Terms & Conditions of Sale

 
In these Conditions:
 

"Customer" means the purchaser, as specified in the Order Confirmation, of Goods and/or Services;

"XAAR" means the XAAR company in whose name the invoice for the Goods and/or Services is issued to the Customer, being either Xaarjet Limited of Science Park, Cambridge, England CB4 0XR or Xaarjet AB of Box 516, SE-17526, Järfallä, Sweden;

"Conditions" means the terms and conditions of sale set out herein;

 "Contract" means the contract for the supply of Goods and/or Services as further defined in clause 7.1;

"Goods" means the goods specified in the Order Confirmation;

"Order Confirmation" means the written notification issued by Xaar to the Customer indicating acceptance of the Customer's order (and where more than one such notifications are issued, shall mean the last such notification);

"Requirements Contract" means the signed written agreement, if any, between XAAR and the Customer setting out (amongst other things) the Customer's purchase commitment in relation to goods supplied by XAAR;

"Services" means the services (if any) specified in the Order Confirmation;

"Terms of Warranty" means XAAR's published printhead warranty  in force from time to time.

1        Price and Payment

1.1     The price payable by the Customer under the Contract shall be as stated in the Order Confirmation or if no price is stated as calculated according to XAAR's relevant price list in force as at the date of the Order Confirmation.

1.2     XAAR shall invoice the Customer for the whole or any instalment of Goods and/or provision of Services on or after delivery of such Goods or part thereof and/or provision of such Services (as the case may be).

1.3     The Customer shall pay XAAR the amount due under the invoice within the period stated in the Requirements Contract or, if not specified or applicable, within 30 days of the invoice date.  Payment shall be in pound sterling.

1.4     XAAR reserves the right to charge interest at a daily rate of the greater of either 3% per annum above the base rate of Barclays Bank plc from time to time, or the maximum rate of interest allowable under the Late Payment of Commercial Debts (Interest) Act 1998, on all sums outstanding until payment in full is received. The Customer may not set off any complaint or cross claim against any sum owed to XAAR.

1.5     Unless otherwise stated, all payments due to XAAR under the Contract are exclusive of value added tax (or any equivalent taxes), import or export duties and handling or delivery charges ("Taxes"). The Customer shall be responsible for payments of all Taxes (other than those associated with XAAR's income).

2        Delivery

2.1     Unless otherwise stated in the Order Confirmation all Goods shall be delivered EXW (Incoterms 2000) at the premises of XAAR or its authorised agent.

2.2     XAAR reserves the right to deliver by instalments.

2.3     XAAR shall use all reasonable endeavours to deliver the Goods and/or provide the Services on the date agreed with the Customer.  However late delivery of the whole or any instalment of the Goods or late provision of Services or any part thereof does not entitle the Customer to reject the Goods or Services (as the case may be), terminate the Contract, or withhold payment of any part of the Contract price.

2.4     If delivery of Goods or provision of Services is not possible due to any act, omission or default of the Customer, XAAR may charge the Customer with any reasonable transportation, storage or other costs thereby incurred, or without prejudice to its other rights and remedies may terminate the Contract.

3        Property and Risk

3.1     Risk of any damage to or loss of the Goods shall pass to the Customer at the time of delivery.

3.2     Property in the Goods shall not pass to the Customer until the price of the Goods is paid for in full and no other amounts are owed by the Customer in respect of any other goods or services provided by XAAR.

3.3     Until such time as property in the Goods passes:

3.3.1   it is the responsibility of the Customer to insure the Goods against all insurable risks to an amount equal to the invoice price (excluding VAT or equivalent taxes) of the Goods;

3.3.2   the Customer shall be entitled to resell the Goods but shall hold the proceeds of sale on trust for XAAR and if so required shall account to XAAR for such proceeds.

4        Confidentiality and Intellectual Property Rights

4.1     All sample kits, operation guides, technical specifications, pricing schedules or any other such written materials supplied by XAAR to the Customer in connection with the Goods or Services or the Contract are supplied in confidence and shall not be disclosed by the Customer to any third party without XAAR's prior written consent.

4.2     All intellectual property rights (including but not limited to patents, copyright, design rights and trade marks) in, and all inventions, discoveries or improvements relating to, all Goods and/or Services and any materials or documentation relating thereto shall as between the Customer and XAAR belong to XAAR.

5        Warranties and Liability

5.1     XAAR's sole warranty OBLIGATIONS shall be as set out in the Terms of Warranty (AS DEFINED). All OTHER conditions or warranties, express or implied, statutory or otherwise (including without limitation as to quality, performance, merchantability or fitness or suitability for purpose) are excluded to the fullest extent permissible by law.

5.2     Unless otherwise stated in the Order Confirmation, XAAR shall not be liable in respect of any damage caused during or as a result of transportation or carriage of the Goods (AS DEFINED).

5.3     Subject to clause 5.5, AND SUBJECT TO MANDATORY LOCAL LAWS, XAAR shall not in any circumstances be liable to the Customer whether in contract, tort, breach of statutory duty or otherwise in respect of any loss of profits, revenue, GOODWILL, BUSINESS OPPORTUNITY, DATA or contracts or for any indirect, SPECIAL, PUNITIVE or consequential loss, damage, costs or expenses whatsoever or howsoever arising out of or in connection with the Contract (AS DEFINED) AND REGARDLESS OF WHETHER XAAR HAD KNOWLEDGE OF THE POTENTIAL FOR ANY SUCH LOSS.

5.4     SUBJECT TO CLAUSE 5.5, XAAR'S TOTAL LIABILITY arising out of or in connection with the Contract (AS DEFINED) SHALL BE LIMITED IN AGGREGATE TO THE LESSER OF EITHER £500,000 OR 125% OF THE PRICE PAID FOR THE GOODS (AS DEFINED) AS DETERMINED IN ACCORDANCE WITH CLAUSE 1.1 HEREOF.

5.5     Nothing in these Conditions shall exclude XAAR's liability in respect of death or personal injury caused by its negligence OR WILFUL MISCONDUCT or in respect of any fraudulent misrepresentation.

5.6     The Customer hereby acknowledges that the price of the Goods payable under the Contract has been negotiated and agreed on the basis that the parties may exclude or limit their liability as set out in these Conditions. The Customer hereby confirms that it will insure against any loss for which XAAR has limited or excluded liability hereunder.

6        Termination

6.1     If the Customer fails to pay XAAR in accordance with clause 1.3, without prejudice to any other rights or remedies:

6.1.1   XAAR may terminate the Contract with immediate effect and recover all Goods for which it holds legal title in accordance with clause 3 and may enter or instruct its authorised agents to enter the Customer's premises for this purpose;

6.1.2   if deliveries are to be made in instalments XAAR may suspend or cancel further deliveries; and

6.1.3   XAAR shall be entitled to revoke any credit facilities and/or to require payment in advance for all future Contracts.

6.2     If the Customer enters into a voluntary arrangement with creditors, becomes insolvent or bankrupt, has a petition presented for its winding up, passes a resolution for voluntary winding-up, becomes the subject of an administration order or has a receiver appointed, XAAR may treat the Contract as having terminated and suspend any further deliveries, and all monies then owing shall immediately become due regardless of any previous agreement to the contrary.

6.3     The Contract may on the reasonable written notice of XAAR be terminated in the event of circumstances outside the reasonable control of XAAR, and XAAR shall not incur any liability thereby for failure to manufacture or deliver the Goods. Such circumstances include (without limitation) war, terrorism, riot, explosion, lightning, fire, flood, shortage of raw materials and strike.

7        General

7.1     These Conditions, the Requirements Contract (if any), the Order Confirmation and the Terms of Warranty (and the documents referenced therein) shall together comprise the entire Contract, and shall together prevail over any inconsistent terms which the Customer may seek to introduce. In the event of any conflict of terms under the Contract, the order of precedence shall be as follows: (i) Requirements Contract; (ii) Order Confirmation; (iii) Conditions; (iv) Terms of Warranty.

7.2     The Contract constitutes the entire agreement between the parties in respect of the subject matter thereof and supersedes and replaces all prior agreements and discussions between the parties relating to it. The Customer confirms and acknowledges that it has not been induced to enter the Contract by any representation, warranty or undertaking not expressly incorporated into it.  However nothing in the Contract purports to exclude liability for any fraudulent statement or act.

7.3     No variation of these Conditions shall be valid unless in writing and signed by a director of XAAR and an authorised representative of the Customer.

7.4     The Customer shall not without XAAR's prior written consent assign, transfer, charge, sub-contract or otherwise deal with any of its rights or obligations under the Contract.  XAAR may assign or sub-contract any part of the Contract.

7.5     If any term of the Contract is held by the Court to be unlawful and struck out, the validity and enforceability of the remainder of the Contract shall not be affected.

7.6     Any notice to be given under the Contract shall be in writing (and in the case of XAAR marked for the attention of the Company Secretary) and shall be delivered by hand, sent by next day courier or sent by fax (such notice to be confirmed by letter posted within 12 hours) to the address or fax number of the other party set out in these Conditions or the Order Confirmation or as otherwise notified.  Any such notice shall be deemed to be served: if delivered by hand or by courier - at the time of delivery; and if sent by fax - the next business day after the fax was dispatched.

7.7     The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract and nothing therein shall confer or purport to confer on any third party any benefit or right to enforce any term of the Contract.

7.8     The Contract and these Conditions shall be governed by the laws of England without regard to the U.N. Convention on the International Sale of Goods.  The parties irrevocably agree to submit to the non-exclusive jurisdiction of the English courts.

7.9     XaarJet Ltd are component Producers selling exclusively Business to Business. Under Article 9 of WEEE Directive 2002/96/EC when purchasing components, systems or sub assemblies from XaarJet Ltd our customers contract to dispose of all product at their own expense.