ISS Machinery Services Limited – Machinery Services Standard Terms and Conditions for:
Sale of Machinery Parts, Equipment & Spares and Inspection, Maintenance & Repair Services
In this document the following words shall have the following meanings:
1.1 “Buyer” means the organisation or person who purchases Goods or Services from the Seller;
1.2 “Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
1.3 “Delivery date” means the date specified by the Seller when the Goods or Services are to be delivered;
1.4 "Disbursements" means the cost of all reasonable photography, reproduction of drawings, diagrams, sketches and printing, duplicating and, where applicable, electronic transmission fees, and all reasonable and appropriate expenses including travel, refreshments and hotel accommodation where an overnight stay is necessary;
1.5 “Goods or Services” means the machinery, equipment, spare parts and any other property to be supplied to the Buyer by the Seller and / or the inspection, maintenance & repair services for lifeboats & davits (launching appliances) and / or diagnosis and technical assistance, provision of expert engineers, commissioning, supervision of maintenance services, as more fully described in the order and any subsequent changes or additions agreed on by both parties in writing;
1.6 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.7 “Price(s)” means the price or fees set out in the list of prices or fees for the Goods or Services maintained by the Seller, as amended from time to time or such other price or fees as the parties may agree in writing plus such carriage, packing, insurance or other charges or interest on such as may be quoted by the Seller or as may apply in accordance with these conditions. Sales tax or value added tax or any other similar taxes will be payable in addition to the price or fees in accordance with local legal requirements;
1.8 "Report" means any report or statement supplied by the Seller in connection with instructions received from the Buyer;
1.9 “Seller” means Inchcape Shipping Services (Japan) Ltd.
2.1 These conditions shall apply to all orders for the sale of Goods or Services by the Seller to the Buyer to the exclusion of all other terms and conditions, including any terms or conditions which the Buyer may seek to apply under any purchase order, order confirmation or similar document.
2.2 All orders for Goods or Services shall be deemed to be an offer by the Buyer to purchase Goods or Services pursuant to these Conditions.
2.3 Acceptance of delivery or completion of the Goods or Services shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties including without limitation as to discounts) shall be inapplicable unless agreed in writing by the Seller.
2.5 Any advice, recommendation or representation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods or Services or otherwise is acted upon entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any such advice, recommendation or representation.
3. Price and Payment
3.1 The terms of payment of the Price and Disbursements is to be mutually agreed by the parties.
3.2 The Seller shall be entitled to charge interest on overdue amounts from the date when payment becomes due, interest to accrue from day to day until the date of payment, at a rate of 2% per annum above the base rate of the Bank of Japan from time to time.
3.4 If payment of the Price or any part thereof and Disbursements is not made by the due date, the Seller shall be entitled to:
3.4.1 refuse to make delivery or perform any outstanding Goods or Services without incurring any liability whatsoever to the Buyer for non-delivery, non-performance or any delay in delivery or completion;
3.4.2 appropriate any payment made by the Buyer to such of the Goods or Services (or Goods or Services supplied under any other order) as the Seller may think fit;
3.4.3 terminate the order.
3.5 All Prices are quoted in JPY (Japanese Yen) and any USD (United States Dollar) Prices shown are indicative only and subject to confirmation once an order is received.
3.6 In the event the Buyer cancels an order the Seller shall try to mitigate any costs incurred, but the Buyer may be liable for the total value of the order and any other cancellation costs that may be incurred (including foreign exchange losses if the order is placed in a currency other than JPY (Japanese Yen).
4.1 Any description given or applied to the Goods or Services is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the order.
5.1 Where a sample of the Goods or Services is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the Goods or Services and not so far as to constitute a sale by sample.
6.1 Unless otherwise agreed in writing, delivery of the Goods or Services shall take place at the address specified by the Buyer on the date specified by the Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods or Services whenever they are tendered for delivery.
6.2 The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the order and while every reasonable effort will be made to comply with such dates compliance is not guaranteed and the Buyer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery date stated.
6.3 If the Seller is unable to deliver the Goods or Services for reasons beyond its control, then the Seller shall be entitled to place the Goods or Services in storage until such time as delivery may be effected and the Buyer shall be liable for any expense associated with such storage.
6.4 If the Buyer fails to accept delivery of Goods or Services on the delivery date or within 3 days of notification that they are ready for despatch, whether prior to or after the delivery date or on completion of the Goods or Services, the Seller reserves the right charge the Buyer for the Goods or Services. In addition, the Buyer shall then pay reasonable storage charges or demurrage, as appropriate in the circumstances, until the Goods or Services are either despatched to the Buyer or disposed of elsewhere.
6.5 The Seller shall be entitled to deliver the Goods or Services by instalments and where the Goods or Services are so delivered, each delivery shall constitute a separate order and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments, shall not entitle the Buyer to treat any other related order as cancelled.
7. Obligations, Responsibilities & Acceptance
7.1 The Seller is a distributor of goods and the Buyer is exclusively responsible for detailing the specification of the Goods or Services, for ascertaining the use to which they will be put and for determining their ability to function for that purpose.
7.2 The Buyer is required to test Goods or Services upon delivery and shall be deemed to have accepted the Goods or Services 4 days after delivery to the Buyer. Accordingly, no claim for defect, damage or quality will be entertained (without prejudice to the Seller’s other rights pursuant to these Conditions) unless written notice together with all supporting evidence is received by the Seller within 4 days of delivery. After acceptance the Buyer shall not be entitled to reject Goods or Services which are not in accordance with the order.
7.3 The Buyer shall not remove or otherwise interfere with the marks or numbers on the Goods or Services.
7.4 The Buyer shall accept delivery of the Goods or Services tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that any such discrepancy shall not exceed 5%, the Price to be adjusted pro-rata to the discrepancy.
7.5 The Buyer undertakes to ensure that full instructions are given to the Seller and are provided in sufficient time to enable the required Goods or Services to be performed effectively and efficiently and to procure all necessary access for the Seller to goods, premises, vessels, installations and transport and to ensure that all appropriate safety measures are taken to provide safe and secure working conditions. The Buyer shall not be liable for the consequences of late, incomplete, inadequate, inaccurate or ambiguous instructions.
7.6 The Seller shall use reasonable care and skill in the performance
of the Goods or Services.
7.7 Where requested as part of the Goods or Services the Seller shall submit a final written report to the Buyer following completion of the agreed Goods or Services describing the Seller's findings and the condition and/or quality of the object and/or purpose of the assignment.
7.8 The parties undertake not to disclose any information provided in confidence by the other party to any third party and will not permit access to such information by any third party unless the other party expressly grants permission, save where required to do so by an order of a competent court of law.
7.9 The right of ownership in respect of all original work created by the Seller remains the property of the Seller.
7.10 The Seller shall promptly notify the Buyer of any matter, including conflict of interest or lack of suitable qualifications or experience, which would render it undesirable for the Seller to continue its involvement with the Goods or Services. The Buyer shall be responsible for payment of the Price up to the date of notification.
8. Risk and Title
8.1 Risk of damage or loss of the Goods or Services shall pass to the Buyer in the case of Goods or Services to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods or Services are available for collection, or in the case of Goods or Services to be delivered by the Seller, at the time of delivery.
8.2 Notwithstanding delivery and the passing of risk in the Goods or Services, or any other provision of these conditions, the title in the Goods or Services shall not pass to the Buyer until the Seller has received in cleared funds payment in full of the Price of the Goods or Services and of all other charges or expenses payable.
8.3 Until such time as the title in the Goods or Services passes to the Buyer, the Buyer shall hold the Goods or Services as the Seller’s fiduciary agent and bailee, and shall keep the Goods or Services separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property.
8.4 Until payment of the Price the Buyer shall be entitled to resell or use the Goods or Services in the course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods or Services, whether tangible or intangible including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
8.5 Until such time as the title in the Goods or Services passes to the Buyer (and provided that the Goods or Services are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods or Services to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or of any third party where the Goods or Services are stored and repossess the Goods or Services.
8.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods or Services which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8.7 The Seller shall be entitled to recover the Price notwithstanding that title in any of the Goods or Services has not passed from the Seller.
9. Insolvency of Buyer
9.1 If the Buyer fails to make payment for the Goods or Services or commits any other breach of this these Conditions or commits any other breach of this these Conditions or if any distress or execution shall be levied upon any of the Buyer’s property or the Goods or Services or if the Buyer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver, administrator administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign law or if any such matter as provided for in this Clause is reasonably anticipated by the Seller all sums outstanding in respect of the Goods or Services shall become payable immediately.
9.2 The Seller may in the circumstances set out in Clause 9.1 above also in its absolute discretion, and without prejudice to any other rights which it may have, exercise any of its rights pursuant to Clause 8 above.
10.1 The Seller provides no warranty, guarantee or any assurances that the Goods or Services may be fit for a particular purpose. The defective Goods or Services shall be subject to the warranty and guarantee provisions provider by the manufacturer or supplier, which
shall be passed through to the Buyer. If the Seller has performed the Goods or Services then the Seller’s sole liability will be to re-perform the Good or Services at the Seller’s cost or where the Buyer arranges for the Good or Services to be re-performed to the amount of five times the Seller’s Price or US$25,000 whichever is the greater.
10.2 Where the Goods or Services are found to be defective, the Buyer shall notify the Seller in writing immediately upon the defect becoming apparent. The Supplier shall consult with the manufacturer or supplier to check if the defect is covered by the warranty provided by the manufacturer or supplier;
10.3 Any Goods or Services agreed to be repaired or replaced by manufacturer or supplier shall be returned to the Seller at the Buyer’s expense, if so requested by the Seller.
10.4 Where the manufacturer or supplier refunds the Price paid for the defective Goods or Services, such refund will be passed onto the Buyer or deducted from the Buyer’s next order for Goods or Services.
11.1 No liability of any nature shall be incurred or accepted by the Seller, in respect of any express term or representation made by the Seller or on Seller’s behalf to the Buyer or to any party acting on Buyer’s behalf, prior to placing of any order, where such representations are made or given in relation to:-
11.1.1. the correspondence of the Goods or Services with any description or sample;
11.1.2. the quality of the Goods or Services; or
11.1.3. the fitness of the Goods or Services for any purpose whatsoever.
11.2 All other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods or Services, whether express or implied by statute or common law or otherwise are hereby excluded to the fullest extent permitted by law.
12. Limitation of Liability
12.1 The Seller’s liability to the Buyer for any losses, liabilities, damages, legal costs or expenses or any other form of claim, howsoever arising, in connection with or out of the Goods or Services (whether in contract, tort, negligence or any other legal remedy) shall be limited to an amount not exceeding five times the Price or US$25,000 whichever is the greater.
12.2 Neither the Seller or Buyer shall be liable to the other for any loss of profit, loss of revenue, loss of contract, loss of business or any other consequential or indirect losses, howsoever arising, even if due to the negligence or default of a party or within the prior knowledge of a party.
12.3 Any claims against the Seller by the Buyer shall be deemed to be waived and absolutely time barred upon the expiry of one year from the date of the delivery or performance of the Goods or Services.
12.4 Nothing contained in these Conditions shall be construed so as to limit or exclude the liability of the Seller for death or personal injury as a result of the Seller’s negligence or that of its employees or agents.
13. Intellectual Property Rights
13.1 Where any Goods or Services supplied include or contain computer program(s) and/or related documentation the copyright in which is owned by a third party, all rights and liabilities associated with the use and/or reproduction thereof will be subject to the terms of the applicable manufacturer or supplier’s end user licence, to the exclusion of any liabilities and obligations on the part of the Seller.
13.2 The Buyer will indemnify the Seller against all liabilities for infringement of third party intellectual property rights arising from compliance with the Buyer’s specific requirements regarding design or specification for the Goods or Services or arising from the use of the Goods or Services in combination with other products.
13.3 In the event that all the Goods or Services or the use thereof (subject as aforesaid) are held to constitute an infringement of any intellectual property rights and the use is thereby prevented, the Seller will consult with the manufacturer or supplier and request the manufacturer or supplier either procure for the Buyer the right to continue using the Goods or Services or replace the same with a non-infringing product, or modify the Goods or Services so that they become non-infringing, or elect to retake possession of the Goods or Services and refund the Price. Subject to the foregoing, the Seller shall be under no liability to the Buyer for any loss, damage or enquiry, whether direct or indirect, resulting from any intellectual property right infringement of the Goods or Services.
14. Force Majeure
14.1 The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not
limited to acts of God, adverse weather, epidemics, pandemics, strikes, lock outs, civil commotion, terrorist attacks, contamination, accidents, war, seizure, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may without liability on its part, terminate any order or any part of it.
15. Seller's Right to Sub-contract and Assignment
15.1 The Seller shall have the right to sub-contract any of the services provided under the Goods or Services, subject to the Buyer's right to object on reasonable grounds. In the event of such a sub-contract the Seller shall remain fully liable for the due performance of its obligations under these Conditions.
15.2 Neither these terms and conditions nor any of the rights, interests or obligations under these terms and conditions shall be assigned, in whole or in part, by operation of law or otherwise by any of the parties without the prior written consent of the other party, except that a party may assign, in its sole discretion, any of or all its rights, interests and obligations under these terms and conditions to any direct or indirect affiliate of that party, but no such assignment shall relieve that party of any of its obligations under these terms and conditions. Any assignment that does not follow the provisions of this Clause shall be void. Subject to the preceding sentences, these terms and conditions will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.
16.1 Buyer acknowledges and agrees that the employees and sub-contractors of Seller who perform the Goods or Services hereunder are a valuable asset to the Seller and are difficult and costly to replace. Accordingly, Buyer hereby agrees that for a period of twelve (12) months after completion of the Goods or Sevices it will not solicit as an employee, independent contractor or independent consultant any employee or sub-contractor of the Seller who performs any Goods or Services hereunder.
17. General Data Protection Regulation (“GDPR”)
17.1 If at any time in the performance of the Goods or Services the Seller is required to process personal data of individuals which is subject to the European Union - General Data Protection Regulation (“GDPR”) or equivalent laws the Seller shall comply with GDPR and as a Data Processor shall:
17.1.1 Not use a sub-processor without the prior written authorisation of the Buyer;
17.1.2 Co-operate with supervisory Data Protection Agencies;
17.1.3 Ensure the security of data processed;
17.1.4 Keep records of data processing activities;
17.1.5 Notify any personal data breaches to the Buyer; and
17.1.6 Employ a data protection officer and appoint (in writing) a representative within the EU (Data.Protection@ISS-Shipping.com).
18. Ethics, Bribery & Sanctions
18.1 Seller is legally bound to comply with the UK Bribery Act 2010 and the US Foreign and Corrupt practices Act 1977, as amended, as well as other applicable international laws or regulations in relation to ethics and bribery. If the Seller encounters a breach or believes that a breach of the relevant laws or regulations will occur in connection with the Goods or Services, the Seller will immediately notify the Buyer and if necessary terminate the performance of the Goods or Services.
18.2 Seller is legally bound to comply with European Union and United States of America (OFAC) sanctions programmes, as well as any other similar applicable laws or regulations in other jurisdictions. If Seller encounters a breach or believes that a breach of the relevant sanctions will occur in connection with the Goods or Services, the Seller will immediately notify the Buyer and if necessary terminate the performance of the Goods or Services. 18.3 The Seller shall have no liability to the Buer for any claims losses, liabilities or expenses related to the Seller’s inability to perform or complete the Goods or Services due to circumstances covered under this Clause.
18.4 All business conducted by the Seller, including its interaction with the Buyer, sub-contractors and intermediaries, is subject to its Code of Conduct and Ethics. The Code of Conduct and Ethics is designed to identify a set of aims, values and rules which govern how the Seller and its employees will conduct business on behalf of the Buyer. A copy of the Code of Conduct and Ethics is available on request.
19. Relationship of Parties
15.1 Nothing contained in these Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Conditions shall be deemed to construe either of the parties as the agent of the other.
16.1 Any order for Goods or Services shall not be assigned or transferred without the prior written consent of the Seller.
17.1 The failure by either party to enforce at any time or for any period any one or more of the Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Conditions of this Agreement.
18.1 If any term or provision of these Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
23. No set off
19.1 The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have for any reason whatsoever.
24. Entire Agreement
20.1 These Conditions and any documents incorporating them or incorporated by them constitute the entire agreement and understanding between the parties.
25. Governing Law and Jurisdiction
21.1 This Agreement shall be governed by and construed in accordance with the laws of Japan and the parties hereby submit to the exclusion jurisdiction of the Tokyo courts.