SUMO UK LTD: TERMS AND CONDITIONS OF SALE

Notice to Customers: The Customer’s attention is drawn in particular to the provisions of clause 9.

1. DEFINITIONS AND INTERPRETATION

1.1    In these Conditions (unless the context otherwise requires) the following words and phrases shall have the following meanings:

Business Day: the day (other than a Saturday, Sunday or Public Holiday) when banks in London are open for business;

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.6;

Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions;

Customer: the person to whom the Supplier supplies or is to supply Goods pursuant to the Contract;

Force Majeure Event: has the meaning given to it in clause 11;

Goods: the Goods (or any part of them) set out in the Order;

Order: the Customer’s Order for the Goods as set out in the Customer’s purchase order form;

Specification: any specification for the Goods, including any related plans and drawings that are agreed in writing by the Customer and the Supplier;

Supplier: Sumo UK Ltd, a company registered in England & Wales under company number 03272544 whose registered office is at Redgates, Melbourne, York, YO42 4RG.

1.2    In these Conditions (unless the context otherwise requires):

1.2.1    Construction of these Conditions shall ignore the headings, all of which are for reference only;

1.2.2    Any reference to any legislative provision shall be deemed to include any subsequent re-enactment or amending provision; and

1.2.3    In the event that any provisions of the Contract conflict with these Conditions, the provisions of the Contract shall prevail.

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 trade, custom, practice or course of dealing.

2.2    The Order constitutes an offer by the Customer to purchase the Goods in accordance with the Conditions.  The Customer is responsible for ensuring that the terms of the Order and any applicable Specifications are complete and accurate.

2.3    The Order shall be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.

2.4    The Contract constitutes the entire agreement between the parties.  The Customer acknowledges that it has not relied on any statement, premise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

2.5    Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Suppliers’ catalogues or on its website are produced for the sole purpose of giving an approximate idea of the Goods described in them.  They shall not form part of the Contract or have any contractual force.

2.6    A quotation for the Goods given by the Supplier shall not constitute an offer.  A quotation shall only be valid for a period of 30 Business Days from its date of issue and the Supplier reserves the right to revise the quotation prior to acceptance of an Order.

3. GOODS

3.1    The Goods are described in the Specification.

3.2    To the extent that the Goods are to be manufactured in accordance with the Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and loses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and/or interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification.  This clause 3.2 shall survive termination of the Contract.

3.3    The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.

4. DELIVERY

4.1    The dates mentioned in any quotation, Order, acceptance form or elsewhere for delivery of the Goods are approximate only and time for delivery is not of the essence and shall not be made so by the service of any notice.  The Supplier accepts no liability for failure to deliver on or by a particular date or dates.

4.2    The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.

4.3    Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.

4.4    The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5    If the Supplier fails to supply the Goods, and has received payment therefor its liability shall be limited to the price of the Goods.  The Supplier shall have no liability for any failure to deliver the Goods to the extent that such a failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with any delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6    If the Customer fails to accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:

4.6.1    Delivery of the Goods shall be deemed to have been completed at 9.00am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and

4.6.2    The Supplier shall still have the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).

4.7    If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery, the Customer has not accepted delivery of them, the Supplier may sell or otherwise dispose of the Goods.

4.8    The Supplier may, where appropriate, deliver the Goods by instalments, which shall be invoiced and paid for separately.  Each instalment shall constitute a separate Contract.  Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

4.9    Any claim for delivery of Goods not of the correct quantity or description shall be notified in writing by the Customer to the Supplier immediately and, in any event, within 7 days of delivery; or, in the case of non-delivery, of the date of invoice.  In the absence of such notification the Customer excludes, and indemnifies the Supplier against, all liability in respect of incorrect delivery or such defects.  The Supplier shall not be liable for any Goods that are lost or destroyed in transit and all claims by the Customer for such loss or damage shall be made against the carrier.

5. QUALITY

5.1    The Supplier warrants that on delivery, UK machines carry a period of 36 months on all sumo manufactured parts, 12 months on all other parts from the date of delivery to dealer. International machines carry a warranty period of 1 year warranty from date of delivery to farmer. (Warranty Period) the goods shall:

5.1.1    Conform in all material respects with their description and the Specification;

5.1.2    be free from material defects in design, material and workmanship;

5.1.3    Be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and

5.1.4    Be fit for any purpose held out by the Supplier.

5.2    Subject to clause 5.3, if:

5.2.1    a Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the Warranty set out in clause 5.1;

5.2.2    The Supplier is given a reasonable opportunity of examining such Goods; and

5.2.3    the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost, the Supplier, at his option, shall repair or replace the defective goods or refund the price of the defective Goods in full.

5.3    The Supplier shall not be liable for Goods’ failure to comply with the Warranty set out in clause 5.1 in any of the following events:

5.3.1    The Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;

5.3.2    The defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

5.3.3    The defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;

5.3.4    The Customer orders or repairs such Goods without the written consent of the Supplier;

5.3.5    The defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal storage or working conditions; or

5.3.6    The Goods differ from the Specification as a result of changes made to ensure that they comply with applicable statutory or regulatory requirements.

5.4    Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the Warranty set out in clause 5.1.

5.5    Except as set out in these Conditions, all Warranties, Conditions and other terms implied by statute or common law are to the fullest extent permitted by law, excluded from the Contract.

5.6    These Conditions shall not apply to any repair or replacement Goods supplied by the Supplier.

6. TITLE AND RISK

6.1    The risk in the Goods shall pass to the Customer on notification by the Supplier that the Goods are ready for delivery.

6.2    Title to the Goods shall not pass to the Customer until the Supplier has received payment in full including any VAT payable (in cleared funds) for:

6.2.1    The Goods; and

6.2.2    Any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.

6.3    Until title to the Goods has passed to the Customer, the Customer shall:

6.3.1    Hold the Goods on a fiduciary basis as the Supplier’s Bailee;

6.3.2    Hold the Goods separately from all other goods held by the Customer so they remain readily identifiable as the Supplier’s property;

6.3.3    Not remove, deface or obscure any identifying mark on or relating to the Goods;

6.3.4    Maintain the Goods in satisfactory condition and keep them insured against all risks from the date of notification that the Goods are ready for delivery;

6.3.5    Notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and

6.3.6    Give the Supplier such information relating to the Goods as the Supplier may require from time to time;

But the Customer may use the Goods, in the ordinary course of its business.

6.4    If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into any other product, without limiting any other right or remedy, the Supplier may at any time require the Customer to delivery up the Goods and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7. PRICE AND PAYMENT

7.1    The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.

7.2    Prices quoted, unless otherwise stated, exclude the cost of delivery.  Carriage may be quoted upon request and shown on the Order.  Special packaging is chargeable as extra.

7.3    The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods which is due to:

7.3.1    any factor beyond the Supplier’s control (including foreign exchange situations, increase in taxes and duties and increase in labour, materials and other manufacturing costs);

7.3.2    Any request by the Customer to change the delivery date(s) quantities or types of Goods ordered or the Specification; or

7.3.3    Any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

7.4    The price of the Goods is exclusive of amounts in respect of Value Added Tax (VAT) the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on supply of the Goods.

7.5    The Supplier may invoice the Customer for the Goods on or at any time after the formation of the Contract.  Goods will not be despatched until full payment is received.

7.6    Notwithstanding any credit terms that may have been agreed, the Customer shall pay the invoice in full in cleared funds prior to delivery of the machine. Payment shall be made to the bank account nominated in writing by the Supplier.  Timely payment is of the essence.

7.7    If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), then the Customer shall pay interest on the overdue amount at the rate of interest to which the Supplier is entitled pursuant to the Late Payment of Commercial Debts (Interest) Acts 1998 (as amended) or if higher at the rate of 4% per annum above the Bank of England’s base rate from time to time.  Such interest shall accrue on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment.  The Customer shall pay the interest together with the overdue amount.

7.8    The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part.  The Supplier may, at any time, without limiting any other rights or remedies it may have, set-off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

8. CUSTOMER’S INSOLVENCY OR INCAPACITY

8.1    If the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.

8.2    For the purposes of clause 8.1, the relevant events are:

8.2.1    the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;

8.2.2    the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a Company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

8.2.3    (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

8.2.4    (Being an individual) the Customer is the subject of a bankruptcy petition or order;

8.2.5    a creditor or encumbrancer  of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or part of its assets and such attachment or process is not discharged within 14 days;

8.2.6    (Being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;

8.2.7    (Being a company) a floating charge holder over the Customer’s assets have become entitled to appoint or has appointed an administrative receiver;

8.2.8    A person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over a Customer’s assets;

8.2.9    any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 8.2.1 to 8.2.8 (inclusive);

8.2.10  the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;

8.2.11  the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and

8.2.12  (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

8.3    Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

9. LIMITATION OF LIABILITY

9.1    Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

9.1.1    Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

9.1.2    Fraud or fraudulent misrepresentation;

9.1.3    Breach of the terms implied by section 12 of the Sale of Goods Act 1979;

9.1.4    Defective products under the Consumer Protection Act 1987; or

9.1.5    Any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

9.2    Subject to clause 9.1:

9.2.1    The Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

9.2.2    the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid for the Goods by the Customer.

10. IMPORT DUTY

10.1  If a Customer orders the Goods for delivery outside of the United Kingdom, the Goods may be subject to import duties and taxes which are levied when the Goods reach the specified destination. The Customer shall be responsible for payment of any such import duties and taxes. It shall be the Customers responsibility to contact its local customs office for further information before placing an order.

10.2  It shall be the Customer’s responsibility to comply with all applicable law and regulations of the country for which the Goods are destined. The Supplier shall have no liability for any breach by the Customer of any such laws.

11. FORCE MAJEURE

Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, loss at sea, collapse of building structures, fires, floods, storms, earthquakes, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

12. GENERAL

12.1  Assignment and subcontracting

12.1.1  The Supplier may at any time assign, transfer, charge, subcontract or deal in any other matter with all or any of its rights or obligations under the Contract.

12.1.2  The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.

12.2  Notices

12.2.1  Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier or fax.

12.2.2  A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and time that the courier’s delivery receipt is signed; or, if sent by fax, one Business Day after transmission.

12.2.3  The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

12.3  Severance

12.3.1  If any court of competent authority finds that any provision of the Contract (or any part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

12.3.2  If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

12.4  Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed to be a waiver of any subsequent breach or default. 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

12.5  Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.

12.6  Variation. Except as set out in these Conditions, any variation to the Contract including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.

12.7  Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes and claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.