as specified in the Letter of Engagement / Quotation. The Client will pay Hayachi Services’ invoices within 14 days. Unless otherwise specified, where payment is on a time and materials basis, Hayachi Services may invoice monthly.
- Sums due for Goods, Software, and Hire: are payable in advance by credit card or debit card, unless otherwise agreed by Hayachi Services. Where credit terms are agreed, payment is due within 14 days of invoice; provided that Hayachi Services reserves the right to withdraw the credit facility at any time and to substitute cash with order. Any discounts must be agreed in writing by Hayachi Services.
- All invoices: are subject to VAT (where applicable). So far as payment of Hayachi Services’ invoices is concerned, time is of the essence, and if the Client does not make payments on the due date then, without prejudice to any other remedy:-
- Hayachi Services may withhold or suspend performance of any contract between Hayachi Services and the Client.
- All sums owing by the Client to Hayachi Services on any account shall become due and payable immediately.
- The provisions of the Late Payment of Commercial Debts (Interest) Act 1998 shall apply.
- The Client will indemnify Hayachi Services from and against any and all loss damage costs or expenses (including legal expenses on the indemnity basis) which Hayachi Services may incur as a result of the Client’s failure to pay on time.
- Hayachi Services may terminate any contract between the Client and Hayachi Services; if Hayachi Services does so, the respective rights and liabilities under such other contracts shall be as if each such contract had been lawfully terminated by Hayachi Services for breach thereof by the Client.
- Hayachi Services’ LIABILITY
- Hayachi Services EXPRESSLY EXCLUDES LIABILITY FOR CONSEQUENTIAL LOSS OR DAMAGE, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE TO DATA OR TO OTHER EQUIPMENT OR PROPERTY, (WHETHER OR NOT THE SAME MAY BE IN Hayachi Services’ CARE, CUSTODY OR CONTROL) OR FOR LOSS OF PROFIT, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS.
- SUBJECT THERETO, Hayachi Services ACCEPTS LIABILITY IN RESPECT OF ANY DIRECT LOSS OR DAMAGE ARISING AS A RESULT OF NEGLIGENCE, OR IN RESPECT OF DIRECT LOSS OF OR DAMAGE TO PROPERTY BELONGING TO OR HELD BY THE CLIENT DIRECTLY ATTRIBUTABLE TO THE DISHONESTY OR MALICIOUS ACT OR DEFAULT OF Hayachi Services’ STAFF; IN EITHER CASE, SUCH LIABILITY IS LIMITED TO THE LESSER OF £10,000 AND, WHERE THE LOSS RELATED TO SPECIFIC GOODS AND/OR SERVICES SUPPLIED, THE AMOUNT OF Hayachi Services’ CHARGE FOR THOSE GOODS AND/OR SERVICES.
- SUBJECT THERETO, EXCEPT TO THE EXTENT THAT BY THE LAW RELATING TO THIS AGREEMENT IT IS NOT LAWFUL TO EXCLUDE SUCH LIABILITY, Hayachi Services SHALL NOT BE LIABLE TO THE CLIENT FOR ANY LOSS OR DAMAGE WHATSOEVER OR HOWSOEVER CAUSED ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH ANY CONTRACT UNDER THESE TERMS, ANY GOODS OR SERVICES SUPPLIED UNDER SUCH A CONTRACT OR THE USE OF SUCH GOODS, OR OTHERWISE.
- IN THE EVENT THAT ANY EXCLUSION OF LIABILITY CONTAINED IN THESE TERMS OF BUSINESS SHALL BE HELD TO BE INVALID FOR ANY REASON AND Hayachi Services BECOMES LIABLE FOR LOSS OR DAMAGE THAT MAY BE LIMITED OR CAPABLE OF BEING LIMITED IN LAW, SUCH LIABILITY SHALL BE LIMITED TO £10,000.
- Hayachi Services SHALL NOT IN ANY EVENT BE LIABLE FOR ANY CLAIMS UNLESS THEY ARE NOTIFIED TO Hayachi Services WITHIN TWELVE MONTHS OF THE CAUSE OF ACTION ACCRUING.
- Hayachi Services does not exclude or limit liability for death or personal injury, to the extent that the same arises directly from the negligence of Hayachi Services or its employees.
- Either party may terminate any contract under these Terms if
- the other shall cease to trade, or
- any distress or execution is levied against the other, or
- the other makes any composition or arrangement with its creditors, or
- any preliminary step is taken by the other or by another towards its liquidation winding up or administration, or
- the other is in breach and fails to remedy the breach within 7 days notice requiring the breach to be remedied, or
- the other is in breach and the breach is incapable of remedy
- Termination shall be subject to any rights and remedies either party may have under this Agreement or in Law.
- On termination any obligation of a continuing nature shall survive.
- Either party may terminate any contract under these Terms if
- DATA PROTECTION
- The nature of the relationship constituted by this Agreement is such that the parties envisage that each party will be a Data Controller, and that neither will be in the position of Data Processor in relation to the other.
- Each party will comply with all applicable requirements of Data Protection Legislation, and ensure that, in relation to any Personal Data to be provided to the other, it has all necessary appropriate consents and notices in place to enable lawful transfer of that Personal Data, for the duration and purposes of this Agreement.
- COMPLIANCE WITH APPLICABLE LAWS
- In performing its obligations under any contract referencing these terms, Hayachi Services shall comply (and shall be responsible for ensuring that any subcontractor complies) with all applicable laws, statutes, regulations and codes from time to time in force, including (but not limited to) currently applicable data protection and privacy laws, the Bribery Act 2010, the Modern Slavery Act 2015, and the Criminal Finances Act 2017.
- Where the Client might reasonably be considered to be exposed to liability in the event of non-compliance by Hayachi Services or any subcontractor of Hayachi Services, Hayachi Services shall, at the Client’s request, provide the Client with a statement of such steps it has taken to ensure such compliance, together with such other information as the Client may reasonably require in order to undertake risk assessments.
Any notice to be given by either party to the other shall be in writing and may be sent by recorded delivery ‘signed for’ post to the address of the other and shall be deemed to be served 2 days following the date of posting.
- Force Majeure
If either party is prevented or delayed in the performance of any of its obligations by any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of such party, then such party shall be excused the performance for so long as such cause of prevention or delay shall continue. Hayachi Services’ obligation to perform any contract under these Terms shall be suspended where the presence of such hazards as defective structure, defective or dangerous means of access, noxious, toxic, combustible, explosive or radioactive substances or any other cause renders any premises where the contract is to be performed dangerous (in Hayachi Services’ reasonable opinion) to any of Hayachi Services’ staff.
Failure or neglect by either party to enforce at any time any of the provisions hereof shall:
- not be construed nor shall be deemed to be a waiver of its rights hereunder
- not in any way affect the validity of the whole or any part of this Agreement
- not prejudice its rights to take subsequent action;
Headings in these Terms of Business are inserted for convenience only, and are not intended to be part of or to affect the meaning or interpretation of any of these Terms of Business.
If any of these Terms is held by any Court or other competent authority to be wholly or partially void, invalid, or unenforceable such term shall be severed from the body of these terms (which shall continue to be valid and enforceable to the fullest extent permitted by Law).
No agreement under these terms shall be assigned by either party without the prior written consent of the other.
These terms, any contract between the parties on these terms, and any non-contractual disputes or claims between the parties, are governed by the laws of England and Wales, whose courts shall have sole jurisdiction in relation to all matters arising.