imats s.a. terms and conditions for the supply of goods and/or services
Dated 25 March2013
The Customer's attention is particularly drawn to the provisions of clause 10.
(a)Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
IMATS S.A.: company registered Costa Rica with company number 3-101-661925.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 14.8.
Contract: the contract between IMATS S.A. and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from IMATS S.A..
Delivery Location: has the meaning set out in clause 3.2.
Force Majeure Event: has the meaning given to it in clause 14.1(a).
Goods: the goods (or any part of them) set out in the Specification or the Order and includes any tooling as applicable.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Customer's order for the supply of Goods and/or Services, or the Customer's written acceptance of IMATS S.A.'s quotation.
Quotation: the quotation, for goods and/or services, supplied by IMATS S.A. to the Customer prior to an Order.
Services: the services, including any deliverables, supplied by IMATS S.A. to the Customer as set out in the Specification.
Specification: in relation to Goods or Services, any specification (including any relevant plans or drawings) that is agreed in writing by IMATS S.A., as qualified by any conditions set out in the Quotation.
(b)Construction. In these Conditions, the following rules apply:
(b.i)A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b.ii)A reference to a party includes its personal representatives, successors or permitted assigns;
(b.iii)A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(b.iv)Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(b.v)A reference to writing or written includes faxes, e-mails and any other form of written electronic communication.
Annex B.Basis of contract
(a)The Order constitutes an offer by the Customer to purchase Goods and/or Services from IMATS S.A. in accordance with these Conditions.
(b)The Order shall only be deemed to be accepted when IMATS S.A. issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
(c)The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of IMATS S.A. which is not set out in the Contract. Any samples, drawings, descriptive matter or advertising issued by IMATS S.A. and any descriptions or illustrations contained in IMATS S.A.'s catalogues, brochures or websites are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or any other contract between IMATS S.A. and the Customer for the supply of the Goods and/or Services.
(d)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.
(e)Any quotation given by IMATS S.A. shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue unless otherwise stated in writing.
(f)All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
Annex C.Delivery of Goods
(a)IMATS S.A. shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
(b)Unless otherwise agreed, delivery is ex-works and the Customer shall collect the Goods from IMATS S.A.'s premises at Zona Franca Zeta, Bodega #30A, Cartago, Costa Rica (Delivery Location) within three Business Days of IMATS S.A. notifying the Customer that the Goods are ready.
(c)Delivery of the Goods shall be completed on the completion of loading of the Goods at the Delivery Location or the Goods' arrival at such other delivery address as may be agreed, as the case may be.
(d)Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. IMATS S.A. 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 IMATS S.A. with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
(e)If IMATS S.A. fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. IMATS S.A. shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or by the Customer's failure to provide IMATS S.A. with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
(f)The Customer shall not be entitled to reject the Goods if IMATS S.A. delivers up to and including 5 (five) per cent more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
(g)IMATS S.A. may 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.
Annex D.Quality of Goods
(a)IMATS S.A. warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Goods shall:
(a.i)Conform in all material respects with their description and any applicable Specification;
(a.ii)Be free from material defects in design, material and workmanship;
(a.iii)Be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(a.iv)Be fit for any purpose held out in writing by IMATS S.A..
(b)Subject to clause 4.3, if:
(b.i)the Customer gives notice in writing 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 4.1;
(b.ii)IMATS S.A. is given a reasonable opportunity of examining such Goods; and
(b.iii)The Customer (if asked to do so by IMATS S.A.) returns such Goods to IMATS S.A.'s place of business at IMATS S.A.’s cost,
IMATS S.A. shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
(c)IMATS S.A. shall not be liable for the Goods' failure to comply with the warranty in clause 4.1 if:
(c.i)The Customer makes any further use of such Goods after giving a notice in accordance with clause 4.2;
(c.ii)The defect arises because the Customer failed to follow IMATS S.A.'s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c.iii)The defect arises as a result of IMATS S.A. following any drawing, design or specification supplied by the Customer;
(c.iv)The Customer alters or repairs such Goods without the written consent of IMATS S.A.; or
(c.v)The defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
(d)Except as provided in this clause 4, IMATS S.A. shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 4.1.
(e)The terms of these Conditions shall apply to any repaired or replacement Goods supplied by IMATS S.A. under clause 4.2.
Annex E.Title and risk
(a)The risk in the Goods shall pass to the Customer on completion of delivery.
(b)Title to the Goods shall not pass to the Customer until IMATS S.A. has received payment in full (in cash or cleared funds) for:
(b.i)The Goods; and
(b.ii)Any other goods that IMATS S.A. has supplied to the Customer.
(c)Until title to the Goods has passed to the Customer, the Customer shall:
(c.i)Hold the Goods on a fiduciary basis as IMATS S.A.'s bailee;
(c.ii)Store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as IMATS S.A.'s property;
(c.iii)Not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c.iv)Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on IMATS S.A.'s behalf from the date of delivery;
(c.v)Notify IMATS S.A. immediately if it becomes subject to any of the events listed in clause 12.1(b) to clause 12.1(l); and
(c.vi)Give IMATS S.A. such information relating to the Goods as IMATS S.A. may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.
(d)If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 12.1(b) to clause 12.1(l), or IMATS S.A. reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy IMATS S.A. may have, IMATS S.A. may at any time require the Customer to deliver 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.
Annex F.Supply of Services
(a)IMATS S.A. shall provide the Services to the Customer in accordance with the Specification in all material respects.
(b)IMATS S.A. shall use all reasonable endeavours to meet any performance dates for the Services specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
(c)IMATS S.A. shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and IMATS S.A. shall notify the Customer in any such event.
(d)IMATS S.A. warrants to the Customer that the Services will be provided using reasonable care and skill.
Annex G.Change Control
(a)If either party wishes to change the Specification, it shall submit details of the requested change to the other in writing.
(b)If the Customer requests a change to the Specification, IMATS S.A. shall, within a reasonable time, provide a written estimate to the Customer of:
(b.i)The likely time required to implement the change;
(b.ii)Any variations to IMATS S.A.’s charges arising from the change; and
(b.iii)Any other impact of the change on the terms of the Contract.
(c)If IMATS S.A. requests a change to the Specification, the Customer shall not unreasonably withhold or delay consent to it.
(d)If the Customer wishes IMATS S.A. to proceed with the change, IMATS S.A. has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Specification and any other relevant terms of the Contract to take account of the change.
Annex H.Customer's obligations
(a)The Customer shall:
(a.i)Ensure that the terms of the Order and the information it provides in the Specification are complete and accurate, for Goods and/or Services;
(a.ii)Co-operate with IMATS S.A. in all matters relating to the Services;
(a.iii)Provide IMATS S.A., its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by IMATS S.A. to provide the Services;
(a.iv)Provide IMATS S.A. with such information and materials as IMATS S.A. may reasonably require to supply the Goods and/or Services, and ensure that such information is accurate in all material respects;
(a.v)Prepare the Customer's premises for the supply of the Services;
(a.vi)Obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(a.vii)Keep and maintain all materials, equipment, documents and other property of IMATS S.A. (IMATS S.A Materials) at the Customer's premises in safe custody at its own risk, maintain IMATS S.A’s. Materials in good condition until returned to IMATS S.A., and not dispose of or use IMATS S.A.’s Materials other than in accordance with IMATS S.A.'s written instructions or authorisation; and
(b)The Customer shall ensure that any specification for Goods or tooling produced by it to IMATS S.A. shall be accurate and fit for purpose in producing the relevant Goods. For the avoidance of doubt, the act of agreeing such specification shall impose no liability on IMATS S.A. in connection with the accuracy or fitness for purpose of such specification. To the extent that any such specification proves to be inaccurate or not fit for purpose, the Customer shall indemnify IMATS S.A. for any additional costs incurred in producing the relevant Goods and shall pay IMATS S.A. for any additional Services required to produce the relevant Goods.
(c)If IMATS S.A.'s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(c.i)IMATS S.A. shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays IMATS S.A.'s performance of any of its obligations;
(c.ii)IMATS S.A. shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from IMATS S.A.'s failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c.iii)The Customer shall reimburse IMATS S.A. on written demand for any costs or losses sustained or incurred by IMATS S.A. arising directly or indirectly from the Customer Default.
Annex I.Charges and payment
(a)The price for Goods shall be the price set out in the Quotation or, if no price is quoted, the price set out in IMATS S.A.'s published price list as at the date of delivery. Unless otherwise agreed the price of the Goods is exclusive of all costs and charges of insurance and transport of the Goods, which shall be paid by the Customer when it pays for the Goods.
(b)Where applicable the charges for Services shall be as detailed in the Quotation.
(c)Any additional services shall be charged on a time and materials basis as notified by IMATS S.A. to the Customer from time to time.
(d)IMATS S.A. shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom IMATS S.A. engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by IMATS S.A. for the performance of the Services, and for the cost of any materials.
(e)IMATS S.A. reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to IMATS S.A. that is due to:
(e.i)any factor beyond the control of IMATS S.A. (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(e.ii)any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification in respect of the Goods; or
(e.iii)any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give IMATS S.A. adequate or accurate information or instructions in respect of the Goods.
(f)In respect of Goods, IMATS S.A. shall invoice the Customer on or at any time after completion of delivery or as otherwise provided in the Quotation. In respect of Services, IMATS S.A. shall invoice the Customer as detailed in the Quotation or otherwise on completion of the relevant Services. Any payment made prior to delivery in accordance with any payment schedule set out in the Quotation shall be treated as a non-refundable deposit.
(g)The Customer shall pay each invoice submitted by IMATS S.A.:
(g.i)Within 30 days of the date of the invoice, unless otherwise agreed; and
(g.ii)In full and in cleared funds in the currency and to a bank account nominated in writing by IMATS S.A., and time for payment shall be of the essence of the Contract.
(h)All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by IMATS S.A. to the Customer, the Customer shall, on receipt of a valid VAT invoice from IMATS S.A., pay to IMATS S.A. such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
(i)Without limiting any other right or remedy of IMATS S.A., if the Customer fails to make any payment due to IMATS S.A. under the Contract by the due date for payment (Due Date), IMATS S.A. shall have the right to charge interest on the overdue amount at the rate of three (3) per cent per annum above the then current HSBC Bank's base lending rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
(j)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 IMATS S.A. in order to justify withholding payment of any such amount in whole or in part. IMATS S.A. may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by IMATS S.A. to the Customer.
(k)Until all amounts due under the Contract have been paid in full, IMATS S.A. shall have a general lien on any tooling or other property belonging to the Customer, exercisable in respect of all sums lawfully due from the Customer to IMATS S.A.
IMATS S.A. shall be entitled, on the expiry of 14 days' notice in writing, to dispose of such tooling or other property in such manner and at such price as it thinks fit and to apply the proceeds towards the amounts outstanding.
(a)A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. Information is excepted that is
(a.i)Subject to an obligation to disclose under law, or that is required to be disclosed by any competent regulatory authority, by notice or otherwise; or
(a.ii)Already in the Receiving Party’s possession other than as a result of a breach of this clause 9; or
(a.iii)In the public domain other than as a result of a breach of this clause 9.
(b)This clause 9 shall survive termination of the Contract.
Annex K.Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
(a)Nothing in these Conditions shall limit or exclude IMATS S.A.'s liability for:
(a.i)Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(a.ii)Fraud or fraudulent misrepresentation;
(a.iii)Breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(a.iv)Breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(a.v)Defective products under the Consumer Protection Act 1987.
(b)Subject to clause 11.1:
(b.i)IMATS S.A. shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from a deliberate breach of the Contract by IMATS S.A., its employees, agents or subcontractors); and
(b.ii)IMATS S.A.'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, including losses caused by a deliberate breach of the Contract by IMATS S.A., its employees, agents or subcontractors, shall not exceed the aggregate price of the Goods and Services supplied under the Contract.
(c)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.
(d)This clause 11 shall survive termination of the Contract.
(a)Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a.i)The other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 20 days after receipt of notice in writing of the breach;
(a.ii)The other party 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;
(a.iii)The other party 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 a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(a.iv)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 other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(a.v)The other party (being an individual) is the subject of a bankruptcy petition or order;
(a.vi)A creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(a.vii)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 other party (being a company);
(a.viii)A floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(a.ix)A person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(a.x)Any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1(b) to clause ) (inclusive);
(a.xi)The other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(a.xii)The other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
(b)Without limiting its other rights or remedies, IMATS S.A. may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
(c)Without limiting its other rights or remedies, IMATS S.A. shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and IMATS S.A. if:
(c.i)The Customer fails to make pay any amount due under this Contract on the due date for payment; or
(c.ii)The Customer becomes subject to any of the events listed in clause 12.1(b) to clause 12.1(l), or IMATS S.A. reasonably believes that the Customer is about to become subject to any of them.
Annex M.Consequences of termination
On termination of the Contract for any reason: