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terms & conditions

Mikoto CNC Ltd (“Mikoto”) Terms and Conditions

 

The Customer’s attention is drawn in particular to clauses 10 and 11

 

  1. Definitions

The following definitions apply in the Order and these terms and conditions:

 

Confidential Information

any information of a confidential nature concerning the business, affairs, customers, clients or suppliers of the other party or of any member of its Group, including but not limited to information relating to a party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers.

Customer IPRs

all Intellectual Property Rights of which the Customer is the owner or licensee and which are disclosed, licensed or provided to Mikoto pursuant to an Order.

Delivery Date

The delivery date given in the Order.

Delivery Location

The delivery address given in the Order.

Group

in relation to a company, that company, any subsidiary or holding company from time to time of that company and any subsidiary from time to time of a holding company of that company.

holding company

has the meaning given at Section 1159 of the Companies Act 2006.

Improvement

any improvement, development, enhancement, modification or derivative of the Product, or its design or manufacturing process, which would make the Product cheaper, more effective, more useful or more valuable, or would in any other way render the Product more commercially competitive.

Insolvency Event

the Customer becomes insolvent or bankrupt or has a receiving order or administration order made against it or compound with its creditors; the Customer commences to be wound up; the Customer carries on its business under an administrator or administrative receiver for the benefit of its creditors or any of them; 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 this definition; or the Customer ceases, or threatens to cease, to carry on all or substantially the whole of its business.

Intellectual Property Rights or IPRs

patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.

Materials

all forms, manuals, records, artwork and other documents and materials.

Order

an order for Products requested by the Customer.

Products

the products listed in the Order.

Representatives

means the relevant party’s employees, officers, agents, consultants or subcontractors.

Specification

the specification of the Products provided by the Customer.

subsidiary

has the meaning given at Section 1159 of the Companies Act 2006.

Technology

all methods, techniques, discoveries, inventions (whether patentable or not), formulae, formulations, technical and product specifications, equipment descriptions, plans, layouts, drawings, computer programs, assembly, quality control, installation and operating procedures, operating manuals, technical and marketing information, designs, data, know-how and other information.

Tooling

tooling, dies, drills, moulds, presses, vessels, tools and machinery and related items.

Total Order Price

means the amount due from the Customer to Mikoto given in the Order.

VAT

value added tax, or any equivalent tax, chargeable in the UK or elsewhere.

  1. General Provisions

The contract between Mikoto and the Customer shall comprise the Quote, Order (including any Specification) and these terms and conditions and shall only come into effect on Mikoto’s written acceptance of the Order. Any other terms (including Customer standard terms on any pro forma form it uses to issue an Order) shall have no effect unless expressly agreed by Mikoto in writing. No variation of an Order shall be effective unless it is in writing and signed by Mikoto and the Customer.

  1. Supply of Products

Mikoto shall supply the Products for collection on the Delivery Date at the Delivery Location. The Customer shall collect the Products from the Delivery Location and pay the Product Price to Mikoto. The Products shall conform to the Specification and be of satisfactory quality. The Customer is responsible for the accuracy of the Specification, the choice of material used in and the performance of the Products.

Mikoto shall provide a Quote based on the 3D CAD model and detailed 2D drawings provided by the Customer. Budgetary quotes may be generated based on dimensional prints, pictures, photos, 3D models or other parts representations, but a quote will not be binding until final review of 3D CAD model. Any changes to the 3D CAD model shall require an updated quote. When 3D CAD and 2D drawings are supplied, the parts will be manufactured according to the 3D CAD files.

Quotes are based on the 3D CAD model and choice of material provided by the Customer. The Customer is responsible for ensuring that properties and performance of the material selected meet the requirements of their application. Since dimensional tolerances are highly dependent on the material selected and on the part design, Mikoto does not guarantee that a specific tolerance will be met. Tool life is highly dependent on part design and material selection and any tool life estimations provided are estimations only.

Delivery occurs when Mikoto places the Products at the Customer’s disposal at the Delivery Location. A delay in the delivery of an Order shall not entitle the Customer to refuse to take delivery or claim damages. If Mikoto delivers up to and including 5% more or less than the quantity of Products ordered, the Customer shall not be entitled to reject the Order, but a pro rata adjustment shall be made to the payment due.

  1. Title and Risk

Risk in Products shall pass to the Customer at delivery and ownership of the Products shall not pass until Mikoto receives payment for the Products. Until ownership of the Products has passed, the Customer shall store those Products separately from all other goods held so that they remain readily identifiable as Mikoto’s property, not remove, deface or obscure any identifying mark or packaging on or relating to those Products and maintain those Products in satisfactory condition and keep them insured for their full price against all risks with an insurer that is reasonably acceptable to Mikoto.

If ownership of the Products has not passed and an Insolvency Event occurs, the Customer’s right to resell the Products or use them ceases immediately and Mikoto may require delivery of all Products in the Customer’s possession that have not been resold and enter any premises of the Customer or of any third party where the relevant Products are stored to recover them.

  1. Terms of Payment

Mikoto shall be entitled to invoice the Customer from delivery and the Customer shall pay invoices in full and in cleared funds within 30 days of receipt. Payment shall be made to the bank account nominated in writing by Mikoto.

The Product Price is exclusive of VAT and the costs of packaging, insurance and transport of the Products are not included in quoted price and shall be invoiced to the Customer.

The Customer shall pay interest to Mikoto on any overdue amount at the rate of 4% a year above HSBC base rate from time to time and all payments payable to Mikoto by the Customer under an Order shall become immediately due if an Insolvency Event occurs.

  1. Provision of Customer Tooling, Technology and Materials

The Customer shall provide Mikoto Tooling, Technology and Materials necessary to enable Mikoto to manufacture the Products so far as Mikoto does not have the necessary equipment to do so. Mikoto shall not be responsible for any loss or damage to the Customer’s Tooling and Materials, however caused (including fire, explosion, accident, negligence, error, defective workmanship and any acts or omissions etc.) whether or not caused in fulfillment of the Order. Tooling and Materials used to produce Customer’s parts will be stored for a period of 18 calendar months following delivery and will then be destroyed and disposed of without notice.

  1. Cancellation, Amendment and Delivery

If the Customer amends or cancels an Order after it has been accepted by Mikoto, it shall pay Mikoto a reasonable amount for work done and all costs incurred or committed to by Mikoto.

If the Customer fails to take delivery on the Delivery Date or, if notified that the Products are ready for collection and the Delivery Location is Mikoto’s premises, within five calendar days, Mikoto shall store the Products until delivery takes place and the Customer shall pay for all related costs and expenses (including insurance).

  1. Acceptance and Defective Products

The Customer shall be deemed to have accepted the Products seven calendar days after delivery unless it has reported any defects to Mikoto before that date. If any Products supplied are not compliant with the contract then, before acceptance only, the Customer shall have the right to reject the Products affected and the Customer shall be entitled to repair or replacement of the rejected Products or repayment of the price of the rejected Products.

Mikoto shall have no liability for any defect in the Products if:

  1. the Customer makes any use of them after acceptance;
  2. it arises because the Customer failed to follow Mikoto’s instructions for the storage, commissioning, installation, use and maintenance of the Products and good trade practice regarding the same;
  3. it arises as a result of Mikoto following any drawing, design or Specification supplied by the Customer;
  4. the Customer alters or repairs the Products without the written consent of Mikoto; or
  5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
  1. Intellectual Property

Mikoto shall provide the Customer with details of any Improvement which is made, developed or acquired by Mikoto while performing the contract. All IPRs in respect of any Improvement shall belong to the Customer and Mikoto shall take all reasonable steps to effect the transfer to the Customer of such Improvement IPRs, subject to the Customer being responsible for any associated costs. All other IPRs used for the manufacture of the Products that originate from Mikoto shall remain the exclusive property of Mikoto (or, where applicable, the third party licensor from whom Mikoto derives the right to use them).

  1. IPR Indemnity

The Customer shall indemnify Mikoto against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other reasonable professional costs and expenses) suffered or incurred by Mikoto arising out of or in connection with any claim made against Mikoto for actual or alleged infringement of a third party’s IPRs or moral rights arising out of or in connection with the use of the Customer IPRs or the Technology in accordance with these terms and conditions.

If any third party makes a claim, or notifies an intention to make a claim, against Mikoto that may reasonably be considered likely to give rise to a liability under this indemnity (Claim), Mikoto shall:

  1. give written notice of the Claim to the Customer, specifying the nature of the Claim;
  2. not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Customer;
  3. give the Customer and its professional advisers access on reasonable prior notice to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of Mikoto, to enable the Customer and its professional advisers to examine them and to take copies (at the Customer’s expense) to assess the Claim; and
  4. be deemed to have given the Customer sole authority to avoid, dispute, compromise or defend the Claim.

The provisions of this IPR indemnity shall survive the contract.

  1. Limitation of Liability

Nothing in shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation.

Subject to this clause, the Customer shall not be liable, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any: loss of profit; loss of goodwill; loss of business; loss of business opportunity; loss of anticipated saving; loss or corruption of data or information; or special, indirect or consequential damage, suffered by the Customer that arises under or in connection with an Order.

Subject to this clause, Mikoto’s total liability arising under or in connection with the Order, howsoever arising shall be limited to the Total Order Price.

  1. Confidentiality

Each party undertakes that it shall not at any time during the contract, and for two years after disclose to any other person any Confidential Information except:

  1. to its Representatives who need to know this information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with an Order; and
  2. as may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.

Each party shall ensure that its Representatives to whom it discloses the other parties Confidential Information comply with this confidentiality clause.

  1. Governing Law and Jurisdiction

The contract shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with an Order.